Givens & Johnston has filed a petition for Writ of Certiorari with the United States Supreme Court seeking review of a tariff classification decision in the Court of Appeals for the Federal Circuit (Well Luck v. United States, 887 F.3d 1106).

We are contesting the panel’s reliance on HTSUS General Rule of Interpretation (GRI) 3a to classify roasted & flavored sunflower seeds in a bag. The panel first held that the product was prima facie classifiable in both Heading 1206, as sunflower seeds, and in Heading 2008, as other roasted & flavored seeds. Thus, as the descriptive portions of both headings describe the goods, a tie breaker is needed. We believe that the controlling tie breaker is a term of limitation in the Heading language of 2008, that the CAFC ignored without comment. Heading 2008 is limited to goods “not elsewhere specified or included” (NESOI). Thus, if sunflower seeds are described (i.e., “included”) in 1206 and in 2008, pursuant to GRI 1, the NESOI clause in 2008 negates it as an option and classification under 1206 is required. Therefore, as the tie is broken pursuant to GRI 1, no other GRIs come into play.

Our writ is available here.

Givens & Johnston believes that the CAFC’s decision potentially affects any tariff classification where an NESOI provision is a candidate. In 2017, about $166.6 billion worth of imported merchandise was classified in NESOI provisions. Unless reversed by the United States Supreme Court, some large amount of $2.1 trillion worth of imported merchandise classified under non-NESOI provisions may be subject to classification under these NESOI provisions.

We invite you and your clients who may have an interest  in this matter to file an Amicus Curiae brief with the United States Supreme Court in support of Well Luck’s Writ.