Customs Law

The Court of International Trade has exclusive jurisdiction to review Customs & Border Protection's denial of a valid protest, including a protest of the exclusion of merchandise. 28 USC 1581(a) (CIT jurisdiction) and 19 USC 1514(a)(4) (exclusions are protestable). An exclusion can happen in two ways. First, CBP can make an affirmative decision on admissibility within 30 days of the merchandise being presented for examination.  After those 30 days and if the merchandise has still not been released, the goods are "deemed excluded." 19 USC 1499(c)(5)(A). Deemed exclusions are as protestable as affirmative exclusions. A seizure, on the other hand, is subject to the exclusive jurisdiction of the U.S. District Court in the district where the merchandise is located. 28 U.S.C. 1356 . A seizure is not an exclusion and is not protestable. In other words, seizure and exclusion are two distinct legal actions subject to two distinct avenues of review.  The process CBP must follo...

ICCS USA v. United States is the last 2018 decision of the Court of International Trade we will cover here. Technically, I am  timely because the pubic version of this opinion was posted in 2019. This is an interesting look at how Customs and Border Protection enforces certification marks at the border. It also illustrates some of the inner workings of Underwriters Laboratories, the private agency that issues the well-known UL in a circle mark. ICCS imports butane canisters that were produced by a company in Korea called One Jung Can Mtf. Co. Ltd., ("OJC"). The canisters are marketed under the name "PREMIUM." As far back as 2001, OJC applied for and received UL certification for its "MEGA-1" model butane canisters. That certification was current through February 2017. Accordingly, OJC was authorized to place the UL mark on the MEGA-1 cylinders as a sign that they have been tested and conform to the UL safety standards. This case is not about MEGA-1 ca...

Sometimes, the most interesting customs cases are not litigated at the Court of International Trade. They are in the U.S. district courts and involve important constitutional and administrative law principles not related to duties and penalties. Two of those deserve note here. This post will cover the first. And, yes, I know there are more routine CIT and CAFC cases to address. Someone [a former government official who, despite this crack, I still like] event recently chastised me for being behind here. I promise you that my self-appointed obligation to the trade community weighs heavily on me. I will try to catch up. But first is U.S. v. Kolsuz . This case involves CBP's suspicion-less search of a cell phone. As background, you need to know that the law has been clear for decades that Customs and Border Protection is allowed to search cargo and the personal effects of arriving passengers without a warrant and without even particularized suspicion that they might contain evid...

Had I been thinking and available to do it, I would have posted this on April 20 . Sorry I am late. Grab some snacks, because we are about to discuss HQ H282163 (Apr. 13, 2017) , which addresses whether a storage case with multiple adjustable compartments and a combination lock closure is prohibited merchandise. Why would that be the case? It might help to know that the cases go by the name "Stashlogix" and come in three modes: Go-Stash, Eco-Stash and Pro-Stash. In addition to the combination lock, other Stashlogix features include a "stash journal" to "help keep track of all those crazy names," a UV-proof jar that can be re-labeled, odor absorbing packs, and a labeling marker. The products are designed "based on the principles of functionality, security, and discretion." The company advertises that the cases are used to store valuable private items such as fire-arms and addictive pharmaceuticals. Here is a picture of the "Pro-Stash...

Because this is the 21st Century, I figured I should try more than one media. Below is the recording of a webinar I conducted with my colleague Chuck Joern . Consumer Products and Import Requirements from Barnes Global Trade on Vimeo .

Customs seized some televisions at the Port of Miami. The reason was an apparent counterfeiting of the trademarks HDMI and MHL, both of which are interface connections. You have probably seen HDMI cables and connectors. They look like big USB connectors and are present on may modern televisions, computers, and game consoles. MHL is the standard for Mobile High-Definition Link, which is a new standard designed to connect small devices such as smart phones to larger HD monitors. With an MHL connection, you can use your smartphone to stream content to your TV, which is a cool thing that can now be done via Chromecast or Miracast . I don't usually write about simple seizures, but this one and similar seizures bug me. Customs and Border Protection is in the habit of seizing electronics that identify electronic ports by type. For example, where a tablet has a USB port and labels it as such, CBP requires that the producer have a license to use the USB label, which is a registered t...

Another day, another update on the law of border searches. Without an opinion, the Supreme Court has let the Cotterman conviction stand. Here is a press report.  This decision is a bit of a victory for privacy advocates in the 9th Circuit, but Cotterman stays in jail. The 9th Circuit decision holds that a forensic search of digital media is requires particularized suspicion and is not allowable simply as part of a routine border search. Here is my last posting on the issue.

Remember my post on U.S. v. Cotterman ? You should read that as background. Also, remember that I am speaking at the Georgetown ITU again this year. For that talk, I have been reading up on the state of litigation involving Customs and Border Protection's searches of digital media. Below is a portion of what I prepared for Georgetown. You'll have to register to attend to get everything. In an effort to mount a broader challenge to Customs’ policies regarding border searches of digital media, the National Association of Criminal Defense Lawyers, the National Press Photographers Associations and an individual named Pascal Abidor brought a case in the Eastern District of New York seeking a declaratory judgment that border searches of digital media without particularized suspicion of criminal activity are unconstitutional violations of both the First and Fourth Amendments. See, Abidor, et al. v. Napolitano, et al., Court No. 10-CV-04059 (Slip Op. Dec. 31, 2013).   Abidor, a gr...

The scope of Customs and Border Protection's authority to search and seize digital devices including laptops and phones has been a matter of controversy for several years. The most recent detailed discussion of this from a federal court is in United States v. Howard Cotterman . As with many of these cases, the facts are unpleasant. Mr. Cotterman drove from Mexico into the United States via the Lukeville, Arizona port of entry (formerly known as Gringo Pass ). Lukeville has a population of 35. Cotterman is a registered sex offender who was previously convicted of several child-sex related offenses. Because of that history, Cotterman's name was in Customs and Border Protection's database as someone who may be carrying child pornography into the country. A secondary inspection located two laptop computers and three digital cameras. The laptop contained many password protected files. After approximately six hours, Immigration and Customs Enforcement Agents took the laptops ...

This post is really just an elaborate link to this article on my law firm's web site. The article talks about what I call the magic space of time in which you can challenge Customs and Border Protection's exclusion of merchandise in the Court of International Trade. This gap is the time between the merchandise being "detained" and Customs actually seizing it. In the space, the merchandise is technically "excluded" and the exclusion is protestable. Go read the article . Note to self: a Bing search for images of "Customs Seizures" terns up lots of NSFW content. I am reminded that  Customs and Border Protection also has jurisdiction over obscene material entering the country.

Remember how excited I was about CBB Group Inc. v. United States ? That was the case about the exclusion of merchandise from the United States and reminding the world that exclusions, which are not seizures, are protestable events. Denied protests of exclusions end up in the Court of International Trade. In a recent case, PRP Trading Corp. v. United States , the Court revisited this topic, but with an unfortunate twist. The goods involved were aluminum extrusions allegedly from Malaysia. Customs and Border Protection detained that merchandise on the suspicion that it might have a different country of origin. While not discussed in the case, this likely relates to the fact that there is an antidumping duty order on aluminum extrusions from China. Once the importer provided the merchandise to Customs for examination, Customs had 30 days to decide what to do with the merchandise. For two of the entries, the 30 days elapsed without a decision, causing the goods to be legally "deem...