Saturday, July 09, 2005

CBP Strikes Back!

Wouldn't it be nice if buried deep in the fine print of your employment contract there was a clause that says when you disagree with the instructions from your supervisor, you can disregard them? Image that.

Now assume that your employment contract is the United States Constitution. Your supervisor is the federal court system. You are Customs.

Turns out that Customs has essentially that authority. It comes from 19 USC § 1625(d) and 19 CFR § 177.10(d). Those two provisions give Customs the authority to "limit the application of" the decisions of the Court of International Trade and the Court of Appeals for the Federal Circuit to the specific entries before the court in a specific case. In other words, when Customs loses a case or does not like the reasoning of a case, it can say: "Well, you win on that entry but we will not apply that decision anywhere else. Possibly not even to the next entry of the same stuff."

To its credit, Customs doesn't exercise this authority often, but it did so in the June 29, 2005 Customs Bulletin where it limited the application of Park B. Smith, Ltd. v. United States. That case involved the question of whether table linens and rugs decorated with holiday themes were classifiable as "festive articles." If so, they would be entitled to duty-free entry.

After it was clear that the Courts disagreed with CBP, Customs went to the WCO for an amendment to the Explanatory Notes to the Harmonized System to "clarify" not change the scope of the relevant provision to exclude the goods from the festive articles provisions. So, future festive articles cases will have a different Notes and, potentially a different result. Of course, that assumes that a change in the Notes is enough to change the outcome of the case when the fundamental language of the HS hasn't changed at all. Which, of course, is a questionable proposition.

Given the change in the Explanatory Notes, this is a reasonable application of CBP's magic get-out-of-jail-free card. But, it just seems wrong.


Anonymous said...

I wish they would just hurry up and put an end to this Festive Article BS already! Look it up, classify. Look it up again, classify again. Holy God, this is tedious!!! I have searched more websites for current up to date information on this issue than I care to state!

Larry F. said...


I can't really tell you much in this forum. Your facts will matter. Assuming you are not interested in this in a merely theoretical sense and you are not a lawyer at some other firm, feel free to send me an e-mail with contact info and we can talk about it.

Click my name above for my profile and e-mail address.