Duest

There is a chance I will soon see a gap in my schedule large enough to write a post or two. It could happen. I'm not promising, but it could.

There are several Court of International Trade decisions to discuss. We also have a new trade agreement with Mexico and Canada that we will not call NAFTA; it is the United States Mexico Canada Agreement. The only pronounceable word I can get from that is "UnMexiCan." That does not seem good for political marketing in Mexico. I hope to give some highlights of that agreement here.

You may also have noticed that today was the deadline for filing exclusion requests from the first round of Section 301 duties on goods from China. That, and 232 duties, is a significant part of why I have had my head down.

I am back in the mix for the Expert Institute legal blog competition.

Do me a favor and vote here.

Thanks to everyone at ICPA who stopped by to tell me that they read the blog. I don't always pay close attention to the site analytics and I don't have particularly good visibility of who is visiting. Seeing you all in real life is very encouraging. Keep reading. See you in San Diego.

This is one of those posts in which I tell you that there are many cases and rulings sitting on my desk, all of which I plan to use as the basis for upcoming blog posts. It is also the end of the year and the time when I contemplate the state of this blog. [Note: Shaking my fist at the ABA Journal] This has been a good blog year, despite having fallen behind on my coverage of rulings. My personal view is that the content remains of acceptably high quality combined with it usually being timely. So that's good. I did earn recognition from the Expert Institute; fifth place out of a large field is not too bad. Thanks for your votes.

I'll continue to plug along here and hope you stay with me in an 2017. As always, I sincerely appreciate my readers. At the recent Court of International Trade Judicial Conference and at a trade meeting in Chicago, folks introduced themselves as readers. That always makes me happy. I hope to see more of you at upcoming events. Feel free to comment on my posts, I would love to see more reader engagement.

That all sets the stage for me to say to you and your families, "Happy Seasonal Holiday of Your Personal Choosing" and a very Happy New Year to you all.

I received an email telling me that this blog is in the running for some kind of recognition among legal blogs in niche or specialty practices. To win, I need readers to vote. So, please do me a solid by visiting this site and voting for my blog. You'll need to navigate down the page to find The Customs Law Blog. Then click the image of the blog. That will take you to the voting page.



Thanks.

And, watch this space for a review of a case from the Supreme Court of Canada and some developments involving the False Claims Act.

Once upon a time, there was the Customs Law Blog. It was a happy place where the Blogger diligently provided useful and occasionally entertaining updates to his readers, all of whom he liked very much. But sometimes things did not go as planned. Sometimes, the Blogger needed to work. Even when "work" is mostly planning a big party for some visiting lawyers, talking to trade groups, and finishing a new version of his text book,  there is still real work to do for people who pay real bills. That leaves the Blog and its loyal readers with nothing new to read. That is, until the Blogger finds time. "Don't give up loyal readers," says the sad and tired Blogger, "I have something new for you and I'll post it soon."

I realize it has been a month since my last Ruling of the Week. I am reasonably certain I will come up for air soon and post some new material. In the meantime, if you are in NYC for the CITBA CLE and Annual Meeting on Thursday, I hope to see you there.

It is apparent that I did not succeed in my goal of getting 52 Rulings of the Week into the Blog. Despite, that, I think this has been a pretty productive blog year. This will be my 71st post of the year, with one to follow. That will probably cap 2015. Next year, I hope to pick up the pace somewhat. I'll continue trying to post the Ruling of the Week and court cases. I'll also make an effort at other administrative news.

You know what I miss? Posts about animal smuggling. Keep an eye on my Twitter feed for news, mostly in the form or retweets from other bloggers.

For now, consider the chutney problem.

Headquarters Ruling H259324 (Sep. 3, 2015) involved the tariff classification and NAFTA status of green olive tapenade from Canada. This ruling is from a protest with an application for further review. That means that Customs and Border Protection denied the NAFTA claim made on this merchandise and the importer protested. In what appears to have been an effort to make the product satisfy the applicable NAFTA rule of origin, the importer suggested that its original classification as prepared or preserved vegetables of Heading 2005 was incorrect and the tapenade was classifiable as a sauce or a preparation for a sauce in Heading 2103.

Tapenade via Wiki Media

If you have been to a snooty restaurant serving Mediterranean-inspired New American California farm to table cuisine (and who hasn't?), you have had tapenade. It is, in my experience, a spread of mashed olives (usually black ones) with other flavorings. In this case, it was made form non-NAFTA olives, diced tomatoes, red peppers, carrots, onions, vegetable oil, garlic, and lemon juice. Not all of those ingredients originated in the territory of a NAFTA country. As a result, to qualify for the NAFTA preference, the production of the product must produce a qualifying change in tariff classification for all of the non-originating materials. The qualifying change depends on the classification of the finished product.

The importer asserted that the tapenade was properly classified as a sauce or sauce preparation. But, CBP and the Court of International Trade have been down that road before. A sauce is defined as a homogenous preparation that it is not intended to be eaten on its own. Rather, a sauce is to be added to food as a condiment, usually in liquid form, to make the food more palatable. And, dipping a piece of bread still counts as eating it alone.

Here, the tapenade appears to have been chunks of vegetables mixed with oil. It also appeared based on marketing information that it was both intended and actually eaten alone.

The importer did a fantastic piece of lawyering by introducing into the record recipes by which the tapenade could be added to broth and other ingredients to make a sauce. I hope Customs has a test kitchen and tried out the preparations. [GaK, please let me know if you did!] The importer argued this showed that the tapenade is a sauce preparation. Customs did not buy that argument. If it did, I suspect every tomato would also be a sauce preparation.

As I read this, it appeared to me that Customs was doing a fine analysis. But, then we hit the chutney wall. Chutney is a delicious combination of sliced fruit sweetened with sugar and flavored with lemon and mustard. It is a thick, globulous  preparation that does not readily pour over food. It is, however, used as a condiment for meat and other dishes. Personally, I like mango chutney on a turkey sandwich, but that's just me.

Muffuletta from Wiki Media

In HQ 962419, Customs held that chutney is a sauce of 2103 rather than a preparation of fruit. To distinguish the tapenade from chutney, Customs pointed out that the solid portion of the tapenade is suspended is a semi-transparent red liquid. Customs noted that unlike chutney, this tapenade is not gelatinous, not creamy, and not a spreadable paste. It sounds to me that this was a runny form of tapenade, possibly more like an olive giardiniera or even a muffuletta, either of which is delicious but not a tapenade.

You know what a runny liquid with suspended vegetables is? A sauce. If this stuff was runny enough to be poured over meat and if there was evidence of that use, it seems to me that it might be properly classified as a sauce. If, on the other hand, it looks like the muffuletta in the picture above, it is really not much more than chopped olives and other vegetables in oil, which seem not very homogenous and sauce-like to me.

Customs classified the tapenade in Heading 2005.

On the NAFTA front, once CBP determined the correct classification to be in Heading 2005, the applicable rule of origin requires that the non-originating green olives make a change from another tariff heading. Unfortunately, the olives are also classifiable in Heading 2005. That is not a qualifying shift and the goods are non-NAFTA originating. Tasty, but non-originating.