Customs Law

LeMans Corp. v. United States At what point does specialized clothing become sports equipment? I thought this question was decided in a Federal Circuit case involving Bauer-Nike ice hockey pants back in 2004. Apparently, I was wrong about that. This case involves clothing designed exclusively for use while engaged in "power riding sports." The clothing included protective padding, was made of moisture wicking fabric, and designed to fit comfortably while roaring around a dirt track at high speeds. Customs classified the merchandise in Chapters 61 and 62 depending on the specific article involved. The importer sought classification in Chapter 95 as sports equipment. The Court initially found that the motocross garments (sweaters, jackets, ) are all classifiable in Chapters 61 and 62 based upon General Rule of Interpretation 1 to the HTSUS . That analysis seems clear enough. The interesting question is whether the merchandise is also classifiable in Chapter 95. LeMans ' ...

I know things have really slowed down here when my family complains that I am not posting often enough. I have not done a completely off-topic post in a while. And, the on-topic world has been personally fairly busy of late while at the same time not particularly full of interesting developments. So, here are a couple updates culled from the recent news. None involve animal smuggling. The Justice Department has announced a new task force on intellectual property enforcement. In many ways, I think this is great. Intellectual property really is the engine that drives vast swaths of our economy. But, I admit to feeling a little queasy every time I hear about increased IPR enforcement involving imports. The reason is that I know that many well-intentioned small business people inadvertently get caught up buying counterfeit merchandise and end up losing money and merchandise as a result. I am not making excuses for them, I just wonder whether they have a voice with the government. More wor...

I'm going to do this quickly to get it off my chest. In United States v. UPS Customhouse Brokerage , the United States sought to impose monetary penalties on UPS for failing to exercise the required level of supervision with respect to its brokering activities. For more background, look here and here . Note that I am disclaiming my prior standard of review analysis. This is a de novo case. There is no review. The standard of review was not really a question in the first place. Procedurally, the case is complicated. It has been before the Court of International Trade on motions for summary judgment by both parties and there was an unsuccessful effort to get the main legal question before the Court of Appeals for the Federal Circuit in an interlocutory appeal. There was a trial on the merits, which the United States won. That judgment was appealed and the Federal Circuit vacated the judgment in part and remanded to the CIT for further proceedings. The basis for the Federal Circ...

The Court of Appeals for the Federal Circuit has affirmed the decision of the Court of International dismissing Totes-Isotoner Corp. v. United States . As in the decision from the CIT, this case turns more on technical issues concerning the pleading of the case than it does on the merits. Thus, it is unclear whether this is the last word on whether tariff items that differentiate among products based on the gender or age of their intended users are unconstitutional. On its face, this seems like an easy question. If there were a sales tax of 14% assessed on gloves purchased by men and 12.6% of gloves purchased by women, it seems unlikely that the tax would last long before being declared unconstitutional as a violation of equal protection. But, a customs duty of 14% on men's gloves versus 12.6% on women's gloves is harder to analyze. There were lots of issues before the Federal Circuit. We'll discuss each: Jurisdiction The government took the position that the right way for...

By that title, I mean this is an update about the blog. My routine in the morning is to check the Federal Register for agency updates and the Court of International Trade and Court of Appeals for the Federal Circuit pages for new cases. I also have Google alerts for relevant topics. I tweet the little things that strike me as interesting or amusing. And, I feel like it has been quiet lately. Not much has seemed blog-worthy. I do have the UPS decision from the Court of International Trade sitting on my desk. I'll blog that sooner or later. The bottom line, though, is simple. In broker penalty cases, Customs is supposed to consider a list of 10 elements when setting penalties. If it fails to consider all 10, it did not do its job and any penalty assessed is invalid. On the more general front, I've got some speaking events coming up. I'll be at the Georgetown International Trade Update February 25-26, and at ICPA's Orlando meeting March 14-18. For those in the oil busi...