Published November 24, 2020 by

Live Event Reminder: LawCustoms Stream – Tonight at 5:30 p.m. EST. You Are Invited!

Dear Friends and Colleagues, we look forward to your visit of LawCustoms Stream, tonight at 5:30 p.m. EST.  LawCustoms Stream is a part of a series of live web events, or streams, to explore current issues related to customs and international trade. Each event focuses on current trade landscape starting from the hot topics in the world and home to issues that affect international trade community.  We pick laws and discuss how they apply.  We take logistical difficulties affecting global trade and break it down. The stream will take place through Vimeo Platform. No registration is necessary to attend, just follow the link below. We welcome your questions or comments through chat, but for that please login through web browser or download Vimeo App for iOS or Vimeo App for Android. If you can’t make it, no problem!  The video playback will be available right after live stream. Links used during the stream: U.S. v. All Funds on Deposit with R.J. O’Brien & Associates, 783 F.3d 607 (7th Cir. 2015) International Emergency Economic Powers Act (IEEPA) does not authorize the Executive Branch to take title to foreign assets, to regulate purely domestic transactions, to regulate gold or bullion, or to…

Read More Live Event Reminder: LawCustoms Stream – Tonight at 5:30 p.m. EST. You Are Invited!

Trade Agreements Training & Development U.S. Federal Agencies U.S. Federal Courts

IEEPA

Warsaw (Montreal’s Predecessor) Convention and Armed Robbery of JFK Forwarder (LawCustoms Stream Excerpt)
Published November 21, 2020 by

Warsaw (Montreal’s Predecessor) Convention and Armed Robbery of JFK Forwarder (LawCustoms Stream Excerpt)

Video segment from October 20, 2020 LawCustoms Stream focusing on the case, which expanded on provisions of Montreal Convention’s predecessor – Warsaw Convention – to freight forwarders, discussing policy argument that call for uniformity and anti-circumvention principles favoring placement of agents (forwarders) and carriers (airlines) under same legal text. Case Name: American Home Assur. Co. v. Jacky Maeder (Hong Kong) Ltd., 969 F. Supp. 184 (S.D.N.Y. 1997) Full October 20, 2020 LawCustoms Stream is available here. Please remember to join our weekly stream. Stream is held on Tuesdays at 5:30 p.m. EST (New York Time). Link and details are available at www.LawCustoms.com

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Montreal Convention

Montreal Convention Outer Reach Under Expeditors (LawCustoms Stream Excerpt)
Published November 18, 2020 by

Montreal Convention Outer Reach Under Expeditors (LawCustoms Stream Excerpt)

Video segment from October 20, 2020 LawCustoms Stream focusing on Expeditor‘s Case, which applied Montreal Convention. Case Name: Indem. Ins. Co. of N. Am. v. Expeditors Int’l of Washington, Inc., 382 F. Supp. 3d 302 (S.D.N.Y. 2019) Case Link: https://scholar.google.com/scholar_case?case=5165619428600184083&q=382+F.+Supp.+3d+302&hl=en&as_sdt=3,33 Full October 20, 2020 LawCustoms Stream is available here. Please remember to join our weekly stream. Stream is held on Tuesdays at 5:30 p.m. EST (New York Time). Link and details are available at www.LawCustoms.com

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Trade Agreements Training & Development U.S. Federal Courts

Montreal Convention

Published September 30, 2020 by

September 29, 2020 LawCustoms Stream: CBE Materials; Cuban Sanctions; Magnitsky List; False Claims Act; Country of Origin

A weekly live web event dedicated to issues related to international trade. Materials used throughout the stream include: OWIT Mexico Event | WOMAN EXPORTING MX – October 26-30, 2020 https://mbmapp.com/event/mujerexportamx Assoc. of Cert. Sanction Specialists | Listings, Delistings and Other Developments in the Russian Sphere – Oct. 1, 2020 https://sanctionsassociation.org/20201001upcoming/ Event – Rising Tensions – Increased Trade Controls on Wednesday, October 7 HKT https://email.steptoecommunications.com/120/8358/landing-pages/rsvp-blank.asp?sid=ea292c35-fe3a-42c2-ac19-ea8649c27ee1 Cuba: OFAC’s amendment of Cuban Asset Control Regulations: Qs 837 https://home.treasury.gov/policy-issues/financial-sanctions/faqs/topic/1541 12 Categories of General License: https://cu.usembassy.gov/u-s-citizen-services/local-resources-of-u-s-citizens/traveling-to-cuba/ New Rule for Professional Meetings: https://www.ecfr.gov/cgi-bin/text-idx?SID=cff7b100f3d7279989d2c087a32f83f6&mc=true&node=se31.3.515_1564&rgn=div8 Old Rule for Professional Meetings: https://www.govinfo.gov/content/pkg/CFR-2019-title31-vol3/pdf/CFR-2019-title31-vol3-sec515-564.pdf New Rule for Public Performances: https://www.ecfr.gov/cgi-bin/text-idx?SID=cff7b100f3d7279989d2c087a32f83f6&mc=true&node=se31.3.515_1567&rgn=div8 Old Rule for Public Performances: https://www.govinfo.gov/content/pkg/CFR-2019-title31-vol3/pdf/CFR-2019-title31-vol3-sec515-567.pdf HK Special Administrative Region on SDN – 09/25/2020 OFAC FAQ https://home.treasury.gov/policy-issues/financial-sanctions/faqs/840 Reminder of 08/31/2020 HKSAR Designations: https://home.treasury.gov/news/press-releases/sm1088 Follows Exxon Mobile Case: https://www.govinfo.gov/content/pkg/USCOURTS-txnd-3_17-cv-01930/pdf/USCOURTS-txnd-3_17-cv-01930-2.pdf Xinjiang Production and Construction Corps (XPCC) makes it to Magnitsky List on 09/25/2020 https://home.treasury.gov/policy-issues/financial-sanctions/faqs/835 Note on Magnitsky (https://en.wikipedia.org/wiki/Sergei_Magnitsky): Sergei Magnitsky Rule of Law Accountability Act of 2012 … see pg. 8: https://www.govinfo.gov/content/pkg/BILLS-112hr6156enr/pdf/BILLS-112hr6156enr.pdf New Website for Steel Mill Licenses https://www.federalregister.gov/documents/2020/09/11/2020-19753/steel-import-monitoring-and-analysis-system https://www.trade.gov/us-industry-licensing https://enforcement.trade.gov/steel/license/SMP_byHTS.pdf DOJ News Release on False Claims Act https://www.justice.gov/opa/pr/multinational-industrial-engineering-company-pay-22-million-settle-false-claims-act 09/16/2020 Customs Bulletin at 15: Cyper Power v. US https://www.cbp.gov/sites/default/files/assets/documents/2020-Sep/Vol_54_No_36_Complete_0.pdf   Please remember to attend our weekly live stream! Tuesdays at 5:30 p.m. EST…

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Country of Origin Customs and Border Protection Office of Foreign Assets Control U.S. Department of State

Published September 22, 2020 by

September 22, 2020 LawCustoms Stream Playback: Sec. 201, 232, 301 Tariffs; Sec. 301 Court of Int’l Trade Challenge

A weekly live web event dedicated to issues related to international trade. This week the conversation focused on so-called “Trump” tariffs: a.k.a. Sec. 201, 232, 301. In light of lively debate about Sec. 301 challenge in the Court of International Trade, we also focused on the details and legal rationale underlying the Sec. 301 litigation. Materials used throughout the stream include: Martin Behr’s Presentation: “Trump’s Tariffs: Sections 201, 232, and 301,” available at https://drive.google.com/file/d/17kgaG2an_EiUL4kZOduqinbUWWu1-2MD/view?usp=sharing U.S. Court of International Trade Plaintiff’s Complaint: HMTX Industries v. U.S., available at https://filehost.thompsonhine.com/uploads/USCIT_-_HMTX_Industries_LLC_et_al_v_United_States_-_Sept_2020_2ea7.pdf Jurisdictional Statute, 28 USC 1581(i)(1)(B): https://uscode.house.gov/view.xhtml?req=(title:28 section:1581 edition:prelim) OR (granuleid:USC-prelim-title28-section1581)&f=treesort&edition=prelim&num=0&jumpTo=true Statute of Limitations, 28 USC 2636(i) – 2 years from the date the cause of action first accrues: https://uscode.house.gov/view.xhtml?req=(title:28 section:2636 edition:prelim) “First Accrues” Date: 83 FR 47974 (09/21/2018) https://www.federalregister.gov/documents/2018/09/21/2018-20610/notice-of-modification-of-section-301-action-chinas-acts-policies-and-practices-related-to 19 USC 2411 (Sec. 301) https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title19-section2411&num=0&edition=prelim 19 USC 2414 (Sec. 303) https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title19-section2414&num=0&edition=prelim 19 USC 2417 (Sec. 307) https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title19-section2417&num=0&edition=prelim 4 Sec. 301 lists available at USTR website https://ustr.gov/issue-areas/enforcement/section-301-investigations/section-301-china/200-billion-trade-action 8/18/17 FR Notice of Investigation https://www.federalregister.gov/documents/2017/08/24/2017-17931/initiation-of-section-301-investigation-hearing-and-request-for-public-comments-chinas-acts-policies USTR Report (Final?) https://ustr.gov/sites/default/files/Section%20301%20FINAL.PDF USTR Response for List 3 https://ustr.gov/about-us/policy-offices/press-office/press-releases/2018/june/ustr-robert-lighthizer-statement-0 Reliance on Sec. 307 (at page 2) https://ustr.gov/sites/default/files/enforcement/301Investigations/2018-0026%20China%20FRN%207-10-2018_0.pdf USTR Statement Mentioned in the Complaint https://ustr.gov/about-us/policy-offices/press-office/press-releases/2018/june/ustr-robert-lighthizer-statement-0   Please remember to attend our weekly live stream! Tuesdays at 5:30 p.m. EST At…

Read More September 22, 2020 LawCustoms Stream Playback: Sec. 201, 232, 301 Tariffs; Sec. 301 Court of Int’l Trade Challenge

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Published October 24, 2017 by

Customs Law Update on Piercing of Corporate Veil

One of the primary and completely legitimate purposes of incorporating is to limit or eliminate the personal liability of corporate principals and employees.  Under New York state law, corporate veil piercing principles or legal entity disregarding principles involve several factor analysis.  Piercing the corporate veil requires a showing that: (1) the owners exercised complete domination of the corporation in respect to the transaction attacked; and (2) that such domination was used to commit a fraud or wrong against the plaintiff which resulted in plaintiff’s injury.  Morris v. New York State Dep’t of Taxation & Fin., 82 N.Y.2d 135, 141, 623 N.E.2d 1157, 1160–61 (1993).  So fraud automatically pierces corporate veil, it is given.  What about negligence?  Well,  the negligence must equate to abuse of the privilege of doing business in the corporate form to perpetrate a wrong or injustice against that party.  Id.  In one case, New York’s Appellate court declined to pierce corporate veil in a negligence claim finding no “fraud or wrong.”  Mistrulli v. McFinnigan, Inc., 39 A.D.3d 606, 607, 834 N.Y.S.2d 271, 272 (2d Dept. 2007).  This means that negligence, would not automatically serve as an entitlement to corporate veil piercing in New York state courts. Same…

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U.S. Federal Courts

Court of International Trade Customs and Border Protection Harmonized Tariff Schedule Classification

Published November 13, 2016 by

Zojirushi Court Critiques CBP’s Protest Form

Court of International Trade (CIT) decision in Zojirushi v. U.S. (CIT 2016) is a great jurisdictional monologue explaining how and when 28 U.S.C. § 1581 can be invoked when challenging Customs and Border Protection (CBP) protest.  In Zojirushi, CBP did not approve nor deny protestant’s GSP claim, but instead checked the box on CBP Form 19 “rejected as non-protestable.” Protestant brought action against CBP in CIT under 28 U.S.C. § 1581(i), which is a residual jurisdictional subdivision.  CIT declined jurisdiction under 28 U.S.C. § 1581(i), saying that for this type of action, jurisdiction pursuant to 28 U.S.C. § 1581(a) should be invoked, which explicitly provides for protests.  (The Court of International Trade shall have exclusive jurisdiction of any civil action commenced to contest the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930)  However, the problem here was that CBP had neither denied nor approved the protest, but rather “rejected” the document.  According to CIT, this problem is easily corrected through “accelerated disposition” clause under 19 U.S.C. § 1515(b).  In other words, before showing up to court, protestant should request accelerated disposition. Then wait thirty (30) for “deemed” denial.  And only then,…

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Court of International Trade Customs and Border Protection

Published October 2, 2016 by

HTSUS 4202 Interpretative Methodology under Otter Products

On August 24, 2016, in Otter Products v. US,  Court of Appeals for the Federal Circuit (CAFC) agreed with the Court of International Trade (CIT) decision that protective cases for smartphones that are specifically designed to fit these smartphones are not classifiable under HTSUS heading 4202.  For Otter Products, LLC this decision lowered duty from 20% to 5.3%, allowing them to use HTSUS 3926.90.99 (other articles of plastic provision).  Perhaps more interesting, if not important, outcome of the opinion is the analysis and well-reasoned attack on the part of both plaintiff and defendant. HTSUS 4202 heading provides for: Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, insulated food or beverage bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper: Since smartphone cases are not specifically provided under heading notes,…

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Product Regulation U.S. Federal Agencies U.S. Federal Courts

Court of Appeals for the Federal Circuit Court of International Trade Customs and Border Protection Harmonized Tariff Schedule Classification HTS Heading 4202

Published February 4, 2016 by

Lumber Liquidators Inc. Criminal Import Venture

In October 2015, Department of Justice published conviction and penalty information of Lumber Liquidators Inc.’ criminal activities (also available here). The fine is $13,150,000. According to February 2, 2016 Google Finance report, (holding) company’s market cap is about $354,470,000. This means that Lumber Liquidators Inc.’s criminal activities cost company 3.7 percent of its market cap (attorneys’ fees not included). According to DOJ, it is “the largest financial penalty ever under the Lacey Act.” Now that the Lacey Act criminal precedent is set to cost 3.7% of the corporate market cap, it is a good reason to revisit Lacey Act itself, especially since its has been over four years since LawCustoms published on the topic. In a nutshell, Lacey Act makes it unlawful to import, export, sell, acquire, or purchase fish, wildlife or plants that are taken, possessed, transported, or sold: 1) in violation of U.S. or Indian law, or 2) in interstate or foreign commerce involving any fish, wildlife, or plants taken possessed or sold in violation of State or foreign law. Lumber Liquidators Inc. pleaded guilty to violation of 18 U.S.C. § 542 (entry of goods by means of false statements). Lacey Act requires importer of to submit a…

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Product Regulation U.S. Federal Agencies U.S. Federal Courts

Animal and Plant Inspection Service Department of Justice Home & Garden Products Lacey Act

Published May 27, 2015 by

D.C. District Court’s “Tips” to Federal Agents for Conducting Border Searches of IT Equipment

Author commented on CBP’s position for digital equipment border searches back in 2008.  Since then, CBP came out with amended version for digital equipment search conduct in the CBP Directive 3340-049.  The directive states that searches, including those of electronic derives, can be made “without individualized suspicion.”  Id. at ¶¶ 5.1.3, 5.1.4.  DHS Special Agent Kevin Hamako, who may or may not have read the CBP directive, also had “an understanding that no suspicion was required to conduct a border search of any items * * * including electronic devices.”  U.S. v. Kim, 7 (D.C. 2015).  But, the D.C. district court decided that Agent Hamako misunderstood the “no suspicion” doctrine in the context of digital equipment border searches. DHS agent was following up a lead that allegedly implicated one businessman’s involvement with exports of controlled items without securing valid licenses around 2008-2009.  In 2012, DHS agent intercepted the businessman at the airport and seized his computer, allowing the businessman to exit the United States.  The seized computer was sent to the another DHS facility, where the contents of the hard drive were copied and examined.  The computer was eventually returned to the businessman, but based on the examined content, DHS…

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Customs and Border Protection D.C. District Court