Customs Law

If you know me professionally, you know I have recently been going on ad nauseam about how there is almost never a dispute as to the facts in a classification case before the Court of International Trade.  As a result, my world view is that parties at the CIT should tee up the legal questions early and get the case resolved without a lot of time and effort going into probing the facts. Now and then, I am reminded that this is not always the case. Today, my reminder comes in the form of Tyco Fire Products L.P. v. United States . Tyco involves glass liquid-filled bulbs used in fire sprinkler systems as triggers holding valves closed. When heated, the liquid expands and eventually breaks the glass bulb causing the valve to open and the sprinkler to activate. Similar bulbs are used in water heaters to keep vent doors open. When heated, the bulb breaks and the vent door closes. That chokes out fire in the water heater. What we are talking about is the red part of this Tyco sprinkler ...

As mentioned, the Federal Circuit has again dismissed efforts by importers to challenge separate and unequal rates of duty on  certain items of apparel. The cases were brought by Forever 21, Rack Room Shoes, and a company called Skiz, which was created for purposes of pursuing this case (more on that later). This has been a tough case all along and the plaintiffs seem to have made a solid effort at getting a successful result. On its face, it seems to be an obvious proposition that a higher tariff on men's apparel than on women's apparel would discriminate against men. Imagine a sales tax in which men paid a higher rate at the cash register than do women. That would never be constitutional and that is similar to how the plaintiffs see this case. Unfortunately, the Court of International and the Court of Appeals for the Federal Circuit have seen it differently. Rather than the tariff being a tax based on the gender or age of the buyer, the tariff is a tax on merchandise imp...

My goal here has never been to be a source of breaking news, but it happens occasionally. In this case, I want to let you know that the Court of Appeals for the Federal Circuit has dismissed appeals challenging the constitutionality of separate and unequal tariffs for certain items of apparel. The decisive utterance of the opinion is: Neither Rack Room nor Forever 21 has pleaded facts sufficient to make plausible their claim that Congress enacted the relevant provisions of the HTSUS with discriminatory intent, and we therefore affirm the dismissal of their claims [by the Court of International Trade]. Skiz's appeal is dismissed for lack of standing. A detailed analysis will follow. For now, you can read the opinion here .

Some of this is old-ish, but still may be of interest. Customs has opened the last three of its planned Centers of Excellence and Expertise . The new CEE are in Atlanta (Consumer Products and Mass Merchandise), Miami (Agriculture and Prepared Products), and San Francisco (Apparel, Textiles, and Footwear). If you are currently participating in a CEE, please post a comment as to how you think it is working and whether you see any benefits yet. President Obama Seeking to Strengthen Enforcement of ITC Exclusion Orders . According to a White House announcement, the Administration has taken a number of steps to improve the enforcement and administration of the patent laws. One such step involves asking the U.S. Intellectual Property Enforcement Coordinator to undertake a review of current Customs and Border Protection and International Trade Commission procedures used to evaluate the scope of an ITC exclusion order for enforcement purposes. This is an interesting issue as it is not alwa...