Ruling of the Week 2016.22: Framing Substantrial Transformation

I like bikes. Lately, that is more in theory than in actual usage, but that is my fault. In reality, bikes are a transformative technology. They give kids their first sense of independence. They give everyone a means of transportation with zero carbon emissions. In some cases, the availability of that transportation may be lifesaving.

Thus, when I see something at work that involves bicycles, I usually take note. Such is the case with the September 21, 2016 Customs Bulleting and Decisions in which Customs and Border Protection revoked a ruling, N269994 (Nov. 20, 2015), on the country of origin of bicycles.

The bicycle in question is assembled in the United States from imported components, including frames. Customs had previously ruled that assembling components to a U.S.-origin frame produces a bike with the U.S. as the country of origin. In N269994, it apparently misapplied that same analysis to find the U.S. to be the country of origin of bicycles with imported frames.

In this new ruling, which is HQ H273304 (Aug. 11, 2016), Customs finds that the country of origin of the frame is the country of origin of the finished bike.

The starting point is the law, which requires that all articles of foreign origin be marked in a manner that will indicate to the ultimate purchaser the name of the country of origin. Note that the analysis is different for goods of a NAFTA country, that is not what we have here.

When the item is imported to be further processed, the question is whether the further processing is sufficient to make the item a product of the U.S. when sold to the ultimate purchaser. According to 19 CFR § 134.1(b), "Further work or material added to an article in another country must effect a substantial transformation in order to render such other country the 'country of origin' within the meaning of this part . . . ." A substantial transformation occurs when the article that emerges from a process has a new name, character, or use different from that possessed by the imported article. When that happens, the processor is considered to be the ultimate purchaser and the imported item is exempt from marking.

Here, Customs ruled that the imported frames were not substantially transformed. Customs reasoned that the frame is the most costly and essential component of the finished bicycle. Furthermore, Customs held that the frame provides the overall shape, size and character of the bicycle. "Because the bicycle is assembled in the United States and is one of the bicycle's essential components, the frame, is made outside of the United States, [Customs and Border Protection found] that the country of origin of the bicycle would be imparted by the frame." Accordingly, the country of origin of the bike is the country of origin of the frame.

I hate this decision. For some reason, Customs and Border Protection did a great job of setting up the issue and explaining the legal test for substantial transformation. Then it whiffed at trying to apply that test. The question is whether the finished bicycle has a new name, character, or use different from the imported frame. The question Customs answered is whether the frame is an expensive and important component. Those questions will not always produce the same answer. Furthermore, it seems likely that the "essential component" test Customs applied is less likely to result in substantial transformations than is the actual legal test.

From Manchester Triathlon Club http://www.man-tri-club.org.uk/

Let's try it here:

The imported item is a "frame" at the time of importation. No one would call it a bicycle. True, it is an essential component of the assembled bike. It also dictates many aspects of the nature and use of the bike. But, it is a frame. It just is. That is what it is called. Customs has stated many times that a change in name is the least probative of the three elements of name, character, or use. Nevertheless, it cannot be ignored that there is a name change here.

What about "character?" This test is hard to define. We know a few things for certain. The frame is not a completely assembled vehicle as is a bicycle. It has no moving part and is generally uniform in construction (i.e., it is most likely a collection of metal tubes welded together). If you want to move it, you need to pick it up or drag it along the ground. The finished bike, on the other hand, is an assembled, mechanical vehicle. It has moving parts of gears connected by a chain, it has brakes connected by cables to hand controls. It has wheels that rotate about their axle and a front steering mechanism that works with handlebars connected to the fork through the head tube. If you want to move a bicycle, you can roll it or ride it.

And what about use? The imported frame has exactly one use: it can become part of a finished bicycle. A bicycle has as many uses as you can imagine. It can be used to tackle the cobblestones between Paris and Roubaix. It can be used to race across the continent. A bike can help a girl in India get an education. A bike can be used to get documents across town or in an unsuccessful effort to outrun a tornado. A bike can help you "meet the future" or find the basement at the Alamo. When necessary, and with the right help, it can let you fly.

So, as you might be able to tell. I don't buy it. I think an imported frame--in all its carbon, titanium, steel, or aluminum glory--is a static component of a bicycle. Assembling the finished machine, in my view, substantially transforms the frame into a useful bicycle. Customs and Border Protection might not agree. But, if it is going to disagree, it should apply the proper analysis to get there.

Troll Update

I'm Larry Friedman. You may remember me from such blog posts as Customs Trolls and the False Claims Act. In that post, we talked about the case brought by a company called Customs Fraud Investigations LLC alleging that Victaulic Company had avoided the payment of marking duties by making false statements to Customs and Border Protection. At the time of the first post, the United States District Court for the Eastern District of Pennsylvania dismissed the case as failing to state a cause of action. The Court subsequently refused CFI's motion to amend its complaint in an effort to correct the deficiency. The Court of Appeals for the Third Circuit has now reversed the District Court and sent the case back down for further proceedings.

The case was brought under the False Claims Act. This law was passed after the Civil War as a means of ensuring that the government was not paying out on fraudulent claims. In a typical FCA case, the "relator" alleges that someone submitted a bill to the government for payment without a legal right. You hear about this a lot in cases where health care providers submit false bills to Medicare for payment. Someone, often an insider, who has evidence of the fraud can file a case on behalf of the United States and, if there is a recovery, share in the proceeds.

The amount that goes to the relator depends on what happens. After the case is filed, the Department of Justice reviews the complaint and decides whether to take over the case and prosecute it. In that case, the relator may receive between 15% and 25% of the recovery, If the DOJ does not take on the case, the relator can proceed with its own counsel. If successful, the relator may recover between 25% and 30% of the recovery. In addition, attorneys fees can be reimbursed. This is a good thing as it creates a private incentive to root out fraud on the taxpayers. It has also generated a plaintiffs bar of attorneys who file these claims.

CFI, the relator in this case, is a new kind of enterprise. According to the dissenting Third Circuit opinion, the company appears to have been created solely for the purpose of bringing this case, and presumably similar cases. That makes it similar to what patent lawyers politely call "non-practicing entities." These folks are more often called patent trolls. Non-practicing entities, or "Patent Assertion Entities," collect patents for the purpose of monetizing them not through manufacturing, production, or sales. PAEs, make money by purchasing large numbers of patents and threatening litigation against companies that actually make or sell things in related industries. They threaten litigation in the hope of securing license fees or settlements. They never have an interest in using the patented invention.  The FTC recently released a very thorough report on patent trolls with recommendations that courts take steps to limit the impact of PAEs.

CFI is analogous, which is why I dubbed it a "customs troll." Rather than collect patents, it mines the publicly available data showing what has been imported into the United States via ship and by whom. From that information, it can make some assumptions about the country of origin of various products moving in the commerce of the United States. It can then look for those products and determine whether they have been properly marked with their country of origin. To the extent it find evidence of products imported without proper country of origin marking, it can file an FCA case as a relator and hope for a recovery. This is exactly what it did to Victaulic, a Pennsylvania-based manufacturer of pipe fittings. CFI might also use the ships manifest data to find products subject to antidumping or countervailing duties and, based on resale price in the U.S., deduce that duties had not be properly deposited.

The reason this is analogous to a patent troll is that CFI is not in the pipe fitting business. It is not individually harmed by any alleged misrepresentation as to country of origin. It is also not a purchaser looking to support local business by purchasing American-made pipe fittings. CFI is also no a petitioner in any antidumping or countervailing duty case seeking to protect the domestic industry nor is it an importer of such products who paid the additional duties and wants to ensure that other importers do as well. CFI's only interest in these pipe fittings is as a relator and potential recipient of proceeds from the case.

CFI's complaint does not allege that Victaulic made a fraudulent request for payment from the government. Rather, it asserted that to the extent Victaulic imported improperly marked pipe fittings and failed to tell Customs that fact, it avoiding having to pay the 10% ad valorem marking duties that can be assessed under 19 USC 1304(i). This is a so-called "reverse false claim." By failing to disclose the non-compliant marking, Victaulic avoided the payment of marking duties.

How could CFI possibly know that the pipe fittings were improperly marked? From the manifest data, CFI determined that Victaulic imported 83 million pounds of fittings over a ten-year period. To determined whether the fittings were properly marked, CFI looked on eBay for pictures of Victaulic products. By treating eBay as a proxy for the entire U.S. market, Victaulic calculated that virtually none of the products in the U.S. marketplace are properly marked. In an effort to bolster its argument that it should be permitted to amend its complaint, Victaulic produced an expert witness report stating that its approach is statistically valid, a photograph of an allegedly unmarked part, and a witness who expressed a recollection of seeing an unmarked product.

That is all background, which is really the most interesting part. The third Circuit did not have to decide the merits of the case. The only question before it was whether the District Court properly denied the motion to amend. That is a lawyerly question on which we need not dwell here.

The salient points for customs and trade professionals are:

1. The FCA is broad enough to encompass as reverse claims "contingent, non-fixed obligations including those relationships with the government that result in a duty to pay the government money.
2. This extends to marking duties that would be applicable to improperly marked or unmarked goods imported into the United States.
3. Knowingly concealing from Customs that goods are unmarked results in the releass of merchandise without the payment of marking duties can give rise to a reverse FCA claim.
4. At least at the pleading stage, it is sufficient to use a statistical model, rather than direct evidence of fraud.

It is this last point that requires additional attention. Under the Federal Rules of Civil Procedure, allegations of fraud require an enhanced level of specificity. General assertions will not do. But the Third Circuit allowed CFI to amend its complaint on the basis of shipping data and eBay pictures. That is a long way from being able to tie a specific unmarked pipe fitting to a specific entry, which is more detail than is required. Despite that conclusion, the Third Circuit expressed its skepticism at this case. Further, it took the unusual step of instructing the District Court to be mindful of the burden this case is likely to place on Victaulic and to manage discovery accordingly.

That may open the door to more cases based on nothing but data mining and statistical modeling by professional customs trolls, which is a far cry from the traditional whistle blower with inside information. While that might expose real fraud, I'm not sure it is how the law was supposed to work.

This is a preliminary ruling. The case has to go back to the District Court.

Note that CFI is the relator in another case involving an alleged failure to pay antidumping duties on standard pipe from Mexico. The complaint in that case was recently unsealed.

Reminder to importers: If you want to avoid being on the receiving end of one of these suits, please make a formal request that Customs designate your manifest data as confidential. Customs will do that.

Ruling of the Week 2016.10: Share-A-Dram and NAFTA Marking

I've been at this a long time. Nevertheless, I am still sometimes surprised. That happened when I read N272495 (Mar. 1, 2016).

There are two "travel kits" at issue in this ruling. These are travel kits of the kind used by Victorian gentlemen tromping around the Amazon or Africa trailing a line of porters carrying their necessities. In this case, the necessities include six glass bottles with caps, two pipets, a funnel, coasters, a whisky taking journal, some other stuff, and a leather case for all of it. There is also a Share-A-Dram kit consisting of 12 glass bottles, a funnel, paper neck tags, and sample tasting ledger.

Customs and Border Protection decided that these kits are to be classified as retail sets based on the single item that imparts their essential character. For the travel kits and the Share-A-Dram, that is the glassware, specifically the drinking glasses, which are the most expensive glass items.

Here's the more interesting point. The drinking glasses are made in Germany and etched in the UK. There are pipettes in the kits, which are products of the United States. Everything else appears to be from China. The leather case includes a Japanese zipper. So, how should the importer determine the country of origin of the set and how should it be marked?

Interestingly, and without discussion, Customs used the NAFTA marking rules of 19 CFR Part 102 to determine whether the glass etching produced a tariff shift in the UK (it did not). Similarly, Customs used the NAFTA rules to determine that the zipper form Japan made a sufficient tariff shift to make the leather case a product of China. Chinese pencils embossed in the US do not change tariff classification and remain products of China.

Why is Customs doing this? It gives me a headache and this kind of analysis has given me a headache for years.  The only clue I can find is that the party requesting the ruling is in British Columbia, which is in Canada, which is a NAFTA country. The NAFTA marking rules are applicable to goods of a NAFTA country, so maybe that's the connection.

Let's assume that the goods are actually shipped from Canada, is this analysis correct? 19 CFR 134.1(b) says this:

Country of origin. “Country of origin” means the country of manufacture, production, or growth of any article of foreign origin entering the United States. Further work or material added to an article in another country must effect a substantial transformation in order to render such other country the “country of origin” within the meaning of this part; however, for a good of a NAFTA country, the NAFTA Marking Rules will determine the country of origin. 

So let's say, hypothetically, I import a German glass, etched in the UK from Canada. How do I determine the country of origin? Well, it comes from Canada, so for laughs we can check the NAFTA rules. We do that, and we determine that the glass is from Germany. It is not a good of a NAFTA country. Are we done? I don't think so. We next have to ask whether the etching is a substantial transformation. It's not, so we end up at the same place, but this is not a trivial matter.

The reason we have NAFTA tariff shift rules is to replace the substantial transformation test. That means the two test might produce different results. The NAFTA rules apply to goods of a NAFTA country. That means the NAFTA rules do not apply to goods for which the NAFTA marking rules indicate that the country of origin is other than Canada, Mexico, or the United States.

When a product is not the good of a NAFTA country, Customs needs to revert to substantial transformation. Or, am I wrong? Someone talk me out of this.

Ruling of the Week 2015.22: Beam Me Up

I see we are close to perfecting the Star Fleet-style impulse engine. It also appears that we are working on teleportation, one atom at a time. That got me wondering what Star Trek inspired devices might have been the subject of a Customs classification ruling. What I found is the Star Trek Flash Badge imported by the Kellogg Company to be included as a prize in boxes of cereal.

The plastic badges mimic the Star Fleet divisional insignia for Command, Engineering and Science plus insignia of the Klingon and Romulan Empires. Each badge contains a battery. switch and an LED. When the switch is depressed, the LED lights, illuminating the badge. According to Customs, the badges could not be worn and lacked any kind of pin to connect it to a uniform. Customs also noted that their entertainment value outweighed any utility.

Here's the interesting part. The badges were imported in bulk and then sent to cereal packaging plants to be inserted in boxes. The badges were not individually marked with their country of origin.

Let me stop here for a few observations. This ruling is from 2008 and these look to be J.J. Abrams-era badges. Here is the whole set, with a four-fingered Tony the Tiger Vulcan salute:

Here is another image of the whole set:

Of course, we should let our Geek Flag fly a little and mention that in the era during which recent Academy graduate James T. Kirk had command of the U.S.S. Enterprise (NCC-1701), the insignia was nothing more than part of the uniform. Its only function was to identify the wearer as being assigned to Command, Science, or Operations (which includes Engineering as well as Security). If you were unlucky enough to be assigned to a red-shirted job in Security, you were likely to be killed off without so much as a screen credit.

I'm concerned about this because these badges are "functional" in that they light up. That seems to indicate that they are mimicking some function in the original of which they are a model. That would lead to the conclusion that Kellogg's had somehow crossed the timeline and put a communicator badge of the sort used 80 years later on the NCC-1701-D by Captain Jean-Luc Picard and his crew into the context of a young Captain Kirk. Of course, the Picard-era badges did not light up, but let's put that aside.

There are a number of ways this may have happened. An easy hypothesis is that Q somehow sent them to Kellogg in 2008. This is contrary to the facts of the ruling, which state that the badges were made in China. Another possibility is that a member of the NCC-1701-D crew stumbled through a Guardian of Forever portal, thereby making a Next Generation communicator available to the reboot crew to be used by J.J. Abrams and Kellogg. I suspect that it the correct answer.

Because the badges were primarily articles of amusement, rather than actual communication devices, Customs classified them in HTSUS item 9503.00.00 as other toys, which are duty free.

But, what about the marking? In the ruling, Customs and Border Protection tells Kellogg that the badges are not properly marked with their country of origin. Do we agree with that? One might argue that if Kellogg is the purchaser and the outermost container that reaches Kellogg is marked "Made in China," which I am assuming it was, isn't that enough? After all, is the average cereal buying American concerned about the country of origin of the free toy included in the box?

That, however, is not the correct analysis. The prime directive of marking law [see what I did there?] is that every article of foreign origin must be marked with its country of origin in a conspicuous, legible, and permanent manner so as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin. 19 CFR 134.11. Who is the ultimate purchaser of a free give-away? This ruling does not provide much analysis, but Customs has consistently held that it is the recipient, not the purchaser. For example, little shampoo bottles given to hotel guests must be marked with their country of origin. Umbrellas given to race track patrons also much be marked with their country of origin. So, Customs did Kellogg a favor and pointed this out.

I don't want to tread too far into the jurisdiction of Law and the Multiverse, but I do wonder about customs formalities in the 24th century. I don't ever recall hearing about the Enterprise transmitting a cargo manifest for review by local authorities. Nor do I recall hearing anything about duties being paid. Is that because Star Fleet is essentially a military operation? Keep in mind that much of the machinations of the Star Wars universe is driven by trade regulations. I suspect Lando Calrissian is all over the Cloud City customs regulations.

I feel like there is a future article in the application of customs law to Star Fleet and the Star Wars universe, but that will have to wait.

In the meantime, if you are a fan who enjoys a detailed rehash of all things Star Trek including an analysis of the morals, messages, and meaning of each episode, check out the Mission Log podcast. It makes Thursday my favorite commute into work (excluding days I ride).

Another Defeat for Customs Trolls

Do you remember the tale of Customs Fraud Investigations, LLC v. Victaulic Company? If not, you should go back and read that post.

CFI is an entity established to conduct research and analysis with the apparent goal of identifying customs fraud. The ultimate goal of which appears to be to profit by bringing False Claims Act cases against alleged fraudsters. Nice business model.

In the case of Victaulic, CFI claimed that the company was not labeling its products consistent with the country of origin marking laws and regulations. While doing so, Victaulic also allegedly failed to notify Customs and Border Protection of the violation and deposit marking duties. As a result, according to CFI, Victaulic has committed customs fraud and, by making a false claim, deprived the U.S. government of lawful revenue. CFI claims it should be able to maintain a False Claims Act case on this basis and receive a portion of the revenue eventually paid to the U.S.

As previously discussed, CFI based this assertion on a comparison of Victaulic's publicly available ships manifest data and pictures of Victaulic products offered for sale of eBay. CFI claims that the pictures lack any country of origin markings or in some cases lack adequate country of origin marking. From that CFI concludes, and asked the U.S. District Court for the Eastern District of Pennsylvania to conclude, that it can state a cause of action under the False Claims Act.

As you know, the Court previously dismissed this case with prejudice because it found CFI had failed to state a claim. CFI is back in Court seeking to file an amended complaint. In its decision denying the motion, the Court recounts the history of this case and the application of the marking laws to the False Claims Act. The Court notes that there is no spot on the customs entry summary (CBP Form 7501) where an importer is required to disclose a liability for marking duties potentially imposed under 19 U.S.C. § 1304(i).

In this phases of the case, CFI has argued that is should be permitted to amend its complaint to state a cause of action. What follows in the opinion is larger procedural and primarily of interest to lawyers. So, I will get it out of thew way to make room for the more interesting point.

First, CFI waited too long to move to amend the complaint. CFI did not move to amend until after the Court entered final judgment against it. That was despite knowing that the Court was skeptical of the "bare bones" complaint and was contemplating a dismissal. The Court waited eight months between the hearing and the dismissal, giving CFI time to move to cure the defects in its complaint. This delay weighs against granting a motion to amend now.

More important, the Court found that any effort to amend the complaint would be futile because there does not appear to have been a violation of the False Claims Act. This is because an importer does not owe marking duties at the time of importation. That obligation arises only if unmarked or improperly marked goods enter the U.S. and are not subsequently remarked, exported, or destroyed. An importer is simply not permitted to preemptively say to CBP, "these goods are not properly marked, so here is my 10% marking duty." That's not how it works. Because the obligation does not arise at the time of importation, Victaulic did not make a false statement by failing to disclose the lack of payment of marking duties, which were not yet owed and may never be owed.

The more interesting question presented here is what will CFI or other FCA plaintiffs have to do to make a FCA case involving customs fraud?  Federal Rule of Civil Procedure 9(b) requires that a complaint "state with particularity the circumstances constituting fraud." The complaint must contain more than evidence of the mere opportunity for fraud. In that context, the Court made an interesting observation that:

It is worth noting that CFI is essentially a stranger to Victaulic. It has no inside information, unlike the typical qui tam relator, who has usually seen direct or indirect evidence of a fraudulent scheme. A current or former employee of a defendant, or an individual who is otherwise in a position to have inside information about a defendant's practices and conduct, bears some level of reliability when he acts as a qui tam relator because he was in a position [to] have observed the alleged fraud through personal experience. . . . When a relator is a complete stranger to the defendant who has constructed a case of fraud entirely from the outside, his allegations do not necessarily bear the same reliability. That is not to say that a corporate outsider cannot function as a relator. However, any outside investigation into a private company's fraud must, in accordance with Rule 9(b), supply the Court with a level of reliable information that strongly supports an inference a FCA violation occurred.

That is a pretty strong statement that prospective customs trolls will need to meet a high burden of pleading fraud. We should keep in mind that this is a decision from one district court. There have been and will be other efforts to bring FCA cases involving customs fraud. Some of those will succeed. So, this remains a developing area of law.

One thing that continues to be certain is that companies should request that their import data be treated as confidential. That will help prevent the kind of data mining CFI has undertaken. You can get started on that here.

Ruling of the Week 2015.13: Origin, NAFTA and Circular Reasoning

The NAFTA Marking rules are a giant mystery to many people.

Let's assume you are importing evaporator cores from Mexico. The cores are initially produced in South Korea and shipped to the U.S. From here, they are exported to a facility in Mexico that adds fittings and connections before shipping them back to the U.S. Once back here, they are used in the assembly of automotive air conditioners. When returned to the U.S., the cores are not NAFTA originating. You can assume that set of fact because it is what happened in CBP Ruling N014917 (Aug. 2, 2007).

So, how do you analyze the origin of the cores?

The U.S. has various rules used to determine country of origin. Most products that are not wholly the growth or product of a single country are deemed to originate in the last country in which it was subject to a substantial transformation, i.e., a change in name, character, or use. See 19 CFR 134.1(b). That section goes on to say "however, for a good of a NAFTA country, the NAFTA Marking Rules will determine the country of origin." Those rules are in Part 102 of the Customs Regulations.

The NAFTA Marking Rules are not based on substantial transformation; they are an exception to it. The NAFTA Marking Rules are a hierarchy of successive tests, one of which might determine the country of origin. In the case of these evaporator cores, the first applicable test was whether the foreign materials, in this case the Korean parts, made a qualifying change in tariff classification as a result of the processing in Mexico. They did not.

The next applicable test stipulates that the country of origin will be the country or countries of origin of the single material that imparts the essential character to the good. In this case, that was the Korean-origin core. Bingo! Korea is the country of origin. So says Customs, read it for yourself.

I have two thoughts on this.

First, there is an interpretive note stating that the only materials that merit consideration as imparting the essential character are those materials that are classified in tariff provisions from which a change in tariff classification is not allowed. This seems like an odd rule and it is pretty obscure, but it makes sense. The changes in tariff classification appear to be designed to require a lot of processing and added value. Often, for example, a change from a parts subheading to a finished goods subheading in the same heading will not be a qualifying change. That is because the operation is probably relatively simple assembly without much value added. But, a change from a raw material of one heading to a finished good of another heading is indicative of a lot of added value. So, the materials excluded from a qualifying tariff classification are closer to the finished article and are, therefore, more likely to represent the essential character. Makes sense to me.

Second, is CBP's conclusion correct? I am on the record about this issue elsewhere in this blog. The NAFTA Marking Rules are only used to determine the country of origin of "goods of a NAFTA country." A "good of a NAFTA country" is something determined under the NAFTA Marking rules to have the country of origin of Canada, Mexico, or the United States. South Korea is not a NAFTA Country.  That means the application of the NAFTA Marking Rules spit this evaporator core out of Part 102 and back into Part 134. Right?

To my way of thinking, that means the question is whether the operation in Mexico resulted in a substantial transformation. That is an arguable point. But, this ruling did not go that extra step and the importer apparently did not make that argument.

By the way, since this and other rulings don't seem to track my thinking keep in mind my general disclaimer: this is not legal advice. It's just me talking.

Ladies and Gentlemen: Pitcairn Island Honey

Because I have some of the best and well-traveled readers (and their relatives) in the compliance business, I have received a picture of a Pitcairn Island country of origin label. An anonymous reader had this jar of honey in a cabinet.

So, compliance pros, what do you think of the marking? Does "Pitcairn Island, South Pacific Ocean" satisfy the U.S. Customs and Border Protection requirement for country of origin marking?

Let me know what you think in the comments.

Ruling of the Week 2015.8: Old Jersey and Pitcairn Island

For today's ROTW, I set out looking for a ruling dealing with some far off and preferably warm location. Turns out that, with the exception of coastwise transit issues, there are no Customs and Border Protection rulings involving Pitcairn Island or any of several Pacific Ocean microstates including Tuvalu, Niue, and Kiribati.

Pitcairn Island

What I did find is an interesting question about the country of origin marking for products of the Bailiwick of Jersey Island, Channel Islands. The ruling is HQ 561938 (Mar. 18, 2002). For those of you who may not know, Jersey is an island off the coast of Normandy, France. It is an independent international actor and not part of the U.K. although the U.K. is responsible for its defense and external relations. Also, the Queen is the Head of State in her capacity as "the Crown in Right of Jersey." It is, according to the U.S. Department of State, a "Crown Dependency" along with the Isle of Man and the Bailiwick of Guernsey.

So, what we know is that it is geographically and politically close to the U.K. It is politically distinct from the U.K.; but, it is not fully independent. That raises a question of how goods that originate in Jersey are to be marked when imported into the U.S.

Here, without additional comment, is the answer according to U.S. Customs and Border Protection:

For country of origin marking purposes, colonies, possessions, or protectorates outside the boundaries of the mother country are considered separate entities. Section 134.45(d), Customs Regulations (19 CFR 134.45(d)), states that the name of the colony, possession of protectorate shall usually be considered acceptable marking. However, when the name is not sufficiently well known to insure that the ultimate purchasers will be fully informed of the country of origin, or where the name appearing alone may cause confusion, deception, or mistake, clarifying words may be required. In such cases, the Commissioner of Customs shall specify the additional wording to be used in conjunction with the name of the colony, possession, or protectorate.

With regard to the Bailiwick of Jersey, Channel Islands, Customs has issued Treasury Decision (T.D.) 68-292(2), dated November 22, 1968, which states that, "[s]ince the States of Jersey, Channel Islands, attached to the Crown of England, are not a part of the United Kingdom or Great Britain, the marking "Made in Jersey, British Isles" constitutes acceptable country of origin marking." Similarly, T.D. 73-106, dated April 13, 1973, held that the marking, "Made in Guernsey, British Isles" was acceptable country of marking for goods produced on the island of Guernsey, Channel Islands. The phrases, "Manufactured in Jersey, British Isles," "Product of Jersey, British Isles," "Made in the British Isles" or "Made in the United Kingdom" would also be acceptable for purposes of 19 U.S.C. 1304.

I feel that the remaining descendants of the HMS Bounty should seek a CBP ruling on something, just for the heck of it. Apparently, they sell honey, soap, and honey soap. If you happen to see this, would represent you on a country of origin question just for the fun of it.

Next, on to Cueta and Mellila, little bits of Spain stuck in Morocco.

Quoth the Blogger, "Skidmore?"

Continuing my effort to catch up with the Court of International Trade and one decision of the Federal Circuit, we now come upon JBLU, Inc. v. US, a recent decision of the Court of International Trade.

The issue in this case is whether wearing apparel from China bearing the brand-name "C'est Toi Jeans Los Angeles," "CT Jeans USA," and "C'est Toi Jeans USA" were properly the subject of a Notice to Mark or Redeliver for failure to have adequate country of origin marking. Customs and Border Protection maintains that the use of "Los Angeles" and "USA" on the labels requires the there be in close proximity and in comparable size a a country of origin marking preceded by "Made in," "Product of," or another similar phrase. This requirement comes from 19 CFR 134.46,

The importer maintains that section 134.46 does not apply because the geographical designations are part of a trademark or trade name. That argument comes from 19 CFR 134.47.

The nub of the issue comes down to whether Customs' definition of "trademark" for purposes of interpreting the regulation is correct. Customs applies the trademark regulation only to registered trademarks or where there is a pending application to register a trademark. The importer claims the regulation applies to trademarks under federal law as well as common law trademarks, which are unregistered but used in commerce. A federally registered trademark is denominated with the (R) symbol while a common law trademark sometimes gets marked with the letters TM.

To cut to the chase, the Court upheld Customs' interpretation and found that to the extent there was no pending application to register the trademarks at the time of some of the entries, the Notice to Mark or Redeliver was a valid exercise of CBP authority as to those entries.

I do have a question to raise respectfully. According to the Court of International Trade, in the absence of a definition of "trademark" in the regulation, the Court must "give Customs' interpretation of 19 C.F.R. [sec] 134.47 substantial deference, unless it is 'plainly erroneous or inconsistent with the regulation.'" For that proposition, the Court cites Supreme Court precedent and a Federal Circuit case involving a review of a dumping determination.

In the context of the de novo review of the denial of a protest, would it have been appropriate for the Court to also or instead apply Skidmore deference to CBP's determination? In that event, the Court would have to decide whether CBP's decision has the power to persuade the Court.

The decision notes that Customs' position is consistent with prior rulings and with the purpose of the marking law. Thus, I think the Court is basically saying that Customs' legal interpretation is persuasive and passes muster even under the somewhat looser Skidmore standard. That means the result is the same no matter how the Court cuts it. So all I am talking about is the label put on what the Court did.

With apologies to Edgar Allen Poe.