The U.S. Court of International Trade's Broadening View: A Review of the Court's 2011 Jurisprudence Arising under 28 U.S.C. S. 1581(a)

By Kenner, Jason M.; Farrell, Beverly A. et al. | Georgetown Journal of International Law, Fall 2012 | Go to article overview

The U.S. Court of International Trade's Broadening View: A Review of the Court's 2011 Jurisprudence Arising under 28 U.S.C. S. 1581(a)


Kenner, Jason M., Farrell, Beverly A., Williams, Barbara S., Georgetown Journal of International Law


TABLE OF CONTENTS

  I. DECISIONS INVOLVING PROTESTS TO LIQUIDATION
 II. MERIT DETERMINATIONS BY THE COURT OF INTERNATIONAL
     TRADE
III. THE COURT'S VIEW OF THE SCOPE OF RELIEF AVAILABLE
 IV. CONCLUSION

In 2011, the U.S. Court of International Trade issued several decisions in actions arising under 28 U.S.C. [section] 1581(a) (1) where it interpreted fundamental principles in customs law. These lawsuits arose in the context of the U.S. Customs and Border Protection's (Customs) classification and assessment of duties under the Harmonized Tariff Schedule of the United States (2) (HTSUS) of entries of importations into the United States. The importation process into the United States is relatively straightforward. When importing goods into the United States, an importer makes entry of its merchandise with Customs and files entry documents. (3) Generally, for entries not liquidated through bypass deemed liquidations, (4) the port of entry examines the information provided by the importer and other relevant precedential documents to analyze their effect on the liquidation, and then liquidates the entry. (5) Liquidation of an entry is the final calculation by Customs as to the amount of duty owed on the entry. (6) If an importer disagrees with the liquidation, it can protest it. (7) If Customs denies the protest, the importer may commence an action with the Court of International Trade under 28 U.S.C. [section] 1581(a).

This Article will analyze an apparent trend in 2011 in the Court of International Trade toward liberally permitting a party to plead and prove its claims, even in instances where a party has disavowed a claim in the administrative process, failed to clearly list all individual items allegedly making up kits, or failed to include sufficient information on entry papers that would allow Customs to comply with U.S. Department of Commerce's (Commerce) liquidation instructions.

I. DECISIONS INVOLVING PROTESTS TO LIQUIDATION

When goods are imported into the United States and Customs liquidates them, if an importer disagrees with any of Customs' decisions regarding those goods, it must file a protest apprising the government of its objections. "[O]bjections must be so distinct and specific, as, when fairly construed," they notify Customs of the nature of the objections so that Customs can obtain the requisite facts and have a chance to correct its errors, if any. (8) In Estee Lauder, Inc. v. United States, (9) the Court took an objective approach to determining whether Estee Lauder, Inc.'s (Estee Lauder) protest was sufficient to encompass the merchandise at issue. Estee Lauder involved a dispute over the classification of certain "cosmetic kits" imported in 2005 for a holiday sales promotion. (10) Although the components were physically imported as a kit, the entry documents gave no indication of this fact. (11) The components of the kits were then liquidated separately; some were assessed with duties, while others were liquidated duty free. (12)

Estee Lauder filed a protest challenging the liquidation of each individual component rather than liquidating the whole because the "cosmetic kits consist[ed] of at least two (2) different articles ... put up together to meet a particular need or carry out a specific activity ... [and are] properly classified as 'goods put up in sets for retail sale.'" (13) In its protest, Estee Lauder generally described the merchandise as cosmetic kits "made up of a combination of various cosmetics, brushes, and applicators in a vanity case." (14) No sample of the merchandise was submitted with the protest.

During discovery, it was determined that the entry at issue contained a single model of "cosmetic kit" containing a vanity case, various make-up, brushes, and a canister to hold brushes, referred to as a "brush roll." (15) Estee Lauder's protest failed to list the brush roll as a component of the kits at issue. (16) Further, it was determined that, in 2005, Estee Lauder imported three different cosmetic kits, one of which, the "PX model," did not contain a brush roll. …

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