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Showing posts from December, 2005

Privilege & Waiver & Complaints: Oh, My!

The Court of International Trade had an interesting question in the latest chapter of the Optrex penalty litigation. To understand this, you need to know about the first chapter. Optrex is an importer of liquid crystal display devices. It ran into a classification problem and received a notice of penalty from Customs. So far, this is fairly routine. What makes it interesting is that Optrex claimed that there should be no penalty because it had relied on advice of counsel, which is evidence of reasonable care. Hearing that, Customs said, "prove it" and asked to see the advice. Optrex declined citing attorney-client privilege. Obviously that put Customs in a bind. It could not make any kind of reasonable care decision simply on the basis of Optrex's assertion that it sought the advice of counsel. At the same time, Optrex has a right to assert the privilege. It also has a right to waive the privilege; either on expressly or through its actions. In Court last yea

Customs Goes MTV

I have repeatedly said that the work CBP does is important. For the most part, CBP handles its job in a professional and respectful way. It also needs a bit of marketing to let people know the important job it does and may need to attract some new folks to do it. That is probably why it has posted some videos explaining Customs to the world. I am particularly taken by this one . It has "Miami Vice-ish" music; James Bondy shots of fast boats, cars and even horses; and some peeks at high-tech looking gadgets. It also has a bit of pathos in that CBP personnel are shown saving lives in what appears to be the desert along the southern border. You know they are saving lives because the video includes a helpful title sliding across the screen saying "Saving Lives." Other titles include "Preventing terrorism," "Securing Our Borders," and "Seizing Contraband." The two things I like best are first that the file is actually called "cbp_musi

Turf Fights & Job Openings

It seems that the press is picking up on the apparent mess at Homeland Security. This Newsweek article notes that the issues go way beyond my question of whether it makes sense to keep CBP and ICE as two separate agencies. It turns out that all three border control agencies--Customs & Border Protection, Immigration & Customs Enforcement, and the Citizenship & Immigration Service--all lack a leader. In addition, there are apparently ongoing issues between CBP and ICE relating to turf and money. The article says these fights are sapping morale and debilitating the agencies. So, let's get it over with and merge at least CBP and ICE. And, since the President seems to be having trouble finding a leader for the agencies, I hereby volunteer for the top job in the merged agency. Mr. President, feel free to call me at the office.

Something Squirrely at CBP

This doesn't require much in the way of comment. It is worth noting that the story was carried in at least 40 media outlets checked by my automated news search.

Broken heroes on a last chance power drive

Sorry Bruce, make that "power strip." It's a funny thing that Customs still puts out the Customs Bulletin . Seems like there is no point. Between a posting to its web site and a Federal Register notice, it seems like they should be able to have everything sufficiently public. But, they still put it out. And, every now and then, I find something surprising in it. Today, I discovered that your basic surge protector-type power strip is not actually a device for protecting electrical circuits under 8536.30.80, which has a duty rate of 2.7%. Why would I ever have thought that? Well, because power strips generally include a fuse or circuit breaker and also circuitry to filter out spikes in voltage. The reason you use them is to protect the sensitive circuits in your expensive electronics. So, on its face, 8536 seems like a good heading for their classification. This makes so much sense that Customs issued a bunch of rulings to this effect. Not so fast. Customs correctl

Kate Moss not on the Most Wanted List

Immigration and Customs Enforcement posts its list of the most wanted criminal aliens . These are all bad guys and there is really nothing funny about the list except that model and alleged cocaine abuser Kate Moss is not on the list. Why am I thinking about this? Because this article quotes a Customs & Border Protection spokesperson saying that if Kate Moss is convicted of a crime in the U.K., she won't be admitted to the U.S. to work. Consequently, it appears that Ms. Moss is staying out of the U.K. and not planning to cooperate in the investigation. Maybe she will get the Noriega treatment.

Is this legal?

Is it legal to sell a Customs & Border Protection uniform patch, like this person is doing? I know I am the customs lawyer and I am supposed to have the answers to these questions. But, I'm not sure about this and I don't plan to look it up. If anyone knows, please drop a comment.

Customs Does Gucci a Solid

Customs maintains an active enforcement program relating to intellectual property laws. This is the job of the Intellectual Property Rights Branch at headquarters. The job of the IPR branch is to prevent the illegal importation of goods bearing infringing trademarks, trade names, or unauthorized reproductions of copyrighted works. As I mentioned previously, they are also responsible for the enforcement of laws relating to traffic in cultural properties . I have always thought that heading up that branch would be a great job. In law school, I was very interested in intellectual property law and actually went to the trouble of getting an LL.M. in the field. It comes in handy now when clients have IPR related issues come up at the border. The easy cases for Customs to deal with involve counterfeit merchandise. This is what happened with Gucci (plus Coach and Burberry) at the port of Norfolk. Customs seized a shipment of almost 2,000 boxes of counterfeit handbags, wallets, and backpacks

So, Maybe I am Right

Does former Customs Commissioner Bonner read my blog? I doubt it. But, we appear to agree on one thing: CBP and ICE should be merged into a single border enforcement agency. I said this in a previous post . Now, the former Commission has publicly said the same thing to the Washington Times . Does that make a groundswell? ADDENDUM (12/13/2005): Oddball blogger and conservative columnist Debbie Schlusse l agrees with me, too. Now I feel dirty.

Two Quick Notes:

That must be what they mean by "trade facilitation." It has recently been noted in the press that the uniforms worn by our Border Patrol are purchased from a company in Tennessee that has outsourced the manufacturing to Mexico. Hence, U.S. Border Patrol Agents are wearing uniforms with a "Made in Mexico" label on the collar. According to the Border Patrol union president, "It's embarrassing to be protecting the U.S.-Mexico border and be wearing a uniform made in Mexico." I guess I don't see the issue. It would be embarrassing for a Border Patrol Agent to be, say, employing an illegal alien as a housekeeper. Wearing a uniform made in Mexico seems OK. At least it is properly marked with its country of origin. Blogger held up in Immigration A Canadian blogger who online claimed to be from New York, rather than Toronto, and who carried a magazine mailed to him at a New York address got detained when trying to enter the U.S. The story is reported h