Courts Rule on Challenge to CHB Exam Answer, Artichokes in Solution
CAFC denies challenge to CHB exam answer. In Michael J. Kenny v. Secretary of the Treasury & U.S., the Court of Appeals for the Federal Circuit (CAFC) affirmed the Court of International Trade's (CIT's) decision to uphold the Secretary of the Treasury's denial of credit to Michael J. Kenny for Question 32 on the October 2001 Customs Broker Licensure Examination (CHB exam).
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Question 32 concerned the classification of certain beer and Kenny claimed that the question was ambiguous for failing to state the temperature at which the "alcoholic strength by volume of 0.4%" was measured. However, the CAFC stated its review of the record revealed no ambiguity in this question with regard to the phrase "alcoholic strength by volume" as Chapter 22, Note 2 expressly states that it shall be determined at 20 degrees Celsius. (CAFC Court No. 04-1519, decided on 03/18/05, available at http://www.fedcir.gov/opinions/04-1519.pdf)
Artichokes in 'disagreeable tasting' solution are fit for immediate consumption. In Reser's Fine Foods, Inc. (dba Sidari's Italian Foods) v. U.S., the CIT ruled in favor of Customs' classification of quartered artichoke hearts (artichokes) in a solution consisting of water and acetic acid (0.1%), salt (1.2%) and citric acid (0.6%) packaged in No. 10 cans as "artichokes prepared or preserved otherwise than by vinegar or acetic acid, not frozen" under HTS 2005.90.80 (1998, 15.8%). The CIT noted that after importation, the artichokes are removed from their shipping solution, rinsed with water, and mixed with other items to make marinated artichoke salad.
Reser's had argued that the artichokes were classifiable as "other vegetables provisionally preservedbut unsuitable in that state for immediate consumption" under HTS 0711.90.60 (1998, 9.1%). Reser's contended that because the artichokes have a disagreeable taste due to the solution in which they are preserved, they are unsuitable for immediate consumption.
CIT ruled that the artichokes are 'fit' for immediate consumption as imported, as they are edible, even if they are not pleasant to eat prior to rinsing with water, adding that it can hardly be said that similar merchandise bought at retail is unfit to be consumed immediately. (Slip Op. 05-47, dated 04/12/05, available at http://www.cit.uscourts.gov/slip_op/Slip_op05/05-47.pdf)