Customs Law

I am surprised to learn that I did not cover the Court of International Trade's classification decision in Alcan Food Packaging v. United States, because the Court of Appeals for the Federal Circuit has now affirmed that decision. Like the last Ruling of the Week, Alcan is an important decision in that it counsels against the desire importers sometime have to jump to "essential character" or "relative specificity" to decide between two possible tariff classifications. You can't do that until you have fully exhausted the text of the headings and any relative chapter and section notes in the Harmonized Tariff Schedule of the United States. In this case, the product is a packaging film made of a layer of aluminum foil and two or more layers of plastic. There is more plastic than aluminum but both materials are necessary for the material to perform its function. That function includes hermetically sealing U.S. military ready-to-eat meals. Alcan, the imp...

I have mentioned before that one of the side effects of being a customs lawyer is exposure, directly and indirectly, to all sorts of strange and interesting products. Take, for example, the dance shoe sizing kit. The kit consists of several left shoes in a spectrum of sizes and a ruler for measuring feet. The shoes and the ruler are marked "Sample Not for Resale." The tariff classification for this kit was determined in NY N257784 (Nov. 18, 2014) . The purpose of this kit is, as you might expect, is to solicit sales of dance shoes from potential customers in the U.S. As is often the case in rulings issued by the NY office of Customs and Border Protection, there is not a lot of analysis in the ruling, just a result; which we will get to in due course. The first question to ask is whether the shoes and rulers constitute a retail set that should be classified as a whole under General Rule of Interpretation 3(b). If so, the sample shoes and the sample rulers, if put up for r...

I skipped a post on a prior case from the Court of International Trade called United States v. Tenacious Holdings, Inc. , on the grounds that it seemed to be a one-off without a lot of general applicability. I appear to have been wrong. There is already a new case along similar line. That case is Sigma-Tau Health Science, Inc. v. United States . Both cases involve a motion to have a case referred to Mediation. In Tenacious , the Court of International Trade granted the motion. In Sigma-Tau , the Court denied the motion. As background, you need to understand that the Court of International has a process called Court Annexed Mediation under Rule 16.1 . The idea is that before a case moves to a trial or motion for summary judgment, the judge assigned the case can ask a different judge to take a look at the case as a judge-mediator. The goal is to promote the settlement of cases. But, the process does not happen particularly often at the CIT. There may be lots of reasons for that, but ...

I often run into questions about whether a NAFTA CO is acceptable backup for a NAFTA claim or to support another NAFTA CO. Here is what Customs and Border Protection has to say on the issue: CSMS #14-000598 This posting seeks to clarify the meaning of the terms “valid NAFTA Certificate of Origin,”  “invalid NAFTA Certificate of Origin” and “defective NAFTA Certificate of Origin”.  Additionally, CBP reminds importers that preference will be denied when possession of a valid NAFTA Certificate of Origin at the time of the claim cannot be substantiated. A NAFTA Certificate of Origin is valid if it: 1. Lists the good in question 2. Covers the period in question 3. Includes the exporter’s or his agent’s signature in block 11a “Authorized Signature” 4. Was in the importer’s possession at the time of the claim, as demonstrated by 1) a block 11e “Authorized Signature” date prior to the date of the preference claim, and 2) submission upon request of a CBP official A NAFTA Cer...

Jean-Marc Clement, a Canadian customs and trade expert with BCF in Montreal has started blogging from a Canadian perspective. Read his first entry here.  It involves the tariff classification of swivel chairs and is an entertaining and interesting piece.

There is an antidumping duty order covering honey from China. That means that exporters and importers will look for clever ways to stay outside the scope of the order. Some of those will be legal; finding a new supplier in Vietnam, for example. Others will be decidedly illegal; like labeling honey as rice syrup. One interesting possibility is diluting honey until it is no longer 50% honey by weight. At that point, it is outside the scope of the antidumping duty order. In this game of cat and mouse, Customs and Border Protection needs to continually find ways to identify the presence of honey and its origin. HQ H187175 (May 14, 2012) illustrates part of that problem. The imported merchandise was reported as "honey and rice syrup mixture" from China. If the mixture is 50% by weight or honey, it is subject to antidumping duties. As entered, the goods were classified in HTSUS item 1702.40.40 as glucose and glucose syrup, containing in the dry state at least 20 percent bu...

Having now read the second opinion in Puerto Rico Towing & Barge , I'll just say that I am not going to do a full recap. This is an effort to have the Court of International Trade change its original judgment in favor of the United States. The company raised a few points about alleged errors in the Court's prior analysis, but the Court did not see anything substantive there. So, the original decision stands . My second quick update is to Rockwell Automation v. U.S., which is the case about the functioning of the Court of International Trade's Reserve Calendar. For background, read the original post here. You will recall that an issue in the case is whether several motions for extensions of time to remain on the Reserve Calendar were timely. The relevant rule is Rule 83(d), which says: (d) Extension of Time. The court may grant an extension of time for the case to remain on the Reserve Calendar for good cause. A motion for an extension of time must be made at lea...

I'm working on work which is making working on things that are not work, a bit of a chore (which would be work). I know I have a Jones Act case and a second look at the Reserve Calendar to cover. I promise to work on getting to that particular piece of activity which is not work even though it may appear to be work. Mostly, I hope my non-work effort makes your work less of a chore (which would still be work).

Ever wonder what happens to scrap printed circuit assemblies? They get mined for valuable metals, primarily for copper. I know that because I read HQ  H218910 (Dec. 17, 2013). The issue in the ruling is the classification of the scrap PCA's. They might reasonably be classified as waste and scrap of plastic (which is the substrate) or of metal. They might also be classified as various electronic components such as resistors or as electronic assemblies such as control boards. Waste and scrap is not defined in the tariff schedule, but there are cases that address the concept. The Courts have collectively arrived at a definition of waste as material with no original value or no value for the ordinary or main purpose of manufacture. That means that lower grade or inferior products that are otherwise functional and saleable are not waste, they are just inferior. Think factory seconds or day old bread. In the metals context, Note 8(a) to Section XV defines "waste and scrap...