Published January 21, 2014 by

CBP Can’t Hide Behind Ministerial Shield… sometimes

In the Corning Gilbert Inc. v. U.S., importer asked the Court of International Trade for an opinion about Customs and Border Protection (CBP) role in enforcing decisions of other agencies.  The specific issue concerned general exclusion order issued by International Trade Commission (ITC) in the patent infringement investigation for coaxial cable connectors.  Exercising ITC’s authority under 19 U.S.C. § 337(d)(2)(a), the Commission directed CBP to exclude all unlicensed “coaxial cable connectors that infringe claim 1 and/or claim 2 of U.S. Patent 6,558,194.”  Id.  Since the patent in question has only two claims, the ITC’s decision essentially concerned the whole patent.  Now here is the interesting part:  when deciding whether or not to exclude the merchandise, can CBP rely on interpretations of the ITC, or should CBP make its own inquiry?  In Corning Gilbert, CBP thought that reliance on ITC’s interpretation would suffice.  The Court, however, disagreed and requested CBP to exercise its own discretion: “Customs may have to go beyond the mechanical application of the ITC’s Section 337. It may have to look at evidence and analyze whether the importer, particularly a non-party such as Corning Gilbert, has established non-infringement.” Id. This holding is significant in light of CBP’s peculiar role as…

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Product Regulation U.S. Federal Agencies U.S. Federal Courts

Antidumping Computers & Electronic Products Court of International Trade Customs and Border Protection Department of Commerce Intellectual Property Rights International Trade Administration International Trade Commission Protest

Published February 7, 2012 by

Lawfully Avoiding Duties & Fees For Your Medical Products: Nairobi Protocol Application

Demographic map of the United States is tilting toward a higher age median.  The tilt is accompanied by the increased demand for medical appliances that assist many aging Americans in their daily activities.  The appliances range from canes and walkers to bath seats and commodes.  Much like other products, many medical appliances are made outside of the United State, and therefore must be imported.  Medical imports may be subject to duties and almost always assessed a Merchandise Processing Fee, which is currently at 0.3464% or $495 per Customs Entry, whichever is lower.  Naturally, importers do not wish to pay any duties or fees for their medical products.  One way of avoiding such payments would be to invoke The Nairobi Protocol provisions.  If The Nairobi Protocol applies to the importer’s product, that importer does not pay any duties or merchandise processing fees for the applicable product.  See e.g.  N044079 (2008) (“This merchandise is already duty free, but if you elect to claim the secondary classification in Chapter 98 of 9817.00.96 and meet the entry requirements, no merchandise processing fee will apply to those importations . . . . .”). Historical Background In 1950, The Agreement on Importation of Educational, scientific and…

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Trade Agreements U.S. Federal Agencies

Customs and Border Protection Department of Commerce Harmonized Tariff Schedule Classification HTS Heading 9817 Import Administration International Trade Administration Post Entry Amendment Protest The Nairobi Protocol United Nations

Published January 2, 2012 by

Antidumping Duties: Separate Rate – Staying Ahead of the Trading Curve

If you have an interest in the U.S. antidumping laws, LawCustoms recommends Antidumping Duties: Separate Rate –  Staying Ahead of The Trading Curve.  The article is based on the analysis and application of the U.S. antidumping laws from the perspective of the U.S. importer and non-U.S. exporter who seek to qualify for the separate antidumping rate.  The author suggests a lower cost alternative called “separate rate” available to the manufacturers and exporters of “non-market economy” nations such as the People’s Republic of China.  Antidumping Duties: Separate Rate explores a recent record record published by the International Trade Administration, U.S. Customs, as well as, other governmental bodies and synthesized it into a story of experiences by members of international trade community.  While the focus of the article is the application of the U.S. antidumping regime to the People’s Republic of China, many of the principles can be extended to other countries also. The story begins with a general overview and evolution of the U.S. antidumping laws from the Wilson Act to the present day Tariff Act.  The overview touches on roles and responsibilities played by the manufacturers, exporters, importers, and governmental agencies.  Then, the article suggests a practical “checklist” of key…

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Product Regulation Sovereign Nations U.S. Federal Agencies

Antidumping China Department of Commerce Import Administration International Trade Administration