CIT Ruling Raises Questions about Importers’ Ability to Challenge HTSUS Modifications
August 11, 2009
Last month, Judge Judith Barzilay of the U.S. Court of International Trade (
The ruling was made in a legal challenge launched by Barnes/Richardson on behalf of Target Stores, Michael Simon Design, Inc., and others, regarding 2007 modifications to the HTSUS that were intended to implement nomenclature changes agreed upon by the World Customs Organization. The modifications removed certain “utilitarian” holiday-themed products, including tableware, certain types of apparel and linens, from a list of products classified as “festive” articles that qualified for duty free treatment. As a result of the 2007 modifications, customs duties ranging from 3 to 30 percent ad valorem are now applied to these products.
Pursuant to 19 U.S.C. § 3005, the
However, in her ruling, Judge Barzilay wrote that the
Ordinarily, when two statutes are interpreted together, they are interpreted so that both have meaning. With regard to 19 U.S.C. §§ 3005 and 3006, the President’s authority to modify the HTSUS under Section 3006 is dependent upon receiving a valid recommendation from the
Alan Goggins, a partner in Barnes/Richardson’s NY office, indicated in an interview in the August 7 issue of Inside U.S. Trade that the firm will appeal to the Court of Appeals for the Federal Circuit on the basis that Judge Barzilay’s ruling effectively abrogates the requirements of 19 U.S.C. § 3005. Importers that pay duty on utilitarian holiday products should continue to pursue duty refund claims on such articles, and should contact counsel immediately in order to determine the appropriate method to capture full potential refunds for duties paid on entries since the 2007 effective date.