Customs examiners are not just being arbitrary and ornery when they

make these classifications in defiance of the botanist and the

dictionary. The contradictions came about because the U.S. Court of

Customs and the U.S. Court of Customs Appeals have made these rulings

for the purpose of identifying imports so that a proper rate of duty

may be paid upon them.

The courts have said over and over that in the language of commerce and

in the everyday language of the streets, a whale must be considered to

be a fish because it lives in the sea. Also, they have said the tomato

is a vegetable because it is sold and eaten as a vegetable. And rhubarb

in the legal world has become a fruit because it is bought and sold as

a fruit.

In most cases, the appraisers have no difficulty in establishing the

proper rate of duty to be paid on an import because the rate is fixed

by law and the import is easily identified. But there are a great many

imports not identified in any of the tariff acts or the amendments

adopted by Congress, a lack which often creates difficulties, as it did

when one importer brought in a shipment of Chinese mah-jongg sets.

The dominolike pieces used in playing the game were made of bone and

bamboo. The importer and the government agreed that the material of

chief value in the mah-jongg pieces was bone. The importer insisted

that the duty should be 20 per cent of the value because the games were

“manufactures of bone.” However the Collector classified these sets as

“dominoes” and set the duty at 50 per cent. He ruled that the mah-jongg

pieces came under the paragraph 341 of the Tariff Act of 1913 which

provided for a duty of that rate on “dice, dominoes, draughts, chess

men, and billiard, pool, bagatelle balls, and poker chips of ivory,

bone or other material.”

This case also found its way into the Customs Court. The government

attorneys argued that the mah-jongg pieces should be classed as

“dominoes by similitude” even though they were not specifically listed

under the acts passed by Congress.

The importer argued through his attorneys that the mah-jongg sets

were not specifically named by Congress in any of the classifications

established in the various acts and therefore the duty should be

applied on the “component material of chief value.”

In this case the ruling went against the government. The court held

that the mah-jongg sets were properly classifiable at 20 per cent as

manufactures in which bone was the “component material of chief value.”

The appraisers’ staffs make millions of classifications each year on

imported items, and there is remarkably little dispute over their

decisions. Out of these millions, no more than 700 are disputed and

contested in the courts annually.

Sometimes a seemingly obscure and innocuous ruling on a classification

will blow up a storm across the country. Such a case developed when an

importer brought in from Europe do-it-yourself kits containing parts of

a miniature electric train and engine to be assembled by the purchaser.

The locomotives, freight cars, cabooses, passenger cars, track, and

other equipment were precision-made scale models of larger railroad

equipment. They were all made to a standard “HO” scale of 3.5

millimeters to one foot. The trains were designed to run at the scale

speed, which meant that at maximum speed they would travel 60 feet a

minute. At that speed, they would simulate the operation of a full-size

train.

All of the equipment was manufactured according to the strictest

standards set up by the National Model Railroad Association. This

Association has been described as “an organization of adult model

railroad hobbyists founded in 1935 to make and promulgate standards

for wheels, flanges, rails, switches, and other working parts of

model railroads, with the purpose of achieving interchangeability of

equipment from different manufacturers.”

The examiner who inspected the imported miniatures classified them as

“toys”--and as such subject to duty of 50 per cent of their value. In

the Tariff Act of 1930, Congress had described a toy as “an article

chiefly used for the amusement of children, whether or not also

suitable for physical exercise or for mental development.”

The ruling brought a pained cry from miniature railroad hobbyists

across the country.

Toys, indeed! The hobbyists were outraged that this import should be

put in the same category with playthings and that anyone should have

the affrontery to think that such railroad equipment--even though

Lilliputian in size--could be put together, and operated, by a mere

child.

When the Collector at the Port of New York supported the ruling of the

appraiser that the miniature railroad equipment should be classed as

toys, the ruling was appealed to the U.S. Court of Customs. And when

the case came to trial the importer had behind him ranks of witnesses

from all walks of life ready to dispute the government’s description

of the equipment: dentists, technical consultants, salesmen in various

lines of business, doctors, lawyers, editors, publishers, and writers.

One after another, the witnesses took the witness chair to deride

this nonsense that the miniature trains were made “for the amusement

of children.” They gave technical testimony on the operation of these

miniatures to prove that no child could be trusted with them and in

fact could not operate them.

To prove this point one witness testified, “It requires a knowledge of

electricity and requires a thorough understanding of how the trains

operate. For example, our accessories all operate on alternating

current; our trains run on direct current. It is necessary to know the

two types of current which our power-packs provide to connect up the

wires correctly. In the case of the alternating current, they have two

leads; one would be a common terminal, connecting all the different

accessories and switches, and another would be a specific one which

would go to each individual switch.... The locomotive can also be

operated from an overhead wire with pantographs they have located on

the roof. This makes it possible to operate two trains on the same

track under independent control. To do this, it is necessary to set

up a catenary system, which is an overhead wire system, such as the

Pennsylvania and New Haven Railroad use in this area. This, naturally,

requires wiring.”

The importer insisted that the miniatures should not be classified as

toys but should be classified as electrical equipment subject to a

lower rate of duty.

Under this barrage of expert testimony from adults who play with small

trains, the court overruled the Collector. The court held that the

model railroad sets were not “toys,” because they were used chiefly by

adults or by grown-up children and that they “do not come within the

legal meaning of the word toy.”

In years past, Customs officials tried to establish a detailed

classification system in which the examiner could refer to a given page

in a book and quickly come up with the answer as to classification and

duty of any item. But the system broke down under the weight of a vast

number of new products arriving on the market. Discussing this effort

a Customs Bureau official said: “On tariff classification, a number

of people, who call up and ask for rates, think there is a detailed,

logical breakdown and that we just thumb through a book and come up

with an answer. To someone who hasn’t worked with classification, that

seems like the way to do it. That is the way the old-timers used to

try to classify. They used to try to set up categories with a place

for everything, and everything in its place. But every time anyone set

up one of these classification systems, along would come some new item

which didn’t fit anywhere. So the present tendency in classification

systems is to set up a specific category for the more important items,

and then to set up what might be called a basket category to catch

everything else.”

The impossibility of achieving an easy index for classifying imports

was illustrated in recent years when a machine arrived from Europe

described by the importer as “printing machinery.”

The machine had the equivalent of a type font but, instead of type,

the font contained pictures of type on a transparent plate. The

type-setter, using a keyboard similar to that on a linotype machine,

punched out sentences on a roll of perforated tape. Then the tape was

fed into the machine, and as each perforation passed an electronic

control, a transparent plate bearing the image of a letter dropped into

place to be photographed by a high-speed camera. In this way a full

sentence was formed with photographed characters. This process was

continued, letter by letter, until a column of “type” was set up on a

film. Then the film was developed and, by a photoengraving process, was

reproduced on a metal plate ready for printing on paper. In all the

process there was no actual type used.

Customs was baffled by this one. Was the machine to be classed as

photographic equipment, printing equipment or as typesetting machinery?

It did not set type. It did not actually print. And it was more than

a mere camera. The Bureau decided this was a case in which the court

should hear all the arguments and make a decision--and a decision has

yet to be made.

When Congress passed the 1930 Tariff Act there were roughly 700

categories of imports. Since that time--with the adoption of the

Reciprocal Trade Agreement Act--the number of categories has been

increased by the thousands. Most of the increases were in categories

created to help foreign countries expand their trade in the United

States. The duty on a comparatively few imports has been revised

upward as a measure of protecting some of the American industries from

lower-cost foreign competition. In the vast majority of cases the

revisions have been downward, following the trend toward removing

tariff barriers by international agreement.

In arriving at the dutiable value of an import, Customs officials are

bound by the Tariff Act, which lays down the rules under which they

calculate the true value of an article. This system of appraisal is

complex and varies from category to category. Congress has proclaimed

that duty on certain items shall be fixed on the foreign value--that

is, the selling price in the country of production. Some items are

appraised on their export value--the price which the exporter pays

for them. Others are valued on their United States value, which means

the price at which the exporter sells them in the United States. Some

appraisals are based on cost of production.

Duties based on the American selling price are designed solely to

protect certain American industries from foreign competition. Among

the leading industries receiving this protection are the rubber

and coal-tar dye industries. For example, an importer may be able

to purchase a pound of coal-tar dye in Switzerland for $2. But if

that dye is competitive with a dye of a similar shade produced in

the United States, then the import will be appraised at $5 a pound,

notwithstanding the fact that the importer paid the Swiss manufacturer

only $2 a pound for the product.

However, most appraisements are made on the basis of export value, the

price charged by the manufacturer or the seller in the foreign country.

The imports brought to the Appraiser’s Stores for examination form a

cross section of the commercial treasures of the world and they are

unbelievably varied. The examiners--trained by years of study and

on-the-job experience--have become experts in appraising the quality

and the value of a staggering number of imports. Whether the import

is wool, cotton, silk, sugar, hog bristles, furs, diamonds, ore,

chemicals, exotic foods, or an antique table, there is someone with a

background of knowledge on the subject.

One of the largest single sources of Customs revenue continues over

the years to be duties collected on raw wool which has not yet

been processed for manufacturing. The wool examiner is one of the

most highly trained of the specialists within the Bureau. He must

be--because the Tariff Act of 1930 requires him to be able to identify

by type thirty different wools from all parts of the world, in

addition to being able to determine whether a shipment of hair is from

the Angora rabbit, the Cashmere goat, the Bactrian camel of Central

Asia, or the llama and vicuna of South America.

The Bureau has found that the only way to obtain these specialists

is to recruit young men who are interested in this field of work,

and to train them under the guidance of experienced examiners. The

recruits must spend hours with books outside their regular work hours,

in addition to attending technical training schools and visiting

manufacturing and processing plants throughout the United States.

As far as the Tariff Act is concerned, the term “wool” includes not

only the fleece from sheep, but the fiber from other animals. This is

why the examiner must be able to distinguish Cashmere goat hair from

the hair of the Angora goat raised in the southwestern part of the

United States; and to learn the subtle differences between two grades

of coarse hairs as well as the variations between the finest of fleeces.

Wool is graded by numbers, starting with 36 for the coarsest and moving

through the 70s to the very finest. A miscalculation in the grading can

deprive the Treasury of revenues--or cause an injustice to an importer.

For years, examinations of wool were conducted on the piers by taking

samples from the ends of the highly compressed bales, which were

covered with burlap and bound by steel bands. The examiner had no way

of knowing--except to have a bale of fleece opened--whether or not the

outer fleece concealed a higher grade of wool in the center of the

bale. In some isolated cases, examiners found that a coarse grade of

carpet wool concealed extremely high-grade wool. Contraband such as

narcotics also was found hidden inside suspect bales.

Perhaps of even greater importance, the examiner had no reliable method

of determining the amount of dirt, vegetable fiber, grease and other

foreign matter contained throughout the bale--and the duties were

supposed to be assessed only on the “clean content” of the wool.

This haphazard method of examination drew the fire of Congress in 1930.

To correct the situation, the Customs Bureau established the post of

Wool Administrator in New York City. It was his job to coordinate

the examinations throughout the country and to establish more uniform

practices. Daniel J. Kelly was named Administrator, with three

assistants--Morris Shuster in Philadelphia, Al Kelleher in Boston and

John Walker in New York.

The Bureau assigned to Chief Chemist Louis Tanner of the Boston

laboratory the job of finding a method to determine the “clean content”

of wool shipments. He developed a special boring tool which enabled

examiners to take samples, or cores, of wool from inside the bales,

and to judge the uniformity of the fiber in an entire bale without

disturbing the bindings. This method proved so simple and effective

that it has been adopted by the commercial trade and by government

agencies in other countries throughout the world.

Imports of all kinds and types reach the Appraiser’s Stores in this

manner: When merchandise is ready for export from a foreign country

to the United States, the exporter prepares a special customs invoice

describing the merchandise and giving its value. This invoice is sent

to the American importer. When the importer is notified that the

merchandise has arrived at a port of entry, he turns over the invoice

to his customs broker. The broker calculates the estimated rate of

duty, then proceeds to the Customs House. There he makes what is called

a formal entry of the merchandise, filing the information he has

received from the exporter and paying the duty.

In the Collector’s office at the Customs House, the broker’s estimates

of value and duty are reviewed for any errors. Then the invoice is

transmitted to the appraiser’s office, where it is assigned to the

expert who will examine this particular merchandise.

The Collector notifies the Customs inspector at the pier that he is

to send a 10 per cent sampling of the imported merchandise to the

Appraiser’s Stores to be physically examined by the specialist in that

field. The specialist examines the samples of merchandise to see that

they are correctly identified by the importer. Then he determines

whether the broker’s estimates of value and duty are correct.

If the broker entered the merchandise at $100 a unit and the examiner

believes that the appraised value should be $125 a unit, then the

examiner makes the change. His report is then forwarded to the office

of the Collector for final action, and normally the Collector accepts

the examiner’s judgment.

The Collector then notifies the broker or the importer of the action

that has been taken. The importer and broker may accept the ruling or

they may take issue. If they disagree, they may appeal to the United

States Customs Court. If either the importer or the government is

dissatisfied with the lower court’s decision, an appeal may be taken to

the U.S. Court of Customs and Patent Appeals. Usually the decision of

the Appeals Court is accepted as being final, but either of the parties

may carry the appeal further, to the Supreme Court.

* * * * *

It seems odd that piracy should be a concern of Customs in the 1960s,

as it was in the days of Jean and Pierre Laffite. But piracy still

exists in modern dress and is a troublesome problem. The only practical

difference between the modern pirates and the cutlass-carrying

freebooters of the past is that the pirates’ methods have changed.

There was the case that might be called “The Pirates of Taiwan”--a case

which created an incident of international embarrassment between the

governments of the United States and Formosa (Taiwan) and a potential

threat to the U.S. book publishing industry.

The “pirates” of Taiwan were the owners of small printing shops who

engaged in the business of publishing--without the consent of the

authors or the original publishers--almost every book of any merit

printed in the English language.

With fantastically cheap labor, cheap paper, and a photo-offset

printing process, the publishers in Taiwan reproduced such extensive

works as the _Encyclopaedia Britannica_, dictionaries, sets of medical

and scientific works, volumes of the classics, standard reference

books, best-selling novels and popular non-fiction. The books were

carbon copies of the originals, even to the U.S. copyright numbers and

the phrase “Manufactured in the United States.” Nothing was changed in

the pirating process, not even the typographical errors. From a casual

examination, there was nothing to indicate that the books had not been

published in Philadelphia, Boston, or New York.

The pirating problem became acute in 1959 when the Chinese publishers

arranged contacts with sales agents in the United States, men

and women usually located on or near a campus of a university or

college. These agents solicited orders primarily from professors

and teachers, librarians, researchers, and students. A standard set

of the _Encyclopaedia Britannica_--normally costing about $400--was

offered for less than $50. The $35 _Columbia Encyclopedia_ was listed

at $7.13. _Gray’s Anatomy_, a standard work for all medical students

and normally costing $17.50, could be purchased for $2.50. Allen

Drury’s best-selling novel of political life in Washington, _Advise and

Consent_, cost $5.75 in American bookstores--but was advertised by the

Chinese publishers at $1.25.

In some instances, the Chinese publishers obtained lists of likely

customers and solicited them by mail. The prospects usually were

men, women and organizations with modest incomes who were forced to

operate on a very limited budget. And here they were being offered the

opportunity to obtain expensive volumes of literary works--which they

had long dreamed of owning--for only a fraction of the price being

charged throughout the United States.

The books were shipped from Taiwan in individual packages. Even when

the packages were opened for inspection by a Customs examiner, there

was nothing to arouse suspicion of any irregularity. The first hint

which Customs had of fraud was when a complaint was lodged in 1959

by the American Book Publishers Council and the American Textbook

Publishers Institute.

The book publishers appealed for help to the State Department, the

Customs Bureau, Congress and even to the White House. The sales of

pirated books in the United States had become a multi-million-dollar

business which threatened to destroy the American book market.

In theory, at least, the publishers could have protected themselves

from the sales of pirated books in the United States by registering

each title with the Customs Bureau and paying a fee of $75. The

registration would have banned any import of a similar title without

the publisher’s consent.

Such a procedure would have been prohibitive in its cost because each

title produced is regarded by law as a different product. A single

publisher might well have had to register as many as 2,000 titles

annually to obtain total protection--at a cost of more than $150,000 in

fees and incidental expenses. This cost would have been in addition to

the $300,000 paid to copyright the works, at $150 per title.

When Customs agents opened an investigation they discovered that in

the first half of February, 1960, sales of pirated books at Iowa

State University alone totalled more than $1,200. It was obvious that

American publishers and authors were literally being robbed of millions

of dollars. Not only were the books being mailed to the United States

in large quantities, but a great many sales were being made on Formosa

to military personnel, to students, and to tourists who could not pass

up such a bargain in literature.

Action was taken by Customs to halt the importation of the books

through seizure at the ports of entry. Then the U.S. Ambassador to

Nationalist China, Everett F. Drumright, took up the problem with

Foreign Minister S. K. Huang in Taipei, seeking a ban on the export of

the books.

The problem was not one presenting an easy solution because the laws

of Taiwan technically tolerated such piracy. Many members of Chiang

Kai-shek’s government were not entirely sympathetic to shutting off

this lucrative trade which brought dollars into the treasury. There

was the fact, too, that lack of any copyright agreement gave Chinese

students access to cheap editions of technical books and famous works

of literature.

However, an arrangement was worked out on the diplomatic level for a

ban on the wholesale export of pirated books from Taiwan. The American

publishers agreed to make available certain of their works to Chinese

students. This agreement brought a halt to much of the illicit traffic,

but the problem of pirated books continues to be troublesome.

Competition for world trade has also brought some sharp practices in

which foreign manufacturers copy American-made automobile parts, tools,

and other merchandise and then ship them into the United States. The

articles are identical in appearance to the American-made product

down to such small details as the American manufacturer’s registered

trademark. But the price--and quality--are far below the American

level.

The piracy in the field of trademarks is a continuing problem for

Customs. There are approximately 5,000 trademarks registered with the

Customs Bureau, including those registered by foreign firms. And each

manufacturer guards his trademark jealously.

Many foreign trademark owners, for the protection of their

representatives in this country, will not permit more than one of

their trademarked articles to be imported into the United States by a

tourist. Many tourists will go abroad and purchase an unusual bargain

in a camera, perfume or some other item. They are dismayed when they

return to this country to find that Customs will not permit them to

keep more than one of the articles.

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