Trade Court Rejects Appeal of 2 Questions on Customs Broker License Exam
The Court of International in a July 7 opinion upheld CBP's decision to deny Shuzhen Zhong a customs broker's license. Zhong, appearing pro se and seeking to get to a passing grade of 75% or higher on a customs broker license exam, appealed the answers to two questions. Judge Jane Restani ruled that CBP's decision to deny credit for both questions was backed by substantial evidence.
Zhong filed suit at CIT after two appeals of her final score to CBP failed to result in a passing grade. Zhong originally contested six questions, but that number dropped to two (see 2206170071). In the July opinion, Restani evaluated CBP's answers.
The first question asked how to classify glazed ceramic mosaic cubes on a mesh backing that measures approximately 1 centimeter wide by 1 centimeter long by 1 centimeter thick, with a water absorption coefficient by weight of 0.3%. CBP said that Harmonized Tariff Schedule subheading 6907.30.3000 is correct, while Zhong said that 6907.21.2000 is the right choice, arguing that answer was more detailed since choice D dropped the water absorption coefficient.
While heading 6907 explicitly covers the cubes in question, at the subheading level, 6907.21 "covers '[f]lags and paving, hearth or wall tiles, other than those of subheading 6907.30 and 6907.40' of a water absorption coefficient by weight not exceeding 0.5 percent." Restani said this subheading specifically excludes mosaic cubes and the like of the other mentioned subheadings, including 6907.40, which only covers finishing ceramics. "As a result, at the subheading level, the ceramic mosaic cube in question 32 is explicitly covered by 6907.30 and, thus, explicitly excluded from 6907.21," the judge said. Selecting Zhong's answer would require "ignoring the structure of the HTSUS," the court ruled.
The second contested question asked what to do when CBP finds during examination that a client's shipment of 1,000 handbags have a mark suspected of infringing a trademark associated with a well-known designer. "The designer’s mark is registered on the Principal Register of the U.S. Patent and Trademark Office and recorded with CBP. The suspect mark is not identical with or substantially indistinguishable from the registered and recorded mark; rather, CBP determines that it copies or simulates the registered and recorded mark and, consequently, detains the handbags. Which of the following options is available to the importer to obtain relief from detention within 30 days?"
CBP identified answer A as being the correct choice: "The importer may remove or obliterate the suspect marks from the handbags in such a manner that they are incapable of being reconstituted."
Zhong chose B, which says "The importer may label the merchandise with the following statement: 'This product is not a product authorized by the United States trademark owner for importation and is physically and materially different from the authorized product.'" The plaintiff said "copies" means the same thing as "identical," so the question is too unclear to have a perfect answer.
Restani ruled against Zhong, pointing out that the phrases for identical and copies are directly quoted from federal regulations. "Here, Customs intended to 'test[] the ability to differentiate between goods bearing counterfeit trademarks ... and goods bearing copying or simulating trademarks' and identify proper remedies," the opinion said. "While 'copy' might be synonymous with 'identical' in some contexts, this question clearly sought to have test takers distinguish between the applicable regulations and identify the proper remedy." Thus, CBP was right to deny Zhong credit, the court ruled.
(Shuzhen Zhong v. U.S., Slip Op. 22-78, CIT #22-00041, dated 07/07/22, Judge Jane Restani. Attorneys: Shuzhen Zhong appearing pro se; Luke Mathers for defendant U.S. government)