Catching Up on 301

I feel lousy today. We all spent the last 15 months is varying levels of quarantine. Now, we are emerging. I am fully vaccinated. My family is fully vaccinated. So, we are letting down our collective guard. That seems to have been a mistake. Following a family gathering last weekend and a couple restaurant outings, I have a terrible head cold. My unscientific theory is that my immune system got bored during the pandemic and basically quit or at least went on vacation. Nevertheless, I am reading customs cases.

Related the 301 duties is a recent decision of the CIT in ARP Materials, Inc. and Harrison Steel Casting Co.  The issue here was whether the Court had jurisdiction of review the collection of Section 301 duties. This case is different than the Section 301 litigation discussed above in that the underlying issue was whether the merchandise was properly subject to an exclusion added to the HTSUS as the classification of the merchandise. Using just one of the plaintiff's facts for illustration, the relevant exclusion is HTSUS item 9903.88.43, which implements Note 20(vv) and covers, among other things "“[m]ountings and fittings suitable for motor vehicles of iron or steel, of aluminum or of zinc, other than pneumatic cylinders (described  in statistical reporting number 8302.30.3060).” HTSUS  Chapter 99, Subchapter III, U.S. note 20(vv)(96).

The question before the Court was whether Customs' decision to collect duties for merchandise arguably subject to the exclusion is protestable. If so, to the extent plaintiffs failed to timely file valid protests (which they apparently did not do in all cases), no relief is available. On the other hand, if the protest was either (1) manifestly inadequate or futile or (2) not permitted, then the case could proceed under the Court's residual jurisdiction. 

According to this court, this dispute is entirely about CBP's interpretation of the exclusions and its application of the exclusions to the subject merchandise. As such, this is a protestable decision because CBP engaged in a decision-making process, rather than acting in a purely ministerial manner. The importer should have protested. Having missed the protest date, the liquidation is final, and the Court dismissed the case for lack of subject-matter jurisdiction.


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