Bernard Newman

The case concerned the proper tariff classification under the Harmonized Tariff Schedule of the United States for imported leather "folios" that incorporated three-ring binders, notepads, pockets, and zippered closures. Customs classified the goods under subheading 4202.11.00 as similar to briefcases and attache cases at an 8% ad valorem duty rate. The importer argued for classification under subheading 4820.10.20 as diaries or personal organizers at a 4% rate, or alternatively under GRI 3 rules based on essential character. The court granted summary judgment to the United States, holding that the articles shared the common characteristics and purpose of Heading 4202 containers and that Chapter 48 Note 1(g) expressly excluded any such articles from classification under Chapter 48 regardless of GRI 3 arguments.

business & regulatorytaxes

The case involved CPC International's challenge to a U.S. Customs preimportation ruling requiring country-of-origin marking on retail containers of Skippy peanut butter that would incorporate Canadian-origin peanut slurry. Customs had initially applied NAFTA Marking Rules and later, on remand, applied the substantial transformation test under 19 U.S.C. § 1304(a) and Gibson-Thomsen factors to conclude that blending the Canadian slurry with domestic ingredients did not create a new article with a different name, character, or use, making retail consumers the ultimate purchasers who must be informed of the Canadian content. The court affirmed Customs' remand ruling, holding that the agency reasonably determined the essential character of the finished peanut butter derived from the peanut slurry and that its decision was not arbitrary, capricious, or contrary to law.

business & regulatory

This case concerns whether peanut butter manufactured in the United States using a small amount of Canadian-origin peanut slurry must be marked with Canada as the country of origin under 19 U.S.C. § 1304(a) and NAFTA regulations. Customs ruled that marking was required based on interim NAFTA Marking Rules in 19 C.F.R. § 134.35(b) and the hierarchical analysis in 19 C.F.R. § 102.11, without separately applying the substantial transformation test from United States v. Gibson-Thomsen. The court remands the matter to Customs, holding that the agency must also consider whether the manufacturing process substantially transforms the imported slurry such that the U.S. manufacturer is the ultimate purchaser exempt from marking requirements, as the interim regulations limiting Gibson-Thomsen to non-NAFTA goods may be inconsistent with the statute.

business & regulatoryprocedure

This case concerned the proper HTSUS tariff classification of imported "Shark Cartilage Protein Food Grade," a mixture of 52-60% processed shark fin cartilage and 40-48% dextrin, which Customs classified under subheading 2106.90.65 as "food preparations not elsewhere specified or included" at a 10% ad valorem duty. The importer contended that the product contained more than 20% "fish" by weight, triggering Chapter 21 Note 1(e) to exclude it from that heading, and proposed alternative classifications under fish-related provisions (such as 1603.00.90, 0305.10.20, or 0305.59.20) or the basket provision 0410.00.00 for edible products of animal origin. On cross-motions for summary judgment with no material facts in dispute, the court conducted de novo review and held that the cartilage had been so extensively processed (via shredding, enzymatic treatment, purification, deodorizing, and drying) that it no longer qualified as "fish" under the tariff schedule or common understanding, rendering the Chapter 21 exclusion inapplicable and rejecting the fish-specific headings; it further concluded that 0410.00.00 provided the correct classification as the more specific provision for animal-origin edible products. The topics are business & regulatory and federal power.

business & regulatoryfederal power

This case involved an importer's challenge to the U.S. Customs Service's tariff classification of copper tubes and pipes featuring internal spiral ridges and grooves under the Harmonized Tariff Schedule of the United States (HTSUS), specifically whether the features qualified as 'threaded' under Note 1(h) to Chapter 74 for duty purposes. The Court of International Trade had previously granted summary judgment to the government, dismissing the action, and the plaintiff sought rehearing under CIT Rule 59(a), arguing errors in fact-finding on the 'transmission of motion' function and in interpreting the statutory definition as a change from prior TSUS law. The court denied the motion for rehearing, holding that the plaintiff's assertions lacked evidentiary support such as affidavits to create a genuine issue of material fact, that the government's expert declaration was competent and uncontroverted on the mechanical meaning of threads, and that the HTSUS's explicit definitional approach reflected a congressional intent to narrow the scope compared to the earlier undefined TSUS provision. The decision emphasized that reargument of prior points and unsupported contentions do not warrant rehearing, while noting the competence assessment of witnesses under Rule 56(f) was not a credibility determination.

business & regulatoryproceduretaxes

The case concerned Target Sportswear's challenge to the U.S. Customs Service's rejection of an entry of men's wool suits that were cut in the U.S. Virgin Islands, assembled in the Dominican Republic, and finished in the Virgin Islands before export to the United States. Customs denied entry because the importer failed to present a textile export visa from the Dominican Republic, as required by the 1993 interim regulation at 19 C.F.R. § 12.130(c)(2), which treated the foreign assembly country as the country of origin for quota purposes despite substantial transformation in an insular possession. Target contended that the regulation was ultra vires because it fell outside the President's authority under Section 204 of the Agricultural Act of 1956 to promulgate rules implementing textile trade agreements. The court analyzed the scope of that delegated authority, the relationship between the substantial transformation test in § 12.130(b) and the new exception for goods processed in both insular possessions and foreign countries, and whether the regulation validly carried out quota agreements negotiated with foreign governments.

business & regulatoryfederal power

In this case, Melco Clothing Co. challenged the denial of its protests against customs duties on imported men's clothing by filing a summons in the Court of International Trade before paying all liquidated duties on five entries. The government moved to sever and dismiss those entries for lack of jurisdiction under 28 U.S.C. § 2637(a), which requires payment of all liquidated duties at the time the action is commenced. The court granted the motion, holding that the payment requirement is a strict jurisdictional prerequisite that cannot be satisfied by later payment and an amended complaint invoking the relation-back rule of USCIT R. 15(c). It reasoned that jurisdiction must exist from the filing of the summons and that procedural rules cannot create jurisdiction where none existed at commencement. The entries at issue were severed and dismissed, while the remaining entry proceeded.

business & regulatoryprocedure

This case involves the U.S. government seeking civil penalties from Modes, Inc. and its vice-president under 19 U.S.C. § 1592 for submitting false invoices to Customs on imports of Taiwanese jewelry from 1984 to 1985. The defendants used a double-invoicing scheme where a lower price was declared to Customs while the true higher price was paid separately, which the vice-president knew was illegal. The court granted the government's motion for partial summary judgment on liability, finding that the undisputed facts established intentional, material false statements constituting fraud under the statute, and rejected the defendants' statute of limitations defense after determining the action was timely filed based on the date of discovery.

business & regulatory

The case involved Win-Tex Products challenging a 1992 scope ruling by the Department of Commerce that determined its shop towels imported from Honduras fell within a 1983 antidumping duty order on cotton shop towels from China. Win-Tex sought to supplement the administrative record for judicial review by adding 1984 letters and other prior scope rulings related to similar products that Commerce had not considered during the 1992 proceedings. The court denied the motion to supplement, holding that under 19 U.S.C. § 1516a(b)(2)(A) the record consists only of materials presented to or obtained by the agency in the relevant proceeding, and the proposed materials were not sufficiently intertwined with the 1992 inquiry to require inclusion. The court distinguished Floral Trade Council v. United States as factually inapposite, noted that Commerce had explicitly warned parties about the record's limited contents, and emphasized that review must be based on the record made before the agency.

business & regulatoryprocedure

This case involved Japanese manufacturers and an American importer challenging the Department of Commerce's administration of a 1973 antidumping duty finding on roller chain from Japan. After multiple tentative revocation decisions and administrative reviews spanning over fifteen years, plaintiffs sought a writ of mandamus to compel timely completion of the 1990-91 review, judicial oversight of reviews, and relief from having to respond to questionnaires in the 1991-92 review, arguing that repeated delays and new reviews prevented final revocation despite de minimis margins. The court held the mandamus request in abeyance pending Commerce's compliance with a specified timetable for the 1990-91 review results and denied injunctive or mandamus relief regarding the 1991-92 questionnaires. It reasoned that Commerce had no statutory or regulatory obligation to defer post-tentative-revocation reviews or questionnaires, that the relevant regulation addressed only liquidation consequences of revocation rather than review procedures, and that there was no legal basis to enjoin the agency's actions or address speculative retaliation claims at that stage.

business & regulatoryprocedure

This case concerned the appraisal of imported hardboard by U.S. Customs under the transaction value statute. The importer sought to deduct a 2.5% contingent price bonus from the purchase price, based on a pre-importation agreement that required specific quantity deliveries and payments. Customs disregarded the bonus as a post-importation rebate, and the court upheld this determination. The court reasoned that the statute requires disregarding any such decreases effected after importation, and the importer failed to prove the contingencies were met before the entry date. Consequently, the court granted summary judgment in favor of the United States.

business & regulatory

This case involved a dispute over the tariff classification and duty rates for men's wearing apparel imported by Tail Active Sportswear from Hong Kong, where the company filed an administrative protest with Customs that addressed only women's apparel due to an alleged clerical error in the protest documents. Customs approved the protest and reliquidated the entry solely for the women's items, leading the importer to file a second protest claiming the men's apparel should also have been included, which Customs denied. The court dismissed the action for lack of jurisdiction, holding that the men's apparel was never properly raised in the initial protest as required by 19 U.S.C. § 1514 and related regulations. The core reasoning was that a protest must specifically identify the contested merchandise and category, a second protest against reliquidation cannot expand its scope to new items, and any alleged mistake or Customs official's understanding cannot substitute for statutory compliance.

business & regulatoryprocedure

Export Packers, a Canadian company, imported frozen salted liquid egg yolks and dried egg yolks derived from U.S. and Canadian eggs into the United States and contested Customs' classification of the goods under TSUS Items 119.65 and 119.70, which imposed duties of 27 and 5.5 cents per pound. The company argued the items should instead qualify for reduced duties under TSUS Item 806.20 as articles exported for repairs or alterations or for duty-free treatment under TSUS Item 800.00, seeking a refund of over $182,000 in excess duties, while Customs filed a counterclaim for $29,100 in erroneous refunds. The court granted summary judgment to the United States and dismissed the complaint, holding that Export Packers failed to comply with mandatory regulatory procedures under 19 C.F.R. § 10.8, such as filing required documentation at the time of export, which precluded eligibility for the preferred tariff treatment. The court also rejected arguments that administrative remedies were futile or that prior Customs actions waived the requirements.

business & regulatorytaxesprocedure

This case concerned G. Heileman Brewing Co.'s motion under Rule 60(b) to vacate an order dismissing its customs protest action over the classification of imported beer steins for failure to prosecute. The action had been suspended pending a related test case, but notices regarding transfer to the Suspension Disposition Calendar and the subsequent dismissal were mailed to counsel's former address due to an unrecorded change-of-address filing, returned undelivered by the post office, and not corrected by the clerk's office. The court granted the motion under Rule 60(b)(6), holding that the combination of counsel's inadvertence, lack of actual notice to the plaintiff, and errors by the court and postal authorities constituted reasons justifying relief from the dismissal. It ordered the action restored to the Suspension Disposition Calendar with instructions for a stipulated judgment.

procedurebusiness & regulatory

The case involved All Channel Products, an importer of television apparatus from Japan, challenging the U.S. Customs Service's appraisal of transaction value for ad valorem duties under 19 U.S.C. § 1401a, specifically contesting the inclusion of separately invoiced foreign inland freight charges in the CIF price. All Channel contended these charges should be deducted as nondutiable, while Customs maintained they formed part of the dutiable value. The court granted summary judgment to the United States and dismissed the action, finding no genuine issues of material fact and that the statutory and regulatory conditions for excluding the charges—requiring a sale for export to the United States, placement with a carrier for through shipment, and evidence such as a through bill of lading—were not satisfied. The ruling followed from the plain language of the transaction value statute and Customs regulations under T.D. 84-235, which treat such inland charges as part of the price actually paid or payable unless specific exceptions apply.

business & regulatorytaxes

The case concerned the proper customs duty classification of Brazilian frozen concentrated orange juice that Tropicana imported and then processed in its U.S. Customs bonded warehouse. Tropicana argued that blending and diluting the concentrate inside the warehouse changed its condition to “not concentrated,” qualifying it for the lower 20-cent-per-gallon rate under TSUS item 165.30; Customs classified the goods at the higher 35-cent rate for “concentrated” juice under item 165.35, ruling that the operations constituted impermissible manufacturing. The court held that the two-step warehouse process—selecting and blending lots with different Brix-to-acid ratios followed by dilution—fundamentally altered the imported merchandise and therefore amounted to manufacturing prohibited by 19 U.S.C. § 1562. Because the statute permits only rudimentary manipulations such as cleaning, sorting, or repacking, the court concluded the goods had to be classified in their imported concentrated condition. Judgment was entered for the United States and the action dismissed.

business & regulatorytaxes

This case concerns challenges by Silver Reed America and Silver Seiko to the International Trade Administration's Revised Final Results in an antidumping duty administrative review of portable electric typewriters from Japan, following a prior court remand. The court reviewed ITA's corrections to United States Price calculations, including removal of imputed currency exchange losses from indirect selling expenses, adjustment for double-counted interest costs, and a clerical error fix, as well as ITA's continued denial of a level-of-trade adjustment under 19 U.S.C. § 1677b(a)(4)(B). The court affirmed ITA's interest cost recalculations, finding that Silver Reed's actual borrowings occurred after resale to finance customer payment terms, making them properly treated as direct costs rather than indirect inventory costs. However, the court remanded the level-of-trade issue, holding that Silver had verified evidence of additional home-market selling costs to retailers that ITA failed to adequately consider, and that ITA had imposed an unreasonable evidentiary burden. The Revised Final Results were therefore affirmed in part and remanded in part for further agency reconsideration.

business & regulatory

This case concerns challenges to the Department of Commerce's calculations in an administrative review of an antidumping order covering portable electric typewriters from Japan, specifically errors in deducting selling expenses from the exporter's sales price (ESP). Plaintiffs sought clarification that the remand order required correction of all double-counting of selling expenses in the record, while intervenor sought rehearing on the deduction of an imputed interest expense for merchandise in transit. The court granted both motions, holding that ITA must review and correct any double-counting errors across the full record rather than limiting review to six invoices, and that the imputed interest deduction for time on the water was proper because such expenses are incurred in connection with U.S. sales and necessary to achieve an equivalent price comparison under the antidumping statute. The core reasoning is that the statute requires adjustments to reconstruct prices at a common point in the chain of commerce, and omitting relevant selling expenses would distort the margin calculation.

business & regulatory

The case involved Silver Reed America, Inc. and Silver Seiko challenging the Department of Commerce's final results from the first administrative review of an antidumping order on portable electric typewriters from Japan. Silver disputed Commerce's deductions of imputed credit expenses, currency exchange losses, and certain interest costs from the exporter's sales price, as well as its denial of adjustments to foreign market value for differences in quantities sold and levels of trade. The court reviewed the agency's actions under the substantial evidence and legal correctness standards, finding that Commerce had erred in deducting imputed exchange rate losses, double-counting certain expenses, imputing interest for time on the water, and in its handling of the level-of-trade adjustment claim. It therefore reversed those determinations in part and remanded the matter to Commerce for further explanation, recalculation of dumping margins, and reconsideration consistent with the opinion, while sustaining the remaining aspects of the final results.

business & regulatory

This case involved a challenge by Glamorise Foundations Inc. to the denial of a customs protest in the Court of International Trade. The plaintiff had entered into a stipulated judgment with the government, but the United States later moved to vacate the judgment and dismiss the action because the plaintiff had not paid all liquidated duties at the time the suit was filed, as mandated by 28 U.S.C. § 2637(a). The court granted the motions, holding that the statutory requirement for payment of duties is a strict jurisdictional prerequisite that cannot be waived by the parties or excused on equitable grounds, even where the plaintiff relied on its surety and the government had not raised the issue earlier.

proceduretaxes