Showing posts from June, 2015

91 Cups and Mugs, 2 Experts

One of the problems of trying to chronicle all modern American jurisprudence on customs law is that I need to read it all. Sometimes that hurts more than other times. In this case, G.G. Marck & Associates, Inc. v. United States , the blame for my current headache does not lie in the drafting. It may be that I spent the afternoon in tasting rooms at breweries. Or, it may be the substance of the case. I rarely call out individual judges. In this case, I want to be clear that Judge Richard Eaton wrote a cogent opinion. The problem here is that there are 91 cups and mugs involved and two complicated issues. This decision is a yeoman's task of wading through facts and applying the law. The imported merchandise is 91 styles of cups and mugs. At liquidation, Customs classified the merchandise either as "mugs" in 6912.00.44 (10%) or as "other" in 6912.00.48 (9.8%). The difference is that "cups," as opposed to "mugs," fall in the "other&q

Scope, Protests, and De Novo Review

The scope of antidumping and countervailing duty orders is one of those issues that sits right at the intersection of trade law and customs law. The Department of Commerce determines the scope of an order and can issue rulings clarifying whether particular products are within the scope of the order. Customs and Border Protection makes the day-to-day decisions whether to apply an order to imports as they arrive and the entries are liquidated. Traditionally, Customs' role in this process has been described as "ministerial," meaning it simply does what Commerce says to do. On the other hand, Commerce has not envisioned every possible product and product description. What Customs does is, in reality, more than ministerial. It requires the analysis of the scope of the order and the nature of the merchandise. Customs applies facts to law--that is not really ministerial. That is what LDA Incorporado v. United States is about. LDA imports rigid electrical conduit from China.

A Little Catching Up to Do

I've been busy. That's a good thing. The U.S. Court of International Trade has been busy as well. That is also a good thing. I am taking this week off. That is a good thing. The Venn diagram of this situation looks like this:

Penalties and Default Judgments

What is the Court of International Trade supposed to do when the defendant in a penalty case refuses to show up? The answer is issue a default judgment against that defendant based on the well pleaded facts of the complaint. Unless challenged, those facts are taken as admitted and true. That is the background to United States v. NYCC 1959 Inc . The imported goods appear to be petroleum wax candles from China, which are subject to antidumping duties. At the time of entry, they were described as merchandise outside the scope of the order. Customs determined that the false statement was a violation of 19 USC 1592, and imposed a penalty based on gross negligence. A couple interesting points about this otherwise unremarkable case: The judge found that the uncontested allegations that (1) the importer provided a false description of the merchandise and (2) the importer had prior notice from Customs and Border Protection of the false nature of the statement sufficient to establish liabi

Prejudgment Interest: Statutory and Equitable

You may recall that in United States v. American Home Assurance Company , the U.S. Court of International Trade held that a surety could not be held liable for statutory prejudgment interest owed by the importer because the statute reaches only "ordinary" duties and not antidumping duties. However, in the same case, the CIT held that the government is entitled to prejudgment interest under equity. The Court of Appeals for the Federal Circuit has now reversed the CIT on the first point and vacated the decision with respect to the second point. The facts you need to know are few. American Home was the surety for an importer of crawfish tail meat from China, which is subject to an antidumping duty order. At the time of entry, the deposit rate applicable to the specific exporter was zero, which is convenient. But, following a review, liquidation occurred with a 223.01% assessment rate, which was inconvenient. The importer defaulted and Customs and Border Protection sought paym

Ruling of the Week 2015.19: Balance Ball Chairs

The good news is that I have a couple interesting customs law cases to post this week. the Court of International Trade has been busy with customs matters, and that is good for me. The bad news is that I missed posting a ROTW last week. I will try to double up this week. This ruling of the week involves a "balance ball chair." Hat tip to an astute reader who pointed it out to me. In N009306 , Customs classified a "chair" in 9401.80.40 as an other seat, of rubber or plastic. The chair was entitled to duty-free entry to the United States. Customs considered a similar chair in N144757 . In that ruling, Customs and Border Protection classified the chair in 9506.91.00 as an article or equipment for general physical exercise with a duty rate of 4.6%. Clearly, this is not your average chair, which is usually the opposite of exercise equipment. Rather, these are balance ball chairs. In the Customs Bulletin of June 10, 2015 , CBP is proposing to revoke N009306 and cl

CBP Extends a Helping Hand

If you were in customs compliance during the Clinton-years, you might remember Customs and Border Protection taking the public position that it was in the business of facilitating legitimate trade and that it would be a "kinder and gentler" agency. U.S. government people actually said that, or possibly I dreamed it. To me, it is real. That was before 9/11/2001, the creation of the Department of Homeland Security, and the shift toward border security as an existential issue of national security. By which I do not mean to denigrate that position at all. CBP's security job is important. Today CBP announced a possibly small program that is 100% in line with the kinder, gentler agency of yore and helps to facilitate U.S. exports. That's good for the economy. The program is the opportunity for exporters to request assistance on tariff classifications and customs valuation in other customs territories. Here is the pre-publication notice . It should show up in the Feder

Ruling of the Week 2015.18: Switchblades Redux

I covered the Switchblade Act already this year , but it is back for a second look. This time in HQ 263979 (May 29, 2015) . This is an instance where the importer got a surprise, and it is not the good kind. United Cutlery asked Customs and Border Protection for the classification of a style of "folding" knife it intended to import. The knife consisted of a black metal grip and a double-edged blade that tapers to a point. The blade retracts into the grip and is released via a button that slides in a linear track along one side of the grip. SO, the knife does not "fold" at all. Pushing the button forward deploys the blade. The blade is under pressure from an internal spring and there are two detents in the track. The button drops into the detents with the blade extended either 1/16th or 5/16th of an inch. A minimal amount of force applied to the button will bypass both detents causing the blade to spring forward fully and lock in place. The functioning of this s

Thank You, Otterbox

As previously discussed , the tariff classification of plastic cases for mobile phones, tablets, and similar electronic devices has been subject to much dispute. Customs and Border Protection has long held that they are usually, but not always, classified in Heading 4202 as if they are trunks, attaché cases, or musical instrument cases. I previously explained, in a fair amount of detail, why I think this is wrong. Turns out, barring interventions from the Court of Appeals, that I was right. Being right is a circumstance that always makes me happy. In a thorough and thoroughly well reasoned decision , the Court of International Trade has decided that cases for iPhones and similar products imported by Otter Products ("Otterbox") are not classified in Heading 4202. Rather, they are articles of plastic in Heading 3926. Customs had classified the goods in 4202 on the basis of Note 2(m) to Chapter 39, which excludes from Chapter 39 "containers" of Heading 4202. The pr

Ruling of the Week 2015.17: The Drinking Dead

You may recall, I previously posted about my concerns for the proper means of entering the shambling undead . It appears U.S. Customs and Border Protection has already contemplated the tariff treatment of drinkable zombies mixes. In NY N008597 (Apr. 13, 2007), the product was, among other things, a coffin-shaped cardboard box containing a bottle of "Citrus Zombie." The drink was about 70% water and 30% sugar with small amounts of flavoring a citric acid. The bottle included instructions to mix with equal parts of tequila, which is odd since a zombie cocktail is traditionally made with rum. According to CBP, this product is a food preparation not elsewhere specified or included, classifiable in 2106.90.9972. Helpfully, CBP pointed out that the item was not properly marked with its country of origin and that the food preparation is subject to FDA regulation. All of which is a segue into this cartoon from yesterday's paper . For copyright reasons, I'm just giving