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Showing posts from August, 2009

News on the Laptop Search Front

There has been activity in DHS on Customs and Border Protection policy regarding laptop searches. First, I tweeted a while back that the ACLU has sued Homeland Security for access to records regarding the searches. On August 18, 2009 Immigration and Customs Enforcement issued a directive (7-1.6) on the topic. The ICE directive continues the policy that the border search of electronic devices does not require the consent of the arriving traveler and, by implication, does not require suspicion directed at that traveler. At any point during the search, the electronic device may be detained for further review including further review by another federal agency or a third party. ICE does say that the Special Agent has the discretion to copy the contents of the device for later review and return the original to the traveler. Searches are "generally" to be completed within 30 calendar days. If outside assistance is employed, the search must be completed within a reasonable t

Note to Rita Moreno: You are an American!

[Note: Yes, I screwed this up. Read the comments. Now, excuse me while I kiss this guy.] In West Side Story, the Puerto Rican character Anita (played by Ms. Moreno) sings that she wants to be an American (in mixed 6/8 3/4 time). It turns out that she is. At least as far as the U.S. Court of International Trade is concerned. OK, maybe that is an over statement. In Puerto Rico Towing & Barge Co. v. United States , the ultimate issue is whether a port in Puerto Rico is a "port of the United States." The case involves the U.S.-flagged M/V Honcho, which operates out of San Juan. Under U.S. law, there is a 50 percent duty imposed on the value of vessel repairs performed abroad on U.S. flagged vessels. One exception to this rule is for vessels that have no landed at a U.S. port for two years. Seeking to invoke this exception, the Honch argued that San Juan, Puerto Rico is not a U.S. port. The problem for the plaintiff in this case is that 19 USC sec. 1401(h) defines &quo

I am NOT a Collections Lawyer

There are lots of legal specialties. There are space lawyers , oil and gas lawyers , internet lawyers , and customs lawyers . There are also collection lawyers. These are the people you go to when you are having trouble collecting on a debt. They work for banks and other creditors. It is a fairly complicated area of law. I am not a collections lawyer. Unfortunately, there is an apparently well-known collection lawyer named Lawrence M. Friedman in Chicago (he may have retired by now). Occasionally, a police officer shows up at my office to serve a summons to that Lawrence Friedman. It always raises my blood pressure just a bit until we figure out what is going on. I raise this only to address the enormous amount of e-mail I am now getting about collections law. Most other lawyers in the country are getting the same e-mails. They come primarily from Asia and supposedly on behalf of companies seeking counsel to help them collect delinquent payments from U.S. customers. This w

Don't Do the Crime . . . .

Entrapment is a funny legal concept. People who feel that they got a ticket or were arrested when the police used unsporting means often claim entrapment. But, hiding a police car behind a hedge to catch speeders is not entrapment in the technical sense. It's a trap, but not a defense. Why? Because the speeder was speeding and obviously was perfectly willing to do so. The hidden cruiser did not make the driver speed. I'm thinking of this because I noticed in today's Federal Register that a local man has been debarred from exporting due to violations of the International Traffic in Arms Regulations. Here is the Immigration and Customs Enforcement press release from his sentencing last year. This guy worked at O'Hare and had security clearance to go just about anywhere. ICE was tipped off that he would, for a fee, arrange for the illegal export of currency on commercial airplanes. In a sting operation, ICE did that a couple times, but did not arrest him. Inst

Going Incognito

I'll be unbloggable for the remainder of the week. Just to make sure you miss me, I'll leave you with these bits of interesting information to discuss among yourselves. First, I will not be doing an analysis of Depersia v. U.S. I've talked about broker license exam appeals before and there is not much to say. Second, here is an interesting article from today's New York Times on a shake up in Mexican Customs border personnel. The intent is to fight corruption and staunch the flow of drugs (one assumes northward). Third, everybody should read this from the Journal of Commerce. The Customs Reauthorization Act of 2009 would do more than provide funding to keep the agency running. It would go a long way toward refocusing the agency on commercial facilitation. I breathe an anticipatory sigh of relief. Among other things, the bill would create a new position of Principal Deputy Commissioner for facilitation. A different deputy commissioner would be responsible fo

CAFC Remands Broker Penalty Case

On August 11, the Federal Circuit issued an opinion in UPS Customhouse Brokerage . We have covered this case a number of times including here , here , and here . The really interesting question in UPS is whether there is a statutory limitation on the penalties that can be assessed against brokers. UPS has argued that 19 U.S.C. § 1641(d)(2)(A) should be read to limit the liability for all violations prior to the notice of penalty to $30,000. Unfortunately, that issue is not decided in this decision. Rather, the Court of Appeals first held that UPS had been using the wrong tariff classification. This is despite a fancy legal argument based on the last antecedent rule. That's one of my customs lawyer favorites. It posits that an adjectival phrase modifies the previous noun most close to it. So, according to UPS, when the HTSUS says "parts and accessories of machines of heading 8471: Not incorporating a cathode ray tube," it covers parts and accessories of machines t

A Lesson on AGOA

Getting Customs and Border Protection to accept a claim for duty-free entry under the African Growth and Opportunity Act is becoming a tough task for your local customs lawyer. That is easily seen in Polly U.S.A. v. United States, a recent decision of the Court of International Trade. The background story is pretty common. The importer claimed an AGOA preference on merchandise it imported from Swaziland, which is a designated Sub-Saharan beneficiary country. Customs and Border Protection requested documents that verify the origin. Polly produced some documents, but CBP rejected claim. This left Polly no choice but to protest and, when the protest was denied, to file a case at the Court of International Trade. In the CIT, things did not go well for Polly, which raised two arguments. First, Polly claimed that Customs had authority to seek additional backup documents only when the country of origin was not plain from the entry documents. This is not correct. The AGOA regulation

Warning: This Blog Looks Spammy

I received a notice from Blogger today that this blog has been flagged as spam. According to Blogger, spam blogs have certain similar characteristics including: " irrelevant, repetitive, or nonsensical text, along with a large number of links, usually all pointing to a single site." I guess to Blogger's computers things like CBP, C-TPAT, ISA, ISF, ADD, CIT, ITC, and ITA look like nonsensical text. Come to think of it, sometimes they look that way to me as well. I have appliled for a review and expect no problems.

A Cry for Help (Amended)

Note: I cleaned this up a bit for clarity and to eliminate evidence of my poor typing skills. An anonymous commenter asked for an explanation of the difference between NAFTA marking, NAFTA originating, and origination for purposes of government procurement. That's a tall order, but here is a start. As I said here , determining whether some good is NAFTA originating does not tell you its country of origin. The NAFTA rules of origin embodied in HTSUS General Note 12 only tell you whether the article can be considered to have North American origin and, therefore, can be granted NAFTA duty benefits on entry. But, if the thing contains materials or labor from more than one NAFTA country, the Note 12 rules do you no good in figuring out what country to declare as the origin and how to mark the product itself. For that, you have to turn to the so-called NAFTA marking rules. Those are not in HTSUS 12(t). [Repeat that to yourself if you must.] Rather, they are in the Customs Regul