Where do you find the law?

Lawrence Friedman (Barnes/Richardson, Chicago) discusses an interesting case in the first person on his Customs Law blog, "CAFC Rules on Soybean Residue".  The Court of Appeals for the Federal Circuit had to interpret the Harmonized Tariff Schedule (HTSUS), a Federal statute that describes what import tariffs are paid for what classes of stuff, in Archer Daniels Midland v. U.S., No. 2008-1342, March 26, 2009.  (Mr. Friedman argued the case for the plaintiff.)  The problem was that the "Explanatory Notes" for the particular class that the Government wished to apply appeared to be inconsistent with the statutory language.  Given the ambiguity, the Court of Appeals set aside the Notes and interpreted the statute without them. 

Mr. Friedman has two important points that apply to regulation in general.

The tariff must be interpreted in a way that maximizes the predictability and uniformity of classifications. I think that if Jane and Joe Importer are expected to be able to classify merchandise in the ordinary course of business, then the primary focus must be on the plain language of the HTSUS. Any interpretation that moves limitations or meaning into the tariff from the Explanatory Notes should be disfavored in the absence of a showing of ambiguity in the HTSUS.

I think this is particularly true because there is an inherent lack of transparency in that the Explanatory Notes are not publicly available without a paid subscription. If the Explanatory Notes are even remotely required for legal compliance, they should be made available to the public free of charge. [Are you with me? Do we storm Brussels with pitchforks and torches?] Reasonable care should not require an outlay of money just to know the rules.

Amen.  EMM