In these cases, Customs is following the letter of the law in

preventing more than one article from being imported bearing the

restricted trademark. It is only the trademark which Customs is

interested in protecting. If the importer of the articles should

obliterate or remove the trademark from the items he is carrying,

Customs inspectors would have no objections to allowing them into the

country.

The trademark prohibitions sometimes create unique problems. One of

these developed when a Mexican cattle raiser shipped a herd of cattle

to the Mexican border and was preparing to bring them into the United

States at Nogales, Arizona. Before the cattle could cross the border

an American cattle raiser rushed to Nogales and demanded that Customs

halt the importation of the Mexican cattle. He argued that he was the

owner of the cattle brand seared into the hides of the Mexican cattle

and that any importation bearing this brand would be a violation of the

trademark laws.

An investigation by Customs officers revealed that the American cattle

owner was entirely correct. By chance, the Mexican cattle raiser

had the same cattle brand as the American rancher. The American’s

cattle brand was registered with the Customs Bureau, and his cattle

brand was entitled to the same protection given to the trademarks of

manufacturers. Eventually, the protesting American and the baffled

Mexican got together and the American gave his consent for the

importation of the cattle.

One section of the trademark law prohibits the importation of any

articles which are marked in a manner to indicate a false country of

origin. It also bans imports which are marked with false descriptions.

To enforce this section of the law, Customs officers must police

millions of imports to weed out the products of foreign manufacturers

who engage in some shady and sharp practices.

In recent months there arrived from Japan a large shipment of boys’

baseball bats which were boldly marked with large letters burned into

the wood, “American Model.” At the end of the bat in extremely small

letters was stamped the word “Japan.” The Customs Service felt that

the purchaser of these bats could only assume, by looking at them and

seeing “American Model” in large letters, that they had been made in

the United States. It ruled that before the bats could be entered, the

word “Japan” would have to be stamped onto the bats in close proximity

to the words “American Model,” to remove the taint of deception.

Another manufacturer shipped into the country flatware made of iron

with a chrome plating. It was marked with the word “stainless,”

implying that it was stainless steel. The courts and the Federal

Trade Commission have held that the world “stainless,” when used in

describing manufactured articles, has a very specific meaning: that the

product has a great deal of resistance to normal corrosive elements

and to wear and tear that other metals normally do not have. And to

describe an article as stainless steel, it must be an alloy of steel

mixed with chromium in approved percentages.

To protect the manufacturers of stainless steel products in this

country, the Customs Bureau instituted a campaign to halt such sharp

practices and to educate foreign manufacturers to the fact that they

cannot mark products with the word “stainless” unless they meet the

very severe test required for the use of this word. The shipment of

cast-iron flatware was refused entry, and inspectors were alerted to

guard against any such shenanigans in the future.

21

THE MIDDLE MEN

Mr. and Mrs. John Smith of Lima, Ohio, were strolling through the

streets in Florence, Italy, enjoying their first European vacation,

when Mrs. Smith noticed a beautiful, hand-blown glass bowl in the

window of a small shop.

“John!” she exclaimed. “There is the bowl I’ve been looking for. It

would be perfect for our Christmas eggnog parties. Let’s go in and

price it.”

They stepped inside the shop and a clerk brought the bowl from the

window to a table where Mr. and Mrs. Smith could examine it more

closely. It was a lovely piece of glass and obviously the work of a

fine Venetian craftsmen. After admiring the delicate etchings on the

glass, Mrs. Smith asked, “How much is it?”

The clerk said the bowl was one of the best pieces in the house and

that it was priced at $75.

“My goodness,” Mrs. Smith exclaimed. “That bowl would cost double the

price at home. It’s a good buy.”

Mr. Smith said, “But how will we ever get it home? We can’t lug it all

over Europe with us. We would be certain to break it.”

The clerk interrupted, saying, “Pardon me. You don’t have to worry

about getting the bowl to your home. We will take care of everything

for you--the packing and the shipping. And we will insure it against

breakage. We ship hundreds of purchases every year for American

visitors.”

Mr. Smith asked, “How much do you charge for that service?”

The clerk shrugged. “There is no charge for our service, sir,” he said.

“There will be a small shipping charge which you can pay on receipt

of the package, but as for the trouble of packaging and handling the

shipment from here, that is merely a part of the service we give our

customers.”

“We won’t be back home for another three weeks,” Mrs. Smith said.

“What will happen if the bowl arrives before we reach home?”

“You need not worry about that,” the clerk said. “I’ll hold the bowl

for several days and then ship it so that it will not arrive until

after you have reached home.”

“Well, that seems simple enough,” Mr. Smith said. “As long as you can

handle this for us, then we’ll buy it.” He pulled out his wallet and

paid for the bowl. Then he carefully wrote out his home address in

Lima, Ohio.

“Don’t worry about a thing,” the clerk said, smiling. “The bowl will

arrive soon after you get home.”

As the Smiths left the shop, Mrs. Smith said to her husband, “Well, the

Italians certainly do make it easy for the Americans to buy something

and send it home. I had no idea there would be so little red tape to

sending a purchase home.”

A month later Mrs. Smith was at home when the telephone rang. It was

a long-distance call from New York. A strange man--someone she had

never heard of--asked if she had ordered a glass bowl from a shop in

Florence, Italy. He explained that he was a Customs broker, the bowl

had been consigned to him, and he was prepared to clear the package and

forward the shipment if she authorized him to do so. He explained there

would be a nominal fee for his services in getting the package released

from Customs and forwarded to the Smiths in Lima.

Mrs. Smith was so flustered she told the caller she would have her

husband get in touch with him. What was this strange man doing with her

bowl? The clerk in Florence had said he would take care of everything,

and now this broker was saying something about having legal title to

the shipment and that she would have to pay a fee to get her bowl

shipped to her. He had explained that she could come to New York and

arrange personally for the Customs clearance if she wished to do so.

Mrs. Smith telephoned her husband at his office and told him about the

call from the broker in New York. She gave her husband the man’s name

and his telephone number in New York.

And then Mr. Smith exploded with anger. “It’s a gyp deal of some sort,”

he said. “I am going to call the nearest Customs office and see what

this is all about. We didn’t tell that clerk to send the package to

anyone in New York. I don’t know how he got into this picture. There’s

something funny going on and I’m going to find what it’s all about.”

Within a short time, Mr. Smith learned--by checking with a Customs

officer--that he was not being gypped. The broker in New York was a

legitimate broker, licensed by the Federal government to act as a

clearing agent for merchandise arriving in the port of New York. The

call that had been made to Mrs. Smith was a routine call, because the

package containing the bowl had been consigned to the broker in routine

fashion either by the shipper in Florence or by the carrier which

brought the package into the port of New York.

Mr. Smith asked why it was that Customs in New York could not forward

the bowl directly to him without going through a broker. That seemed

the easy way to handle the shipment without all this red tape and the

payment of a fee to some stranger whose name he had never heard before

this day. Mr. Smith declared heatedly that he didn’t have time to go

running off to New York for a $75 glass bowl. As a matter of fact the

bowl wasn’t worth all that trouble and expense. He and his wife wanted

the bowl and they wanted it as quickly as possible.

The Customs officer explained that unless Mr. Smith or his wife went to

the port of entry to clear the shipment with Customs--or unless they

authorized the broker to act as their agent--the bowl would be held by

Customs for five days. Then if it were not claimed, it would be sent

to a warehouse. It would remain in the warehouse for one year, and if

it had not been claimed within that period, then it would be sold at

auction along with other unclaimed packages. The officer explained

further that Customs was not authorized by law to act as the forwarding

agent for anyone--except in cases where a shipment valued at less than

$250 was received by mail from an overseas point.

“Now, if you had shipped the bowl by mail,” the Customs officer said,

“it would have been delivered to your post office and you could have

obtained its release with no difficulty at all.”

Smith retorted, “This is a fine time to tell me I should have shipped

by mail. All I can say is it’s a hell of a way to run a railroad.” He

slammed down the phone, cursing Customs and all of the government’s red

tape. Then, reluctantly and angrily, he called the strange broker in

New York and authorized him to clear the glass bowl. Thus the day was

ruined for Mr. and Mrs. John Smith of Lima, Ohio.

The story of Mr. and Mrs. Smith is not unusual. Similar cases occur

daily throughout the United States as returning travellers discover

that they could have saved themselves worry, time, and money by

familiarizing themselves with the Customs procedures governing

the importation of foreign purchases into the United States. Had

Mr. and Mrs. Smith taken the time to read a few relatively simple

instructions--available to travellers in pamphlet form--they would not

have gotten into the difficulty they did.

In the first place, they would not have accepted the glib assurance of

the Florence clerk that he would take care of everything. Instead, they

would have instructed the clerk to mail the glass bowl by parcel post,

marked as a “tourist purchase.” When the package arrived in New York,

the post office would have turned it over to Customs in routine fashion

for examination. An examiner would have verified the contents and its

value and then returned the package to the post office to be forwarded

directly to the Smiths in their home town. If any duty were due, it

could have been paid to the postmaster after filling out a simple entry

form. No broker. No delay. No red tape.

But this is what happened to the Smith’s glass bowl after it was

purchased in Florence: the clerk turned the package over to a

forwarding agent with no special instructions. The agent routinely

consigned the shipment to a broker in New York with whom he had been

doing business for years. The bill of lading was made out to the New

York broker, which meant that when the package arrived in New York, the

broker had legal title to the glass bowl because it was consigned to

him.

What few travellers realize is that there is no automatic movement of

merchandise arriving by ship from overseas. Someone has to be on hand

to clear each shipment with Customs and pay any duties that might be

due. Someone must see to it that the merchandise is moved from the

piers to its destination. And this is usually the job of the broker, a

point which many people do not understand and which causes considerable

difficulty.

The broker is the expediter of the multi-billion-dollar flow of

merchandise through the ports of entry in the United States. He is the

legal representative of his client in dealing with Customs problems.

The Customs Service is not interested in merchandise until it arrives

within the limits of a port of entry to be unloaded. At this point

the merchandise legally becomes an import. And the merchandise passes

through Customs under two types of general entries. One is called the

“consumption entry” and the other is known as a “warehouse entry.”

Most imports arrive and are passed through Customs under the

consumption entry, which permits the importer to pay the duties, obtain

a release, and get immediate possession of all of his merchandise.

When merchandise is brought into the country under a warehouse entry,

the major part of the merchandise is sent to a Customs bonded warehouse

for storage. No duties are deposited when the papers are filed except

for that portion of the merchandise which is to be taken immediately

by the importer. In other words, the importer is permitted to place

his goods in storage without payment of duties and then is permitted

the privilege of making partial withdrawals from the warehouse, paying

duties on whatever he draws for consumption.

There is a continual movement of merchandise from one bonded warehouse

to another. This is particularly true in movements of liquor from one

part of the country to another. Liquors may move across the country

and may be in six or a dozen different bonded warehouses before they

are withdrawn for consumption and taxes are paid. This system permits

merchants to move their merchandise freely to meet shifting consumer

demands.

The normal period for bonded storage is three years, but this period

may be extended. If no extension is granted and the goods still remain

in a bonded warehouse beyond the three-year period, they are considered

unclaimed and abandoned to the government. The government then puts the

merchandise up for public auction.

* * * * *

A point of constant friction in the field of imports is the law which

requires that imports shall be marked “legibly and conspicuously” with

the name of the country of origin. It has been the Customs Bureau’s

position that if the marking can be reasonably expected to remain on

the article until it reaches the ultimate purchaser, then that is all

that the laws requires. But there are many exporters and importers who

disagree with the Customs interpretation of the law.

As one Customs veteran explained: “The domestic people, of course,

would like to have great big red letters 40 feet high on a 20-foot

article spelling out the name of the country of origin. Of course, it

frequently happens that the importer would like to have this name about

as small as the Lord’s Prayer on the point of a pin.

“The markings from some countries increase the value of the article.

Chinaware from England, for example. The English are very happy to put

their marking under the glaze, where it will remain. There are other

countries that are just as happy to put this identification on by paper

sticker, which may come off in the rain. So we always are in the middle

in the argument over markings on imports.”

The purpose of the law, of course, is to inform the ultimate buyer of

the country from which the merchandise came. Normally the ultimate

purchaser is considered to be the man who buys it across the

counter--the last person to receive the article in the condition in

which it was imported.

A great deal of merchandise is permitted into the country under what

is known as the “informal entry procedure.” The informal entry is used

where the value of a shipment does not exceed $250. The entry was

devised for the benefit particularly of persons passing across the

borders of the United States from Canada and Mexico.

In such border crossings, there is no formal appraisement. The Customs

officers on duty write up the entries, take a look at the merchandise

and decide themselves whether the value is correct. Then the duty is

paid on the spot and the merchandise is released.

This informal entry procedure is also used at the airfields to expedite

shipments of merchandise by air. It is used in the clearing of baggage

through Customs when travellers arrive from overseas, and in the

clearance of non-commercial shipments which include personal and

household effects.

* * * * *

In the vast majority of importations, the broker plays an important

part. The broker may be an individual, a partnership, corporation, or

association. In any case, those acting as brokers must be licensed

by the Customs Bureau, meet certain standards, and submit to Federal

regulation of their operations.

Applicants for individual broker’s licenses must undergo an examination

at the headquarters port in the Customs district in which the broker

intends to operate. The purpose of this examination is to determine

the applicants knowledge of Customs laws and procedure and his fitness

to render a service to importers and exporters. This knowledge must

necessarily be quite broad in scope, and a grade of 75 per cent is

required for passing.

However, those applying for a broker’s license as a corporation,

partnership, or association do not take an examination. Their

applications are forwarded by the Collector to the Supervising Customs

Agent, who conducts an investigation and then makes a report and

recommendation. The agents verify the correctness of the statements

made in the applications and the qualifications of the person or

persons who will actually handle the customs business. The government

requires that each broker keep current records reflecting his financial

transactions as a broker, and these records must be available for

government inspection at any time.

The Customs Service has no part in fixing the fees charged by customs

brokers for their services. However, if a complaint is made against

an individual broker or a brokerage house, then the complaint is

investigated by Customs Service agents and if the fees charged by the

broker are found to be excessive or “unconscionable,” then action

is taken by the Service to correct the situation. In cases where

investigation discloses irregularities, the Secretary of the Treasury

has the authority to suspend or revoke the license of a broker. Such

action is taken, however, only after a quasi-judicial hearing in which

the accused broker has the right of cross-examining witnesses. If the

decision goes against him, then the broker may, if he wishes, appeal

his case to a U.S. Circuit Court of Appeals.

The broker plays a prominent role as the middle man in the

import-export business, but this does not mean that an importer must

necessarily seek the services of a broker in bringing merchandise into

the country. Under the law, any citizen may act as his own agent in

clearing his own imports through Customs and no license is required.

* * * * *

One of the ancient devices to aid the importer is known as the

“drawback” privilege. “Drawback” is a word which is found in customs

language through the centuries, and it is another word for “refund.”

In brief, the drawback works in this fashion: an importer brings

merchandise into the United States to be used in the manufacture of

certain articles. At the time of importation, he pays the normal duty.

After the articles are manufactured, they are exported to another

country. It is then that the manufacturer is entitled to a refund on

that part of the imports which he shipped back out of the country.

The drawback plays an important part in the manufacturing operations of

all nations. It enables manufacturers to meet competition in the export

market. For example, an automobile manufacturer in the United States

imports a large amount of steel to be used in the manufacturing of

his automobiles. Ten per cent of this steel is used in cars which are

shipped overseas. Thus the manufacturer is entitled to a drawback or

refund of 10 per cent of the duties he paid on the imported steel.

Congress has liberalized the drawback provisions so that a manufacturer

does not necessarily have to use the imported materials in his exports

in order to qualify for a refund of duties. An automobile manufacturer

may export automobiles made entirely of domestic steel. But if the

steel he used in the exports is of “the same kind and quality” as the

imported steel, then he is allowed to obtain a refund on that quantity

of steel used in the exported automobiles.

Virtually every manufacturer who is in the export business takes

advantage of this drawback material, and its value to the manufacturing

industry in the United States is realized when it is noted that the

refunds paid in recent years have been running about $9 million

annually.

Oddly enough, there are some American manufacturers who do not even

know that they have the privilege of a duty refund. They have been

importing materials for years, paying duties, and then exporting the

finished products without making any claim for a refund of duties on

the materials shipped back overseas. One midwestern manufacturer in

recent years discovered that he had paid the government in excess of

$1,500,000 in duties--and he was entitled to a refund of the entire

amount.

This situation developed as a result of the Korean War. Because of the

tremendous devastation in Korea, the U.S. government entered into a

program of rebuilding the Korean economy. The midwestern manufacturer

obtained orders from the government to supply a quantity of heavy

machinery and equipment, the contract running into many millions of

dollars.

In that period during and after the Korean War, there was a shortage of

domestic steel. For that reason the manufacturer imported virtually all

the steel used in the machinery manufactured for the Korean government.

When he discovered that he was due a refund of duties, he obtained all

his records over the past years, and submitted them to the government.

These records were verified and the manufacturer was paid more than

$1,500,000.

* * * * *

The maze of tariff laws which has grown up over the years has developed

some peculiar situations, and one of the oddest of these involves

the Virgin Islands, the insular possession which has attracted many

manufacturers in recent years.

One reason that the Virgin Islands is proving attractive to new

industries is that under the present laws, manufacturers operating in

the Virgin Islands pay an import duty of only 6 per cent on merchandise

brought into the Islands for use in manufacturing. Their finished

products are permitted into the mainland free of any duty--provided the

foreign materials used are less than 50 per cent of the total value.

This quirk in the law has created extreme problems for some American

industries, such as the watch industry. For example, a manufacturer

in the Virgin Islands will import various watch parts from France

or Japan and pay only a 6 per cent duty on these imports. The parts

will be assembled into a finished watch, and if the watch meets the

requirements fixed by law, then it enters the United States free. In

other words, the manufacturer in the Virgin Islands pays a 6 per cent

duty on watch parts on which the American manufacturer is required to

pay a 50 per cent duty. And this variance extends to other fields of

manufacturing.

There has been, in recent years, a growing opposition to the duty

differential which is permitted manufacturers in the Virgin Islands.

Discussing this situation before Congress in September, 1960,

Representative Eugene J. McCarthy of Minnesota voiced the views of

many when he said: “In recent months there has been a growing tendency

for companies to establish themselves in U.S. insular possessions on

a basis that results in their escaping the proper payment of duty on

products they wish to import into the United States. Section 301

of the Tariff Act of 1930, as amended, was intended to promote the

development of employment opportunities in our insular possessions....

(Instead, it) has become an avenue for the avoidance of very

substantial amounts of duty....”

The McCarthy argument is disputed by the Virgin Island manufacturing

interests, but nevertheless the situation underscores the complexity of

the laws by which the Customs Bureau is bound.

* * * * *

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