Wednesday, September 30, 2009

On the Apostrophe

UPDATED BELOW:

Garner's The Elements of Legal Style, Rule 2.6 (Oxford, 1991)(emphasis in original) states the following:

2.6 Form Singular Possessives by Adding 's to the Singular Form of the Noun

The rules holds true regardless of how the word ends: thus, witness's, Jones's, Congress's, and testatrix's. There are three exceptions to the rule. First, the word its is possessive, it's being the contraction for it is. Second, your and hers, which are absolute possessives, take no apostrophe. Third, biblical and classical names that end with a -zes, or -eez sound take only the apostrophe. Thus,

Jesus' Moses' Aristophanes' Socrates'

If the possessive form seems awkward to you, rephrase: the laws of Moses instead of Moses' laws, the action of Congress or the congressional action instead of Congress's action.

Given the treatment of Customs as a singular entity, I take it from Garner (my go-to grammar guy) that the CAFC was correct as a matter of formal grammar. Customs's will be my preferred usage henceforth and I am a little embarrassed that I had floated toward treating Customs as a plural noun, which would justify my use of the naked apostrophe. But, that still leaves open the question of Customs's own institutional preference and whether there is any reason for it.

Update:

I am shocked at the amount of controversy this has generated. I have actually written on some contentious issues, but have never generated this many comments. I am very worried about you all.

That said, I found a different answer via Grammar Girl's Quick and Dirty Tips. Unlike Garner, GG (AKA Mignon Fogarty) says there is no hard and fast rule on this and that style guides differ in their advice. She also points this article deconstructing a Supreme Court opinion reviewing a Kansas statute in which there were multiple opinions and differing views on the use of the 's. According to the author, Jonathan M. Starble:

The surprisingly popular practice of omitting the final "s" in all s-ending words is both technically improper and completely illogical. Indeed, the use of an additional "s" accurately reflects proper pronunciation. Whereas an 's produces a clear sound, a mere apostrophe produces no sound at all. Accordingly, if one were to pronounce the sentence, "Kansas' statute is constitutional," it would sound exactly the same as the sentence, "Kansas statute is constitutional." That wouldn't make any sense. Furthermore, it is hard to imagine that law clerks for Justice Thomas go around saying to people, "Hello, I'm Justice Thomas clerk." (Of course, the same analysis applies to people like Jesus and Moses, but they are apparently entitled to some type of "grandfather" exception.)

Given the diversity of opinion, I am feeling empowered to return to my prior practice of dropping the trailing s. I will, though, continue to use a lower case letter c when using customs as an adjective rather than as a proper noun. Thus "customs classification" refers to the practice of classifying merchandise under the tariff schedule. On the other hand, "Customs' classification" refers to the classification Customs assigned to the merchandise.

Anyone want to argue about that?

Tuesday, September 29, 2009

Kahrs III: What Have I Done Wrong?

Here I sit, painfully aware of my promise to my loyal readers to digest and summarize this Court of International Trade decision in a way that is both accurate and entertaining (well, entertaining to customs lawyers). The opinion is a dry 88 pages long. My task is daunting. I feel like I am standing at the base of some reasonably tall mountain with too little food and without an experienced Sherpa. I wonder whether there is any meaningful principle of customs law to be taken from this case. In other words, why am I bothering?

[Pause for much time spent staring into space waiting for some sort of sign from heaven telling me what to do. None arrives, I continue reading.]

Kahrs imports wood flooring which it classified in 4418 as builders' joinery. Customs and Border Protection classified the merchandise in 4412 as plywood. Kahrs filed suit and asserted as its causes of action:
  • Improper revocation of prior rulings via a CF-29
  • Acts in opposition to an established and uniform practice
  • Proposed alternative classifications
  • A commercial designation claim
  • A claim for declaratory relief
Before the Court could get to the merits of these claims, it had to deal with the government's motion to dismiss the declaratory judgment claim for lack of jurisdiction and for failing to state a claim. The court also had to deal with a motion to strike certain allegations. On top of that, each side filed multiple motions for summary judgment on the individual claims. Poor Judge Carman explicitly complained about this in footnote 6.

The declaratory judgment action was brought under the Court's residual jurisdiction (28 USC 1581(i)) in an effort by the plaintiff to have the Court pass on the classification and exercise of reasonable care by Kahrs. This would provide a defense in any subsequent penalty case brought by the United States. The Court dismissed this claim on the grounds that the only entries properly before the Court were those covered by the denied protests and the summonses. Rather, the proper venue for raising those issues is as a defense in a penalty action. Thus, the Court dismissed that claim in its entirety.

Next, the government moved to strike some statements from Kahrs' complaint. The motion to strike was untimely and, therefore, the Court denied it.

That takes us to summary judgment, which goes to the merits. There were several motions and cross-motions for summary judgment addressing various claims brought by Kahrs. Happily, the Court first addressed the proper classification of the merchandise.

Customs treated the merchandise as plywood (4412) while Kahrs wanted it classified at assembled parquet panels (4418). Kahrs also provided as alternatives other edge-glued lumber and builders' joiner (both in 4418).

Heading 4412 covers "[p]lywood, veneered panels and similar laminated wood." Plywood is a structural material comprised of sheets of wood glued together with the grain of adjacent panels at right angles. Plywood is made up of veneer panels, which are thin sheets of wood. Finally, laminating is uniting layers of material by adhesive. The Explanatory Notes state that 4412 covers plywood used as flooring panels sometimes referred to as "parquet." Looking at samples and industry standards, the Court found that Kahrs' products are classifiable in 4412.29.

Turning to 4418, the Court had to determine whether the merchandise was also described as "parquet panels." Parquet is joinery consisting of an inlay of geometric or other patterns usually of different colors. Celtics fans know parquet when they see it. The Court held that the primary feature of parquet is that it involves a geometric pattern or mosaic. Kahrs' flooring, on the other hand, simulated solid wood planking. In the absence of a geometric pattern, the product is not classifiable in 4418.30. The fact that the flooring produces a striped pattern or a pattern simulating natural wood did not help.

Next, the Court addressed whether the merchandise can be classified as edge-glued lumber in 4418.90.20. The Court concluded that this term encompasses only single-layer products cut by the mill and glued only on the edges. Thus, the merchandise was excluded. On the last alternative classification as other builders' joinery of 4418.90.45, the Court quickly rejected the argument based on the CIT decision in Faus. But, since the goods in that case were fiberboard, not wood, the Court's ultimately reversed Faus analysis, was inapplicable.

The next set of issues relate to whether Customs improperly revoked certain rulings and decisions. Since I have a job and actual work to do, let's leave that for Kahrs IV: The Phantom Revocation.

Saturday, September 26, 2009

And Now, A Word from the CAFC

Before I get to Kahrs III: The Search for Refunds, I want to take a look at Faus Group, Inc. v. U.S., which the Federal Circuit issued yesterday. There are a number of reasons for that. First, Faus is short. Second, it's brevity seems to raise something of an issue. Third, it relates to some of the same legal questions. Fourth, it raises a truly important grammar question.

Faus involved the classification of laminated flooring panels as either fiberboard under heading 4411 or as "builders' joinery" under 4418. The Court of International Trade had upheld Customs and Border Protection's classification in 4411.

The merchandise is pre-cut, tongue-and-grooved flooring consisting of a fiberboard coated with a photographic image to simulate natural wood. The pieces are not structural and are designed to be installed on a secure subfloor. Within heading 4418, Faus asserted that the proper classification was in 4418.30.00 as parquet panels or in 4418.90.40 as other.

The Federal Circuit's analysis is refreshingly concise. The Court's first step was to define builders joinery as pieces of wood or fiberboard that are already joined or capable of being joined that function as non-structural finishing for the interior of buildings. According to the Court, that puts this merchandise prima facie in 4418.

The government argued that Note 4 to Chapter 44 narrowed the scope of 4418 by permitting 4411 to include articles that have been worked along an edge as long as the work does not give the article the essential character of merchandise described by another heading. The Court rejected this for the simple reason that Note 4 says nothing about the scope of 4418. In other words, applying the Note to limit the scope of 4418 requires a leap from the text in what I can best describe as an attempt to determine the subjective intent of the drafters (Note: that is me speaking, the CAFC did not say that). This is not a constitutional case requiring that kind of thinking (and it is debatable whether that kind of reasoning is necessary in a constitutional case).

Turning to 4411, the Court was faced with two interpretations of Note 4. Here, we need to quote the whole note:

Products of heading 4410, 4411 or 4412 may be worked to form the shapes provided for in respect of the articles of heading 4409, curved, corrugated, perforated, cut or formed to shapes other than square or rectangular or submitted to any other operation provided it does not give them the character of articles of other headings.
The issue is whether the final proviso applies to all of the listed operations (e.g., curved, corrugated, perforated, etc.) or only to "any other operation." The CIT held it applied only to other unlisted operations. Apparently, the premise here is that the tongue-and-groove gives the goods the shape of wood of 4409 but since it is not wood, it has "the character of articles" of 4418. Therefore, Note 4 prohibits classification in 4411. The government argued since the proviso only applies to "other operations," this fact is irrelevant.

The Court, to its credit, did not resolve this question. Rather, it said (effectively), "so what?" If we assume the the CIT was wrong, then the merchandise is excluded from 4411. If, on the other hand, we assume the CIT was correct, then what happens?

What happens is that the Court has to decide between 4411 and 4418 based on the General Rules of Interpretation. The way to do that is to apply GRI 3(a) and classify the merchandise in the heading that most specifically describes it.

There are a couple tests for specificity. The Court first considered which of the two heading is more difficult to satisfy. Builders' joinery, according to the Court, must be processed so that the pieces can be joined. Heading 4411, on the other hand, covers (among other things) raw fiberboard. The second test for specificity to to ask which of the two headings covers fewer items. Because builders' joinery covers only products used as non-structural elements, it has a more limited scope of use than does 4411 and covers a larger variety of products. Thus, under GRI 3(a), 4418 is the more specific and, therefore, applicable heading.

Having reached that conclusion, it becomes unnecessary to resolve the meaning of Note 4. Either Note 4 excludes the merchandise or 4418 is more specific. Either way, the CIT got to the wrong result. That leaves the correct classification as 4418.90.40.

That took the Federal Circuit 11 pages. In the course of its opinion, the Federal Circuit made the following interesting observation:

In a fifty-three page analysis, an analysis that can only be described as Talmudic in its breadth and thoroughness, the trial court parsed the verbiage contained in the competing headings, explored dictionary definitions, and sorted through a wealth of prior cases on the construction of HTSUS headings.

Why is this in the opinion? It strikes me as somewhat ambiguous. It might be intended to give credit to the trial court for its thoroughness and detail. On the other hand, it might be interpreted as an expression of frustration at having to parse through Talmudic reasoning to get to a relative specificity decision.

Is 53 pages too much for a relatively simple classification decision? How much is enough is a very tough call. Clearly, the Court wants the parties to know that all of the arguments and evidence were given full consideration. The CIT also needs to convey to the Federal Circuit that the case was decided carefully. When I was a clerk (admittedly a long time ago), my Judge had two rules. First, nothing gets into his opinion that is unnecessary to the outcome (i.e., no dicta). Second, nothing goes in that did not come from one side or the other. The latter is based on the usually correct premise that really good lawyers who fully understand their case have written the briefs. These rules make eminent sense to me. Among other things, they result in concise opinions.

I am in no way criticizing the CIT's opinion. I have no facts on which to do that. I have no idea how the briefs looked in this case. Certainly there was a lot of focus on the meaning of Note 4. It must have been presented as an important issue. Still, I subjectively feel like there is a general trend toward longer CIT opinions. Is the CAFC feeling that too? Can someone confirm whether there is such a trend? If so, how would that inform the advocacy at both courts?

I'm not sure of the answers to these questions; it is a MonsterQuest.

Last thing: page 2 of Faus contains the following sentence: "Faus protested Customs's classification." Here is the grammar question: is that the proper possessive form? I would generally go with Customs'. Literature from the agency says no apostrophe ever. I blogged about this in one of my very first posts. I might have to revisit this with a little statistical analysis. For now, I am hopeful Grammar Girl will accept this as a challenge.

Wednesday, September 23, 2009

Kahrs II: Revenge of the Import Specialst

Returning now to the saga of Kahrs International, we have some more evidence questions to resolve. Before that, and with all due respect to the guy who complained about my Audi post, I say, "Hey Kahrs, nice floors you have there." I notice only because my kitchen floor is a wreck.

In this second published opinion, the government moved for summary judgment, in part, on the basis of two declarations from Customs personnel. Kahrs moved to strike portions of those statements. Motions like this are decided on the basis of the judge's sound exercise of discretion and can only be reversed if the judge abused that discretion. In other words, the judge has pretty wide latitude here.

The motion to strike comes down to an ages-old question in customs litigation: Are Customs Import Specialists "experts" for purposes of giving testimony in court. A run of the mill witness is generally only allowed to testify as to facts. "The light was green." "It was 8:00 PM." Expert witnesses, on the other hand, can review information and, drawing upon their technical knowledge, offer opinions based on the facts. "From those skid marks, in my opinion he was traveling 80 MPH." Because of this leeway, a party seeking to use an expert has to provide the other side with background information establishing the witness' credentials and also the facts upon which the opinions are based. The latter is usually done through an expert's report.

In Kahrs, the witnesses from Customs gave what the plaintiff considered to be opinion testimony but were not identified as experts and were not treated as such. Kahrs, therefore, moved to strike some of the statements. But, the government noted that Federal Rule of Evidence 701 permits non-expert opinion testimony in certain limited cases, including when based upon personal knowledge and experience, "often on the job."). This is the difference between personal knowledge and technical knowledge. So a machine shop operator can give an opinion as to how something might have been made based on her personal experience while a professor of engineering can give the same opinion based on years of academic work even if he never set foot on a shop floor.

Turning to the two witnesses, the Court found that each had significant personal experience dealing with wood products and the wood-products industry. They have also read the relevant materials from Customs and the trade. Thus, they had acquired knowledge through personal experience and were, therefore, permitted to offer lay opinions within the area of their personal knowledge.

This does not really resolve the question of whether an Import Specialist is an expert. It does, however, appear to create the path by which they will be permitted to give opinion testimony.

The Court then turned to numerous objections plaintiff raised with respect to the government's proposed findings of fact. These are numbered paragraphs of individual facts presented to the Court with a reference to backup evidence. Courts can construct their decisions based on uncontested or proven facts submitted in this way. Each of the plaintiff's objections was overruled or the Court stated it would not consider some objectionable information.

Coming soon Kahrs III: On the Merits


New Commissioner Nominated

President Obama has finally nominated Alan Bersin to serve at Commissioner of Customs and Border Protection. Here is his official bio:

Alan Bersin was appointed by Homeland Security Secretary Napolitano in April, 2009 as Assistant Secretary for International Affairs and Special Representative for Border Affairs in the Department of Homeland Security (DHS). In that capacity, he serves as the Secretary's lead representative on Border Affairs and Mexico, for developing DHS strategy regarding security, immigration, narcotics, and trade matters affecting Mexico and for coordinating the Secretary's security initiatives on the nation's borders. Prior to his current service, Bersin served as Chairman of the San Diego County Regional Airport Authority. Previously, Mr. Bersin served as California’s Secretary of Education between July 2005 and December 2006 in the Administration of Governor Arnold Schwarzenegger. Between 1998 and 2005, he served as Superintendent of Public Education in San Diego and from 2000 to 2003 served as a member and then Chairman of the California Commission on Teacher Credentialing. Prior to becoming the leader of the nation’s eighth largest urban school district, he was appointed by President Bill Clinton as the United States Attorney for the Southern District of California and confirmed in that capacity by the U.S. Senate. Mr. Bersin served as U.S. Attorney for nearly five years and as the Attorney General’s Southwest Border Representative responsible for coordinating federal law enforcement on the border from South Texas to Southern California. Mr. Bersin previously was a senior partner in the Los Angeles law firm of Munger, Tolles & Olson. Mr. Bersin received his A.B. in Government from Harvard University (magna cum laude) and attended Balliol College at Oxford University as a Rhodes Scholar. In 1974, he received his J.D. degree from the Yale Law School.

Let's deconstruct that a bit. He's a smart guy: Harvard, Rhodes Scholar, Yale Law. Has a law enforcement background: U.S. Attorney and AG's guy in the southwest. But a public service guy: Education jobs in California. Now at DHS on border affairs. So it seems he has a solid background in law enforcement but also in the management of an agency with completely different objectives (i.e., education). The education job was probably as much about managing a multi-headed beast with too few resources as it was about actual education policy.

So, with that in mind, I am cautiously optimistic.

Tuesday, September 22, 2009

Deem It All!

This post is really background to the next couple posts.

The Court of International Trade is not known for disputes over discovery or the admissibility of evidence. But, if you want to see a customs case involving hard-fought battles over evidence, look no further than Kahrs International v. U.S. The first opinion in this matter involved a highly unusual motion by the United States to have the Court withdraw deemed admissions. This week, two more opinions came out. Let's deal with them in order.

The underlying dispute has to do with the treatment of wood veneer flooring strips. The defendant failed to timely respond to several requests to admit from the plaintiff. A request to admit is a discovery tool through which one side simply asks the other to admit some fact as a means of taking it off the table as an issue. If the other side does not respond, the fact is deemed to have been admitted.

The Court, however, has discretion to relieve the party of it's deemed admissions where it will not serve the goal of getting to the merits of the case and the withdrawal of the admission will not prejudice the other parties ability to bring or defend its case. In other words, if the Court feels it can get to the merits without substantial prejudice to the other party, it can un-deem the admissions. Importantly, the focus is not on what caused the late response or no response. This is not about the quality of excuses, it is about getting to the right result fairly.

The Court noted that leaving the deemed admissions deemed would lead to a victory for the plaintiff on at least some counts. Further, the Court noted that the defendant's answer to the complaint effectively denied these same allegations. Accordingly, the deemed admissions did not serve the goal of a decision on the merits. Thus, the Court found the first prong to have been satisfied.

To satisfy the second prong, the plaintiff would need to show prejudice. In this situation, prejudice is not simply having to prove the otherwise admitted fact. It relates to the inability to prove that fact otherwise. On this point, the Court found that the delay in answering the requests was not substantial and that the plaintiff has the opportunity to depose witnesses necessary to prove the otherwise deemed admitted fact. Thus, it was unable to show prejudice.

As a result, the Court ordered that the deemed admissions be deemed withdrawn, which is a lot of deeming.

The second opinion in this case, resolves Kahrs' motion to file a reply brief and to exclude certain evidence. That will be the next post.

Saturday, September 19, 2009

Dear Audi, Why?

As a far too occasional bike commuter, I feel I should be offended by this ad for the Audi diesel. Audi seems intent on lumping bike commuters, strap hangers, and Segway owners into a larger category of nerds and losers. Of course, only the kick-scooter commuters belong there.

Oddly, I'm not offended. Instead, I'm thinking the S5 is pretty hot looking. Damn you Audi!





Wednesday, September 16, 2009

FCPA Goes Hollywood

Here is a little something for those of you out there trying to convince management that compliance is worthwhile. Some folks in Hollywood were apparently not paying attention to the Foreign Corrupt Practices Act. It seems they decided that the best way to get the contract to run the Bangkok Film Festival was to bride the relevant governmental official to the tune of $1.8 million.

Under the FCPA, with very limited exceptions, it is illegal for a U.S. person to make a corrupt bribe a foreign governmental official to secure or retain business. There are very limited exceptions for what are often called "grease payments." A grease payment is made to expedite a ministerial task that is certainly going to happen. The difference has to do with whether the bribe is to get someone to exercise discretion in your favor as opposed to just do their job. Still, if your theory is that you are making grease payments so it is all good, you are treading on some very thin legal ice.

The second part of FCPA has to do with recordkeeping in the U.S. There is a lot to this part but it is tougher to explain. The bottom line is that your books and records better properly report your corrupt and non-corrupt bribes. If the SEC or DOJ finds your books are hiding payments, that is a separate violation. It is kind of like getting a drug dealer on tax evasion.

The other thing people don't realize about the FCPA is that the penalty can be disgorgement of the proceeds. So, if your sale team gave the Minister of Aviation of Whocaresastan a bottle of scotch while showing off your cool new ATC system, and failed to properly record the gift, your company might have to give back the $1 billions it earned on the airport construction contract.

That can hurt. Oh, and people can also go to jail.

So, FCPA compliance should not be under the radar. Get some training for your management and sales staff. It will save you a lot of grief later.

Monday, September 14, 2009

Residue and Tires

On the regulatory front, Customs and Border Protection is delaying enforcement of the rule requiring the entry of previously considered empty containers if there is residue in the container. For now, they can be treated as empty. The implementation of this change is delayed until further notice.

After this comes into force, the residual goods will have to be entered. Quantities may be estimated, but if a more accurate quantity is later determined, the entry should be updated.

In case you spent the past 48 hours under a rock or in a cave, President Obama has decided to levy new duties on tires for passenger cars and light trucks from China. This is a Section 421 case based upon the theory that there has been a surge in imports and the U.S. industry needs some breathing room to adjust. The duties will begin at 35%, go to 30% in the second year, and then to 25%. This is the first time an industry has successfully sought relief from the Obama administration. Here is the USTR press release. This takes effect 15 days from September 11, 2009 (which is September 26).

Wednesday, September 09, 2009

Classification Case

UPDATED TO FIX THE LINK:

Generally, I worry about any court opinion that requires its own table of contents, but in my effort to fill the gaps in my recent blogging, I will jump into ENI Technologies v. United States.

The merchandise involved is RF generators that take AC electricity, convert it to DC and then produce electrical current at specific frequencies and power. The frequencies are high enough to be in the range of radio energy, but the output is just electrical current at a certain wattage. In this case, the wattage is in the order of thousands of watts. The output is used to create plasma useful in the production of semiconductors, to which it is integral. Although there are other applications, semiconductor production appears to be the primary use.

Customs classified the merchandise as static converters. The importer had a number of alternative classifications starting with parts of plasma processing systems. This required an analysis of Section XVI, Note 2, which controls the classification of parts of goods in Chapters 84 and 85. Under the note, goods classifiable in Heading 8466 remain there even if used used solely or principally with a particular kind of machine. Tariff item 8466.93.85 covers parts of machines for plasma etching. That means that if the RF generators are parts for plasma etching systems, they are classifiable in Heading 8466.

The Court then engaged in a thorough analysis of the meaning of the term "part" and concluded that parts act on and affect the operation of the article of which they are a part. In other words, parts must have a direct relationship to the primary article. Based on this, the Court found that the RF generators are parts of plasma etching systems. However, any RF generators that have other principal uses are not classifiable in 8466 and may be classified with the machines with which they are solely or principally used.

Still with me?

The Government's position was that the RF generators are static converters of Heading 8504. Although the Explanatory Notes define static converters, in part, as an apparatus used to convert electrical energy in order to adapt it to further use, the Court declined the Government's invitation to rely on this broad definition. Rather, the Court looked to other examples of static converters and found that found that the term does not encompass apparatus that convert AC to DC and then back to AC at higher frequencies.

The remaining possibilities were for machines for processing semiconductor materials and electrical machines having individual functions not specified elsewhere. The Court applied the Carborundum factors plus its finding that the principal use of the RF generators is to process semiconductor material in 8479.89.84 if they are used in a process other than plasma etching of 8466.93.85.

Thus, the Court denied the Government's motion for summary judgment and granted the importer's motion to the extent the principal use of the merchandise is known. The Court then ordered the parties to work out the details.

And that, my friends, is a short summary of a 49 page opinion. I'm sure those familiar with the case will say I missed the important points, but you take what you can get for free. Right?

And with that, I say, "Good night from Minnesota."

Tuesday, September 08, 2009

Starting to Catch Up

I have not been able to devote much time to detailed analysis lately. I hope those of you able to access it have been keeping up with developments via www.twitter.com/customslawblog.

For what it's worth, I'll start the process of catching up here.

On September 2, the President published a notice of changes to the NAFTA Rules of Origin and to the U.S. Israel FTA. That proclamation is here.

The Lacey Act, you will recall, requires importers of wood and plant materials to make a declaration stating the genus and species of the plant material and that it was harvested and exported legally. There are certain exceptions including for common cultivars.

APHIS has amended its schedule for the implementation of the Lacey Act. Under the change, the merchandise covered by Phase III (due to commend October 1, 2009) has been reduced. Phase IV (April 1, 2010) has been substantially revised. An important change is that recycled and reused materials (for example, particleboard and fiber board) is subject to a further enforcement delay of no earlier than September 1, 2010.

APHIS also addressed some concerns that complying with the reporting requirements will result in useless information being provided to the Government and excessive work being done by the importer. This is particularly true for products that may contain a variety of plant materials. For example, SPF is a common type of lumber made from spruce, pine, or fir. In cases where the species is unknown, the law requires a list of all species that may be present in the product. In those circumstances, APHIS appears willing to accept the genus name and the abbreviation "spp." Keep in mind that this can only be done when it is true that any or all species of the genus might be present. APHIS also continues to explore blanket certificates and is running a pilot program to test its feasibility.


I covered this case previously. It involves the classification of almond brittle from China. In a motion for reconsideration, the plaintiff asked the Court of International Trade to consider determining that the product is classifiable in a different, not previously considered, tariff provision.

The motion for reconsideration is an interesting process because it is almost never successful. Reconsideration is appropriate in very limited circumstances including:
  • An error or irregularity;
  • Serious evidentiary flaw;
  • New evidence which even a diligent party could not have discovered in time; or
  • An accident, unpredictable surprise, or unavoidable mistake which impaired a party's ability to adequately present its case
In the absence of one of those factors, the Court denied the request for rehearing and reaffirmed the classification in HTSUS item 2008.19.40.

OK, I know there is not much meat there. I've got other cases to read an blog. I'll do that soon.

Friday, September 04, 2009

I Have A Blog?

Dear Readers:

Yes, it's true, I have a blog and the self-imposed responsibility to keeping my readers informed of important developments relating to customs and international trade law and to pass on various amusing anecdotes. The problem is that I also have a job. At the moment, I have two jobs because classes have started and I am teaching trade remedies at JMLS again. That takes some time away from blogging.

All of that is by way of excuse and to let you know that I have a stack of cases to review and to post. I'll try and do them shortly.

In the mean time, I sincerely hope you all have an enjoyable long weekend. If you are not in America (where Monday is Labor Day), go ahead and take Monday off anyway. It's the end of summer and we can all use a free day.

If you are in Australia or another southern hemisphere spot, I know it is not the end of summer. You people are just stuck. Go to work on Monday.

Larry