Macclenny Products v. United States

Slip Op. 14-
UNITED STATES COURT OF INTERNATIONAL TRADE
________________________________________________
MACCLENNY P RODUCTS, 	:
Plaintiff, 	:
v. 	: 	Court No. 05-00484
UNITED S TATES, 	:
Defendant. 	:
________________________________________________________________________________
[Granting Defendant’s Partial Motion to Dismiss for Lack of Jurisdiction; Granting Defendant’s
Partial Motion to Dismiss for Failure to State a Claim (or, alternatively, Motion for Judgment on the
Pleadings or for Summary Judgment); Granting Defendant’s Motion for Partial Summary Judgment
as to Certain Entries Eligible for Duty-Free Liquidation Pursuant to U.S.-Caribbean Basin Trade
Partnership Act; and Denying Defendant’s and Plaintiff’s Motions for Partial Summary Judgment
as to Method of Appraisement]
Dated: January 	2014
Jerry P. Siskin, Simons & Siskin, of South Amboy, New Jersey, argued for Plaintiff. With
him on the brief were Bernard J. Babb and Patrick C. Reed. Of counsel on the brief was Philip Yale
Simons.
Amy M. Rubin, Senior Trial Counsel, International Trade Field Office, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice, of New York, New York, argued for
Defendant. With her on the brief were Stuart F. Delery, Assistant Attorney General, Civil Division,
and Barbara S. Williams, Attorney in Charge, International Trade Field Office. Of counsel on the
brief was Michael Heydrich, Office of the Assistant Chief Counsel, International Trade Litigation,
Bureau of Customs and Border Protection, U.S. Department of Homeland Security, of New York,
New York.
OPINION
RIDGWAY, Judge:
In this action, plaintiff Macclenny Products challenges the decision of the United States
Customs Service1 denying Macclenny’s protests contesting the agency’s liquidation of entries of
1The U.S. Customs Service – formerly part of the U.S. Department of Treasury – is now part
of the U.S. Department of Homeland Security, and is commonly known as U.S. Customs and Border
22,
5
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“men’s suit-type jackets” imported from Nicaragua in 2000 and 2001. See generally First Amended
Complaint ¶¶ 3, 6, 8.2
Macclenny raises two claims. Macclenny first contends that Customs erred by appraising
the merchandise at issue for liquidation based on “transaction value,” because – according to
Macclenny – the price of the goods was influenced by the relationship between the importer-buyer
and the foreign manufacturer-seller. Macclenny asserts that the merchandise instead should have
been appraised on the basis of “deductive value.” First Amended Complaint ¶¶ 11-24. In addition,
Macclenny alleges that, to the extent that the subject merchandise was imported on or after October
2, 2000, the merchandise is entitled to duty-free treatment under the United States-Caribbean Basin
Trade Partnership Act (“CBTPA”), which extends trade benefits to certain countries in the
Caribbean region. Id. ¶¶ 25-29; 19 U.S.C. § 2703(b) (2000),3 implemented in U.S. Note 7(b)(i), Ch.
98, Subch. II, Harmonized Tariff Schedule of the United States (“HTSUS”) (2000).4
Also at issue in this action is the Government’s counterclaim for additional duties.
Specifically, the Government contends that, assuming that Customs’ use of transaction value is
sustained, certain costs that were not included in Customs’ liquidation of the merchandise should
Protection. See Bull v. United States, 479 F.3d 1365, 1368 n.1 (Fed. Cir. 2007). The agency is
referred to as “Customs” herein.
2Macclenny filed both public and confidential versions of its First Amended Complaint.
However, only the public version is cited herein.
3All citations to federal statutes are to the 2000 edition of the United States Code.
4All citations to the HTSUS herein are to the 2000 edition, as modified (in relevant part) by
implementation of the CBTPA. The 2001 edition is identical to the 2000 edition, as modified, in
all relevant respects.
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be added to the transaction value, and Customs should be awarded additional duties based on those
additional sums. Answer and Counterclaim ¶¶ 30-33.
Now pending before the Court are the parties’ dispositive cross-motions.5 With respect to
Macclenny’s CBTPA claim, the Government seeks dismissal for lack of subject matter jurisdiction
as to all entries at issue other than those covered by Protest No. 1803-04-100056. See Defendant’s
Memorandum in Support of Motion for Summary Judgment (“Def.’s Brief”) at 2, 9, 11-13.6 With
respect to Macclenny’s CBTPA claim for those entries covered by Protest No. 1803-04-100056, the
Government seeks dismissal for failure to state a claim upon which relief can be granted as to the
four entries that were made prior to October 2, 2000, the effective date of the CBTPA for goods
from Nicaragua – i.e., Entry Nos. WJP-0002399-9, WJP-0002416-1, WJP-0002429-4, and WJP-
0002440-1. See id. at 2 & n.3, 9, 11-13. As to the three entries covered by Protest No. 1803-04-
100056 that were entered on or after October 2, 2000 (i.e., Entry Nos. WJP-0002470-8, WJP-
0002492-2, and WJP-0002507-7), the Government seeks summary judgment liquidating the entries
duty-free. See id. at 2 & n.3, 13, 29; Defendant’s Reply to Plaintiff’s Response to Defendant’s
Motion for Summary Judgment and Response to Plaintiff’s Cross-Motion for Summary Judgment
(“Def.’s Reply Brief”) at 3 n.4, 20; [Defendant’s] Supplemental Memorandum in Support of
Defendant’s Motion for Summary Judgment (“Def.’s Supp. Brief”) at 10.
5Although Macclenny and the Government filed both public and confidential versions of
their principal briefs, all citations herein are to the public versions.
6As discussed below, although the Government’s submission is captioned solely as a Motion
for Summary Judgment, the Government’s briefs also seek dismissal of certain claims for lack of
subject matter jurisdiction and dismissal of others for failure to state a claim upon which relief can
be granted.
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With respect to all other entries, the Government requests entry of summary judgment
sustaining Customs’ use of transaction value to appraise the merchandise, based on the
“circumstances of the sale” test set forth in the valuation statute. 	Specifically, the Government
argues that use of transaction value was appropriate because – according to the Government – the
price of the merchandise was “settled in a manner consistent with the normal pricing practices of
the industry,” and thus was not influenced by the relationship between the importer-buyer and the
foreign manufacturer-seller. 19 U.S.C. § 1401a(b)(2)(B); 19 C.F.R. § 152.103(l)(1)7; see Def.’s
Brief at 9, 13-20, 26, 28, 29; Def.’s Reply Brief at 1-12, 16, 20; Def.’s Supp. Brief at 8-9, passim;
Defendant’s Reply to Plaintiff’s Supplemental Brief (“Def.’s Supp. Reply Brief”) at 1-8.
The Government also seeks entry of summary judgment on its counterclaim for additional
duties. 	Assuming that summary judgment enters sustaining Customs’ decision to appraise the
merchandise on the basis of transaction value, the Government requests that the Court order
reliquidation of the entries at issue to include in the appraised value a specific sum per unit for
entries made in 2000 to reflect “Deferred Production Costs,” and, in addition, “all amounts paid by
BCG to or on behalf of KB in 2000 and 2001 that were not offset by payments by KB to BCG or
goods shipped by KB to Macclenny/BCG in those years.” Def.’s Brief at 29; see also id. at 9, 20-26;
Def.’s Reply Brief at 12-15, 20-21; Def.’s Supp. Brief at 10.
In its cross-motion for summary judgment, Macclenny concurs in the Government’s request
that Entry Nos. WJP-0002470-8, WJP-0002492-2, and WJP-0002507-7 be liquidated duty-free
7All citations to federal regulations are to the 1999 edition of the Code of Federal
Regulations, which is identical to the 2000 and 2001 editions in all relevant respects.
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pursuant to the CBTPA. See Plaintiff’s Memorandum in Opposition to Defendant’s Motion for
Summary Judgment and in Support of Plaintiff’s Cross-Motion for Summary Judgment (“Pl.’s
Brief”) at 2, 3 n.1, 12-13, 14, 16-17, 32-33. In addition, Macclenny seeks summary judgment on
its claim that the balance of the entries at issue should have been appraised for liquidation based on
deductive value. See id. at 2, 13-15, 17-25, 28-31, 32; Plaintiff’s Reply to Defendant’s Response
to Plaintiff’s Cross-Motion for Summary Judgment (“Pl.’s Reply Brief”) at 1-11, 17-18; Plaintiff’s
Supplemental Brief (“Pl.’s Supp. Brief”) at 1-10; Plaintiff’s Reply to Defendant’s Supplemental
Brief (“Pl.’s Supp. Reply Brief”) at 1-4.
With the limitations discussed herein, jurisdiction over Macclenny’s claims lies under 28
U.S.C. § 1581(a); and jurisdiction over the Government’s counterclaim lies under 28 U.S.C. § 1583.
As discussed in greater detail below, the Government’s motion to dismiss for lack of jurisdiction
Macclenny’s CBTPA claim as to all entries other than those covered by Protest No. 1803-04-100056
must be granted. The Government’s motion seeking dismissal or denial of Macclenny’s CBTPA
claim with respect to the four entries covered by Protest No. 1803-04-100056 which were made
before October 2, 2000 also must be granted. As to the three specified entries that are subject to the
CBTPA (Entry Nos. WJP-0002470-8, WJP-0002492-2, and WJP-0002507-7), the Government’s
motion for summary judgment must be granted. 	However, both the Government’s motion for
summary judgment concerning the proper method of appraisement of all remaining entries and
Macclenny’s cross-motion for summary judgment on the same issue must be denied.
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I. Background
This action concerns 46 entries of men’s suit-type jackets imported from Nicaragua in
2000/2001 and presents two basic issues: 	(1) whether, as the Government contends, it was proper
for Customs to appraise the merchandise based on its “transaction value,” notwithstanding the
relationship between Macclenny Products (the importer-buyer) and KB Manufacturing Company
(the foreign manufacturer-seller); and (2) whether any of the merchandise was eligible for duty-free
treatment under the United States-Caribbean Basin Trade Partnership Act, as Macclenny maintains.8
As the Court of Appeals has explained, “[i]mported merchandise must be appraised so that
the final amount of duty to be paid on the merchandise can be fixed and entries of the merchandise
can be liquidated.” VWP of America, Inc. v. United States,175 F.3d 1327, 1330 (Fed. Cir. 1999)
(citing 19 U.S.C. § 1500). Customs is required to appraise imported merchandise in the manner
specified in the valuation statute, 19 U.S.C. § 1401a. 	See 19 U.S.C. § 1500(a). 	The statute
establishes “transaction value” as the primary method of valuation. 19 U.S.C. § 1401a(a)(1)(A); see
also VWP of America, 175 F.3d at 1330, 1335. 9
8The facts set forth in this section are drawn generally from the parties’ Statements of Facts,
as well as their briefs and related exhibits, including, in particular, the deposition and affidavit of
Philip Looby, the Chief Operating Officer of Bayer Clothing Group, Inc. (“BCG”), of which
Macclenny was a division.
9In addition to transaction value (the primary method of valuation), the statute also sets forth
five secondary methods, which must be considered in order (with the proviso that an importer may
request the reversal of deductive value and computed value at the time the entry summary is filed).
The five secondary methods of valuation are: (1) the transaction value of identical merchandise, (2)
the transaction value of similar merchandise, (3) deductive value, (4) computed value, and (5) the
“ [v]alue if other values cannot be determined or used” (as specified in 19 U.S.C. § 1401a(f)(1)).
See 19 U.S.C. § 1401a(a).
As discussed in greater detail below, Macclenny contends that the merchandise at issue here
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“Transaction value” is defined in relevant part as “the price actually paid . . . for the
merchandise when sold for exportation to the United States,” plus certain statutory additions. 19
U.S.C. § 1401a(b)(1); see also 19 U.S.C. § 1401a(b)(4)(A) (defining “price actually paid” as “the
total payment . . . made . . . for imported merchandise by the buyer to . . . the seller,” excluding
international freight, insurance, and other C.I.F. charges). The “price actually paid” is typically the
price that is reflected on the invoice for the merchandise, which is included with the entry papers
that an importer files with Customs.
Although transaction value is the primary method of valuing imported goods under the
statute, the use of transaction value may be contraindicated where – as here – the buyer and the
seller are “related.” See VWP of America, 175 F.3d at 1330-31; 19 U.S.C. § 1401a(b)(2)(B); see
also 19 C.F.R. § 152.103(j)(1)(iv). In such circumstances, the parties’ transaction must be “closely
scrutinize[d]” to ensure that the parties have not colluded to lower the invoice price in order to
minimize import duties. See generally La Perla Fashions, Inc. v. United States, 22 CIT 393, 395,
9 F. Supp. 2d 698, 700-01 (1998), aff’d per curiam, 185 F.3d 825 (Fed. Cir. 1999) (explaining that
potential for related parties to manipulate invoice price in order to evade import duties “motivated
Congress to enact protective legislation and to direct Customs to closely scrutinize related party
should be appraised based on “deductive value.” See 19 U.S.C. § 1401a(d) (defining “deductive
value”). Customs has explained: “Basically, deductive value is the resale price in the United States
after importation of the goods, with deductions for certain items. Generally, the deductive value is
calculated by starting with a unit price and making certain additions to and deductions from that
price.” See generally What Every Member of the Trade Community Should Know About: Customs
Value (U.S. Dep’t of Homeland Security July 2006) at 14-15; see also Def.’s Brief at 2
(summarizing definition of “deductive value” as “resale prices to U.S. buyers less statutory
deductions”).
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transfer pricing”).10
Due to such concerns, the valuation statute precludes appraisement based on transaction
value where the buyer and seller are “related,” except in certain circumstances. Specifically, the
statute authorizes the use of transaction value even where the buyer and seller are related “if an
examination of the circumstances of the sale. . . indicates that the relationship between such buyer
and seller did not influence the price actually paid.” 19 U.S.C. § 1401a(b)(2)(B) (emphases added);
see also 19 C.F.R. § 152.103(j)(2)(i). Alternatively, the statute authorizes the use of transaction
value notwithstanding a relationship between the buyer and the seller “if the transaction value of the
imported merchandise closely approximates – (i) the transaction value of identical merchandise, or
of similar merchandise, in sales to unrelated buyers in the United States; or (ii) the deductive value
or 	computed 	value 	for 	identical 	merchandise 	or 	similar 	merchandise.” 	19 	U.S.C. 	§
1401a(b)(2)(B)(i)-(ii)11 ; see also 19 C.F.R. § 152.103(j)(2)(i)(A)-(B).
Customs regulations provide detailed guidance for use in applying the “circumstances of the
sale” test to determine whether or not a relationship influenced price in a related party transaction.
10When a foreign party (such as KB here) sells merchandise to a related party in the United
States (such as Macclenny/BCG), Customs and the Internal Revenue Service (“IRS”) share – at least
in theory – the same goal: 	ascertaining the correct price that the U.S. importer should pay to the
related foreign entity for that merchandise. However, Customs and the IRS have different concerns.
Customs generally is concerned that the stated price may be artificially low, so as to minimize
customs duties due on the imported merchandise. In contrast, the IRS typically is concerned that
the stated price may be artificially high, so that a lower portion of the profit generated by the sale
of the final product will be taxable in the United States.
11The statute requires that “each value referred to in clause (i) or (ii) that is used for
comparison [must] relate[] to merchandise that was exported to the United States at or about the
same time as the imported merchandise.” 	19 U.S.C. § 1401a(b)(2)(B); see also 19 C.F.R. §
152.103(j)(2)(i)(C).
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The Interpretative Notes to 19 C.F.R. § 152.103(l)(1) provide, in relevant part:
(i) Interpretative note 1. . . . [Where Customs has doubts about the use of
price “and is unable to accept the transaction value without further inquiry,”] . . .
Customs will examine relevant aspects of the transaction, including the way in which
the buyer and seller organize their commercial relations and the way in which the
price in question was arrived at in order to determine whether the relationship
influenced the price.
(ii) Interpretative note 2. If it is shown that the buyer and seller, although
related, buy from and sell to each other as if they were not related, this will
demonstrate that the price has not been influenced by the relationship, and the
transaction value will be accepted. 	If the price has been settled in a manner
consistent with the normal pricing practices of the industry in question, or with the
way the seller settles prices for sales to buyers who are not related to him, this will
demonstrate that the price has not been influenced by the relationship.
(iii) Interpretative note 3. If it is shown that the price is adequate to ensure
recovery of all costs plus a profit which is equivalent to the firm’s overall profit
realized over a representative period of time (e.g., on an annual basis), in sales of
merchandise of the same class or kind, this would demonstrate that the price has not
been influenced.
19 C.F.R. § 152.103(l)(1)(i)-(iii) (emphases added).
At the time of the events at issue, Macclenny was a division of Bayer Clothing Group, Inc.
(“BCG”), with responsibility for BCG’s import/export activities.12 KB was established in Nicaragua
in 1997 as a division of BCG, for the specific purpose of producing “cheap value wool” menswear.
As both Macclenny and KB were divisions of BCG (which was wholly owned by Robert I. Bayer),
it is undisputed that Macclenny and KB are related entities for purposes of the valuation statute. See
19 U.S.C. § 1401a(g)(1).
KB was the only manufacturer of men’s suit-type jackets in Nicaragua (whether or not for
12Noting that “Macclenny did not maintain separate accounting records from BCG and
always acted on BCG’s behalf,” the Government’s briefs generally refer to Macclenny and BCG
jointly, as “Macclenny/BCG.” See Def.’s Brief at 4 n.5. The same convention is followed here.
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export to the United States); and KB had no customers other than Macclenny/BCG. KB thus existed
solely to serve Macclenny/BCG. Macclenny/BCG shipped cut raw materials to KB in Nicaragua,
where KB assembled them into ready-to-wear suit-type jackets. 	KB returned the assembled
garments directly back to Macclenny/BCG in the United States. Macclenny/BCG then sold the
jackets to its U.S. customers, including retailers such as Sears and JCPenney.
The prices for KB’s sales to Macclenny/BCG were not set by KB. Instead, the prices were
set by Philip Looby, BCG’s Chief Operating Officer at the time, who based them on annual budgets
prepared by several individuals including BCG’s Vice President of Manufacturing and KB’s Plant
Manager.13 Although KB was not expected to earn a profit during the start-up phase, it was expected
– when operations began in 1998 – that the KB would turn a reasonable profit within a few years.
Yet, from the time KB commenced production in 1998 until it ceased operations in 2007, no profit
ever materialized. Indeed, KB operated at a loss for every year of its existence.
Mr. Looby nevertheless raised the prices that Macclenny/BCG paid KB only twice over the
course of KB’s lifetime – once sometime after July 1999 but before the merchandise at issue was
imported in 2000/2001, and then once again in 2005. Moreover, despite KB’s record of sustained
losses, KB was not free to decline any order from Macclenny/BCG. Nor was price ever open to any
offer/counter-offer process, or any other form of negotiation between KB and Macclenny/BCG. KB
was required to fulfill every order placed by Macclenny/BCG, and to do so at the price that was set
by Mr. Looby, the Chief Operating Officer of BCG.
In this respect, Macclenny/BCG’s dealings with KB differed from Macclenny/BCG’s
13On at least one occasion, Mr. Looby also consulted with the Chief Financial Officer of
BCG.
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dealings with X-Cell (a Dominican garment assembly contractor) and other similar contractors to
which Macclenny/BCG was not related. Thus, for example, when Macclenny/BCG told X-Cell the
price that Macclenny/BCG was willing to pay for a particular style of jacket, X-Cell decided
whether or not to agree to produce the goods after determining whether it could expect to turn a
profit on the business. Unlike KB, X-Cell and Macclenny/BCG’s other contractors were free to
reject orders from the company, if, for example, a price offered by Macclenny/BCG was too low.
Finally, some of the KB merchandise at issue was imported after early October 2000, when
KB’s home country – Nicaragua – was granted beneficiary status under the United States-Caribbean
Basin Trade Partnership Act (“CBTPA”). See 19 U.S.C. § 2702(b) (listing Nicaragua as eligible for
designation as beneficiary country under Act, effective Oct. 2, 2000); Determination under the
Caribbean Basin Act, 65 Fed. Reg. 60,236 (Oct. 10, 2000) (granting Nicaragua beneficiary status,
and modifying HTSUS, effective Oct. 2, 2000). Under the Act, eligible goods from “beneficiary
countries” such as Nicaragua may be imported into the United States duty-free. See generally 19
U.S.C. §§ 2702-03 (listing certain countries and goods as eligible for duty-free treatment under Act).
In particular, the merchandise eligible for such duty-free treatment includes “apparel articles” that
were assembled in a CBTPA beneficiary country “from fabrics wholly formed and cut in the United
States” and were then imported directly into the United States under subheading 9802.00.80 of the
HTSUS14 – the tariff classification for the merchandise at issue here, which is not in dispute. See
14HTSUS subheading 9802.00.80 covers “[a]rticles . . . assembled abroad in whole or in part
of fabricated components, the product of the United States, which (a) were exported in condition
ready for assembly without further fabrication, (b) have not lost their physical identity in such
articles by change in form, shape or otherwise, and (c) have not been advanced in value or improved
in condition abroad except by being assembled and except by operations incidental to the assembly
process such as cleaning, lubricating and painting.” Subheading 9802.00.80, HTSUS.
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19 U.S.C. § 2703(b)(2)(A)(i)(I); U.S. Note 7(b)(i), Ch. 98, Subch. II, HTSUS; see also Proclamation
7351 of October 2, 2000 to Implement the United States-Caribbean Basin Trade Partnership Act,
Fed. Reg. 59,329, 59,333 (Oct. 4, 2000) (modifying HTSUS to include U.S. Note 7(b)(i), Ch. 98,
Subch. II, HTSUS, effective Oct. 2, 2000).
Pursuant to a request from Macclenny, Customs suspended liquidation of the merchandise
at issue pending the resolution of various valuation-related issues, including – in particular –
Macclenny’s claim that Customs’ use of “transaction value” to appraise the goods would be
inappropriate because (according to Macclenny) the relationship between KB and Macclenny/BCG
had influenced the price. Macclenny argued that, under the circumstances, the merchandise should
be appraised based on “deductive value.” 15
Customs reviewed supplemental information and worksheets submitted by Macclenny, then
requested internal advice from Customs Headquarters. 	Relying on a September 2001 letter to
Customs in which Macclenny’s counsel had stated that, “[f]or the 1999 year,” prices for KB’s
merchandise had been established “after arms’ length negotiations” with BCG, Customs
Headquarters concluded – based on the “circumstances of the sale” test – that the relationship
between KB and Macclenny/BCG had no “influence” on prices. Customs Headquarters therefore
15In addition to suspending liquidation of the 2000 and 2001 entries, Customs also suspended
liquidation of entries made in 1999 (which are not at issue in this action). 	Customs expressed
reservations about the adequacy of Macclenny/BCG’s documentation and seeming errors in the
company’s deductive value spreadsheets. 	Nonetheless, the agency ultimately acquiesced to the
company’s claim with respect to the 1999 entries and appraised them based on deductive value,
citing a shortage of Customs port personnel to conduct a verification. However, Customs expressly
cautioned Macclenny/BCG at the time that claims for subsequent years would be reviewed and
processed based on their substantive merits. See generally Def.’s Brief at 2; Def.’s Reply Brief at
2 n.3.
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advised that the proper basis for appraisement was transaction value plus additions. See HQ 548475
(March 25, 2004) (Def.’s Brief, Exh. M). 	Accordingly, at liquidation, Customs appraised the
merchandise on the basis of transaction value at the unit values as entered, including an amount for
the values of U.S. components. Duties were assessed at the various rates derived from the applicable
subheadings in HTSUS Chapter 62. See generally Subheading 9802.00.80, HTSUS.
Thereafter, Macclenny filed four protests, reiterating its claim for appraisement based on
deductive value, and, in one of the protests, asserting a claim for duty-free treatment under the
CBTPA. Customs denied Macclenny’s protests, and this action ensued.
II. Standard of Review
With respect to Macclenny’s claims to duty-free treatment under the United States-Caribbean
Basin Trade Partnership Act (“CBTPA”), the Government seeks dismissal for lack of subject matter
jurisdiction as to the majority of the entries at issue. See generally section III.A.1.a, infra; USCIT
R. 12(b)(1). The existence of subject matter jurisdiction is a threshold inquiry. See, e.g., Steel Co.
v. Citizens for a Better Environment, 523 U.S. 83, 94-95 (1998). Where subject matter jurisdiction
is challenged, the party invoking jurisdiction bears the burden of proving its existence. Trusted
Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011); see also McNutt v. General
Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Norsk Hydro Canada, Inc. v. United States,
472 F.3d 1347, 1355 (Fed. Cir. 2006).
Moreover, it is axiomatic that “‘[t]he United States, as sovereign, is immune from suit save
as it consents to be sued . . . , and [that] the terms of its consent to be sued in any court define that
court’s jurisdiction to entertain the suit.’” 	United States v. Mitchell, 445 U.S. 535, 538 (1980)
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(quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)); see also Blueport Co. v. United
States, 533 F.3d 1374, 1378 (Fed. Cir. 2008); Georgetown Steel Corp. v. United States, 801 F.2d
1308, 1312 (Fed. Cir. 1986). Thus, where – as here – a waiver of sovereign immunity is at issue,
the language of the statute must be strictly construed, and any ambiguities resolved in favor of
immunity. FAA v. Cooper, ____ U.S. ____, ____, 132 S. Ct. 1441, 1448 (2012) (citing United
States v. Williams, 514 U.S. 527, 531 (1995)); Zoltek Corp. v. United States, 672 F.3d 1309, 1318
(Fed. Cir. 2012); Hartog Foods Int’l, Inc. v. United States, 291 F.3d 789, 791 (Fed. Cir. 2002).
With respect to Macclenny’s CBTPA claim concerning the four entries covered by Protest
No. 1803-04-100056 that were made prior to October 2, 2000 (the effective date of the CBTPA as
to goods from Nicaragua), the Government moves to dismiss for failure to state a claim upon which
relief can be granted. See generally section III.A.1.b, infra; USCIT R. 12(b)(5). On such a motion,
the movant has the burden of demonstrating that no claim has been stated. See generally 5B C.
Wright & A. Miller, Federal Practice and Procedure § 1357, pp. 456-62 (3d ed. 2004) (“Wright &
Miller”). Further, the court must “construe the complaint in the light most favorable to the plaintiff,
accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” In re Bill
of Lading Transmission and Processing System Patent Litigation, 681 F.3d 1323, 1331 (Fed. Cir.
2012); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Amoco Oil Co. v. United States, 234
F.3d 1374, 1376 (Fed. Cir. 2000).16 Thus, the purpose of a motion to dismiss for failure to state a
claim is not to “resolv[e] a contest between the parties about the facts or the substantive merits of
16On the other hand, a complaint’s “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice” to satisfy the requirements of the Federal
Rules. Ashcroft v. Iqbal, 556 U.S. at 678. Moreover, “the tenet that a court must accept as true all
of the allegations contained in a complaint is inapplicable to legal conclusions.” Id.
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Court No. 05-00484 	Page 15
the [non-movant’s] case.” 5B Wright & Miller § 1356, p. 354. However, it does serve to “test the
formal sufficiency of the statement of the claim for relief,” challenging “the legal theory of the
complaint.” Id.; Advanced Cardiovascular Systems, Inc. v. Scimed Life Systems, Inc., 988 F.2d
1157, 1160 (Fed. Cir. 1993) (explaining that motion to dismiss for failure to state claim is designed
“to allow the court to eliminate actions that are fatally flawed in their legal premises and destined
to fail”). As such, “only a complaint that states a plausible claim for relief survives [such] a motion
to dismiss.” Ashcroft v. Iqbal, 556 U.S. at 679. 17
Finally, both parties seek summary judgment on certain claims. 	See generally section
III.A.1.c, infra (addressing Government’s motion for summary judgment as to certain entries entitled
to duty-free treatment under CBTPA); section III.A.2, infra (addressing Government’s motion for
summary judgment concerning proper method of appraisement); section III.B, infra (addressing
Macclenny’s cross-motion concerning same ); USCIT R. 56. 18 Summary judgment is a favored
17There is ample authority for the proposition that a motion to dismiss for failure to state a
claim must be filed before the service of a responsive pleading; otherwise, it must be treated through
some other vehicle, such as a motion for judgment on the pleadings or a motion for summary
judgment. See USCIT R. 12(b) (stating that “a motion asserting any of the[] defenses [listed in Rule
12(b)] 	must 	be 	made 	before 	pleading 	if 	a 	responsive 	pleading 	is 	allowed”); 	Advanced
Cardiovascular Systems, 988 F.2d at 1160 (noting that Federal Rules authorize defendant to file
motion to dismiss “before filing a responsive pleading”); 5B Wright & Miller § 1357, p. 408. Under
the circumstances of this case, however, it makes no difference whether the specific claims at issue
are analyzed through the lens of a motion to dismiss for failure to state a claim or a motion for
summary judgment. The outcome is the same either way.
18The Government suggests that the “presumption of correctness” attaches to Customs’
decision to use transaction value to appraise the subject merchandise. 	See Def.’s Brief at 10
(quoting VWP of America, 175 F.3d at 1342 (noting that a “presumption of correctness attaches to
every factual determination necessary to support an appraisal”) (emphasis added)). However, the
statutory presumption of correctness that Customs’ decisions enjoy under 28 U.S.C. § 2639(a)(1)
has no force or effect at the summary judgment stage of proceedings, because summary judgment
may be entered only if there is no genuine dispute as to any material fact – and, if there is no such
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Court No. 05-00484 	Page 16
procedural device “to secure the just, speedy and inexpensive determination of [an] action.” Celotex
Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1); see also Sweats Fashions, Inc.
v. Pannill Knitting Co., 833 F.2d 1560, 1562 (Fed. Cir. 1987). Indeed, the Court of Appeals has
hailed summary judgment as a “salutary procedure . . . to avoid unnecessary expense to the parties
and 	wasteful 	utilization 	of 	the 	jury 	process 	and 	judicial 	resources.” 	Barmag 	Barmer
Maschinenfabrik AG v. Murata Machinery, Ltd., 731 F2d 831, 835 (Fed. Cir. 1984).
Nevertheless, under USCIT Rule 56, summary judgment is appropriate only when the record
evidence – “including depositions, documents, electronically stored information, affidavits or
declarations, stipulations . . . , admissions, interrogatory answers, [and] other materials” – establishes
that “there is no genuine dispute as to any material fact” and the moving party “is entitled to
judgment as a matter of law.” USCIT R. 56(a) & (c)(1)(A); see also Celotex, 477 U.S. at 322-23;
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In addition, where a motion for
summary judgment is filed and properly supported, an adverse party may not rest upon mere denials
to defeat it. To the contrary, the opposing party must “cit[e] to particular parts of materials in the
record” to establish the “presence of a genuine dispute” warranting trial. USCIT R. 56(c). And, if
a party “fails to properly address another party’s assertion of fact,” that assertion of fact may be
factual dispute, then Customs does not need the benefit of any presumption. See, e.g., Universal
Electronics, Inc. v. United States, 112 F.3d 488, 492-93 (Fed. Cir. 1997) (explaining that statutory
presumption of correctness “carries no force as to questions of law”); Rollerblade, Inc. v. United
States, 112 F.3d 481, 483-84 (Fed. Cir. 1997) (stating that presumption of correctness “is irrelevant
where there is no factual dispute between the parties”); Goodman Mfg., L.P. v. United States, 69
F.3d 505, 508 (Fed. Cir. 1995) (noting that, absent factual dispute between parties, “the presumption
of correctness is not relevant”). Indeed, the Court of Appeals decision on which the Government
relies – VWP of America – did not involve appellate review of a decision on summary judgment.
VWP had gone to trial. See VWP of America, 175 F.3d at 1332 (noting that decision of Court of
International Trade under review was rendered “[f]ollowing a trial”).
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Court No. 05-00484 	Page 17
deemed “undisputed for purposes of the motion.” USCIT R. 56(e)(2).19
Ultimately, the function of the judge at the summary judgment stage “is not himself to weigh
the evidence and determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Anderson v. Liberty Lobby, 477 U.S. at 249. The question, then, “is not whether [a
party’s] proof will ultimately be found convincing or persuasive . . . . Rather, the question is only
whether the parties have proof for their claims . . . such that a trial is needed.” 11 Moore’s Federal
Practice § 56.02[1], p. 56-18 (3d ed. 2013) (“Moore’s Federal Practice”). As such, a movant is not
entitled to summary judgment “merely because the facts the party offers appear more plausible than
those tendered in opposition, or because it appears that the adversary is unlikely to prevail at trial.
This is true even though both parties move for summary judgment” – as the parties have done here.
10A C. Wright, A. Miller, & M. K. Kane, Federal Practice and Procedure § 2725, pp. 432-33 (3d
ed. 1998) (“Wright, Miller, & Kane”). Summary judgment is proper “only when a trial would be
superfluous.” 11 Moore’s Federal Practice § 56.02[1], p. 56-16.
A party moving for summary judgment thus “is held to a stringent standard.” 10A Wright,
Miller, & Kane § 2727, p. 457. In evaluating a summary judgment motion, “any doubt as to the
existence of a genuine issue of material fact will be resolved against the movant.” Id. § 2727, pp.
19At the time the Government filed the Statement of Facts that accompanied its motion for
summary judgment, and at the time Macclenny filed its response to the Government’s motion, the
applicable rule required a movant to file “a separate, short and concise statement . . . of the material
facts as to which the moving party contends there is no genuine issue to be tried,” and further stated:
All material facts set out in the statement [of material facts] required to be served by
the movant will be deemed admitted unless controverted by the [responsive]
statement required to be served by the opposing party.
USCIT R. 56(h)(1) & (3) (effective Jan. 1, 2009) (emphasis added).
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457-58. In addition, “[b]ecause the burden is on the movant, the evidence . . . always is construed
in favor of the party opposing the motion and the opponent is given the benefit of all favorable
inferences that can be drawn from it.” Id. § 2727, p. 459. Moreover, “facts asserted by the party
opposing the motion, if supported by affidavits or other evidentiary material, are regarded as true.”
Id. § 2727, pp. 459-62.
In short, because the effect of the entry of summary judgment is “rather drastic,” summary
judgment is to be “cautiously invoked” and used “with a due regard for its purposes.” 10A Wright,
Miller, & Kane § 2712, pp. 215-16. Summary judgment thus is not appropriate where there are
“[d]oubts as to the credibility of a movant’s affiants or witnesses.” Id. § 2726, p. 440. Similarly,
summary judgment is not appropriate where “the evidence presented . . . is subject to conflicting
interpretations, or reasonable people might differ as to its significance.” Id. § 2725, pp. 433-37.
And summary judgment is not appropriate “if the existence of material fact issues is uncertain.” Id.
§ 2712, p. 210. Further, although “[t]he fact that difficult questions of law exist or that the parties
differ on the legal conclusions to be drawn from the facts is not in and of itself a ground for denying
summary judgment,” “[i]t does not follow . . . that the difficulty of the legal issues is completely
irrelevant to the grant or denial of summary judgment.” Id. § 2725, pp. 410-12. As a practical
matter:
Before the court can apply the law, it must have an adequate factual basis for doing
so. In some situations, a fuller development of the facts may serve to clarify the law
or help the court determine its application to the case. As a result, the resolution of
complex questions of law frequently requires a more concrete factual development
than may be obtained through summary proceedings.
Id. § 2725, pp. 412-15.
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Accordingly, as one leading authority sums up the state of the law, summary judgment is a
device that is properly reserved only for those actions which are truly “clear cases.” 10A Wright,
Miller, & Kane § 2725, pp. 428-29. 20
III. Analysis
As outlined above, the parties have filed a number of dispositive motions. 	The
Government’s pending motions include a motion to dismiss for lack of subject matter jurisdiction,
a motion to dismiss for failure to state a claim upon which relief can be granted, and a motion for
summary judgment as to certain entries pursuant to the United States-Caribbean Basin Trade
Partnership Act (“CBTPA”). In addition, the Government and Macclenny have filed cross-motions
for summary judgment concerning the proper basis for appraisement of the merchandise at issue.
Each of the parties’ motions is analyzed in turn below.
A. The Government’s Dispositive Motions
Three of the Government’s four pending motions are addressed to Macclenny’s claim for
duty-free treatment pursuant to the CBTPA. As discussed below, all three motions are meritorious
and must be granted. See generally section III.A.1, infra. In contrast, for the reasons set forth in
detail, the Government’s motion for summary judgment sustaining Customs’ use of transaction
value to appraise Macclenny’s merchandise fails on both the facts and the law. 	That motion
20Where a motion for summary judgment has been denied, there is nothing that inherently
and necessarily precludes the movant from again seeking summary judgment, whether on the same
or different grounds. See, e.g., 11 Moore’s Federal Practice § 56.121, pp. 56-299-56-307 (discussing
“Multiple and Successive Summary Judgment Motions”); 10A Wright, Miller, & Kane § 2712, pp.
214-15 (noting that renewal of summary judgment motion may be “particularly appropriate” where
subsequent discovery reveals facts not available at time of first motion).
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accordingly must be denied. See generally section III.A.2, infra.
1. Macclenny’s CBTPA Claim
The Government has moved to dismiss for lack of subject matter jurisdiction Macclenny’s
CBTPA claim as to all entries other than those covered by Protest No. 1803-04-100056. 	As
discussed below, the three protests at issue other than Protest No. 1803-04-100056 did not assert
CBTPA claims. The Government’s motion to dismiss therefore must be granted.
Further, the Government has moved to dismiss for failure to state a claim Macclenny’s
CBTPA claim with respect to the four entries covered by Protest No. 1803-04-100056 which were
made before October 2, 2000, the effective date of the CBTPA as to goods from Nicaragua. As
detailed below, whether the matter is analyzed under the rubric of a motion to dismiss for failure to
state a claim or, alternatively, as a motion for judgment on the pleadings or for summary judgment,
the Government’s request for relief must be granted and Macclenny’s CBTPA claim must be denied
or dismissed as to those four entries.
As to the three remaining entries, the Government seeks summary judgment, requesting that
the entries be reliquidated duty-free, with interest, pursuant to the CBTPA. As set forth below, that
motion too must be granted.
a. The Government’s Motion to Dismiss for Lack of Subject Matter Jurisdiction
With respect to Macclenny’s CBTPA claim, the Government seeks dismissal for lack of
subject matter jurisdiction pursuant to USCIT Rule 12(b)(1) as to all entries covered by three of the
four protests identified in the Summons and Complaint – i.e., Protest Nos. 1803-03-100072, 1803-
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Court No. 05-00484 	Page 21
04-100024, and 1803-04-100043. In other words, the Government seeks dismissal of Macclenny’s
CBTPA claim for lack of jurisdiction as to all entries other than those covered by Protest No. 1803-
04-100056. 	See generally Def.’s Brief at 2, 9, 11-13; see also Answer and Counterclaim ¶ 1
(denying existence of subject matter jurisdiction “except for [entries] covered by Protest No. 1803-
04-100056, with respect to Plaintiff’s claim for duty-free treatment” under CBTPA); id. ¶ 34
(asserting as affirmative defense “lack[] [of] subject matter jurisdiction over plaintiff’s claim for
duty-free entry under [the CBTPA] . . . as regards all entries, except for those covered by Protest No.
1803-04-100056, because none of the other three protests . . . makes a CBTPA claim”).21
Macclenny predicates jurisdiction here on 28 U.S.C. § 1581(a), which, “[b]y its terms, . . .
limits the jurisdiction of the Court of International Trade to appeals from denials of valid protests.”
See Koike Aronson, Inc. v. United States, 165 F.3d 906, 908 (Fed. Cir. 1999); 28 U.S.C. § 1581(a).
To be valid, a protest must set forth – “distinctly and specifically” – “the nature of each objection
and the reasons therefor.” 19 U.S.C. § 1514(c)(1)(C); see also 19 C.F.R. § 174.13(a)(6) (requiring
that protest detail “[t]he nature of, and justification for[,] the objection set forth distinctly and
specifically . . . ”). The statute further mandates that every protest identify – again, “distinctly and
21The scope and practical effect of the Government’s motion to dismiss are somewhat
unclear. Macclenny’s First Amended Complaint appears to limit the company’s CBTPA claim to
only those entries covered by the four protests at issue which were “entered on or after October 2,
2000” (the effective date of the CBTPA as to goods from Nicaragua). See First Amended Complaint
¶ 26. It further appears that, of the three protests at issue other than Protest No. 1803-04-100056,
only one protest – specifically, Protest No. 1803-03-100027 – covers entries that were made on or
after October 2, 2000. See First Amended Complaint at attached Schedule of Protests (listing entry
numbers and respective dates of entry). It thus appears that the Government’s motion to dismiss
actually implicates only the entries covered by Protest No. 1803-03-100027. Nevertheless, in an
abundance of caution, the entries covered by all three protests are addressed here, as presented by
the Government’s motion.
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specifically” – the particular Customs decision(s) being protested. See 19 U.S.C. § 1514(c)(1)(A).
The Court of Appeals has emphasized the “mandatory” nature of these statutory and regulatory
provisions, to ensure that all protests apprise Customs of the nature and character of the asserted
claims. See Koike Aronson, 165 F.3d at 908-09; see also Davies v. Arthur, 96 U.S. 148, 151 (1877)
(holding that every protest “must be so distinct and specific, as, when fairly construed, to show that
the objection . . . was sufficient to notify [Customs] of its true nature and character”).
Of the four protests at issue in this action, only Protest No. 1803-04-100056 sets forth a
CBTPA claim, asserting that “the said merchandise is properly duty-free as CBTPA-qualified
goods.” See Def.’s Brief at 12 (quoting Protest No. 1803-04-100056); see also id. at 2, 9. The three
remaining protests are silent as to the CBTPA, alleging only that the relevant entries of merchandise
“are properly dutiable on the basis of deductive value.” Id. at 12 (quoting three other protests at
issue); see also id. at 2, 9. Those three protests therefore were not valid as to any CBTPA claim,
because they failed to give Customs the requisite notice.
Because a valid protest (and the denial of that protest) is a prerequisite to subject matter
jurisdiction under 28 U.S.C. § 1581(a), Macclenny’s CBTPA claim as to Protest Nos. 1803-03-
100072, 1803-04-100024, and 1803-04-100043 must be dismissed for want of jurisdiction.
Macclenny does not contend otherwise. See, e.g., Pl.’s Brief at 12 (acknowledging that CBTPA
claim is properly “limited to the goods covered by Entry Nos. WJP-000[2]470-8, WJP-0002492-2
and WJP-0002507-7 and included in Protest No. 1803-04-100056 only”) (emphases added).22
22See also Pl.’s Brief at 2 (claiming only that certain “merchandise included in Entry Nos.
WJP-0002470-8, WJP-0002492-2 and WJP-0002507-7 of Protest No. 1803-04-100056 . . .
qualif[ies] for duty-free treatment” under CBTPA); id. at 14 (arguing only that Customs should be
ordered to “reliquidate the three designated entries that qualify for duty-free treatment covered by
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b. The Government’s Motion to Dismiss for Failure to State a Claim
or, Alternatively, Motion for Judgment on the Pleadings or Summary Judgment
Of the four protests at issue in this action, only Protest No. 1803-04-100056 sets forth a
CBTPA claim. See Def.’s Brief at 12 (quoting Protest No. 1803-04-100056). Of the seven entries
covered by that protest, the Government seeks dismissal for failure to state a claim as to
Macclenny’s CBTPA claim with respect to Entry Nos. WJP-0002399-9, WJP-0002416-1, WJP-
0002429-4, and WJP-0002440-1 – i.e., the four entries that were made prior to October 2, 2000, the
effective date of the CBTPA as to goods from Nicaragua. See id. at 2 & n.3, 9, 11-13; USCIT R.
12(b)(5).23 Whether analyzed under the rubric of a motion to dismiss for failure to state a claim, or,
alternatively, a motion for judgment on the pleadings (USCIT Rule 12(c)) or a motion for summary
judgment (USCIT Rule 56), the Government’s argument is equally sound. 	See n.17, supra
(explaining that motion to dismiss for failure to state a claim filed after Answer should be treated
as motion for judgment on pleadings or motion for summary judgment).
As the Government correctly observes, only three of the seven entries covered by Protest No.
Protest No. 1803-04-100056 in accordance with [the CBTPA]”); id. at 16-17 (stating that Plaintiff
intended that its CBTPA claim for duty-free treatment would apply only to “three entries covered
by one Protest,” and conceding that “the Court lacks jurisdiction to grant such relief with regard to
the remaining entries in this case”).
23Again, the scope and practical effect of the Government’s motion are somewhat unclear.
Compare n.21, supra. In particular, Macclenny’s First Amended Complaint appears to limit the
company’s CBTPA claim to only those entries which were “entered on or after October 2, 2000.”
See First Amended Complaint ¶ 26. It thus appears that the Government’s motion is addressed to
entries that, in fact, are not the subject of Macclenny’s CBTPA claim as set forth in the First
Amended Complaint. Nevertheless, for the sake of clarity and in an excess of caution, the four
entries covered by Protest No. 1803-04-100056 which predate October 2, 2000 are addressed here,
as presented by the Government’s motion.
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1803-04-100056 were made after October 2, 2000, the effective date of the CBTPA as to goods from
Nicaragua. See Def.’s Brief at 2 & n.3, 9, 13. No valid CBTPA claim can be asserted as to any
entries made before that date. See id. at 9, 13; see generally Determination Under the Caribbean
Basin Trade Partnership Act, 65 Fed. Reg. 60,236 (Oct. 10, 2000) (stating that CBTPA applies only
to eligible goods imported on or after October 2, 2000).
Macclenny itself acknowledges that any CBTPA claim as to Entry Nos. WJP-0002399-9,
WJP-0002416-1, WJP-0002429-4, and WJP-0002440-1 lacks merit. 	See, e.g., Pl.’s Brief at 12
(conceding that CBTPA claim is properly “limited to the goods covered by Entry Nos. WJP-
000[2]470-8, WJP-0002492-2 and WJP-0002507-7”).24 Accordingly, as to those four entries, the
Government’s request for relief must be granted, and Macclenny’s CBTPA claim must be denied
or dismissed.
c. The Government’s Motion for Summary Judgment as to Certain Entries
All that remains of Macclenny’s CBTPA claim are the three entries covered by Protest No.
1803-04-100056 that were entered on or after October 2, 2000 – i.e., Entry Nos. WJP-0002470-8,
WJP-0002492-2, and WJP-0002507-7.25 The Government acknowledges that those three entries are
24See also Pl.’s Brief at 2 (claiming only that certain “merchandise included in Entry Nos.
WJP-0002470-8, WJP-0002492-2 and WJP-0002507-7 of Protest No. 1803-04-100056 . . .
qualif[ies] for duty-free treatment” under CBTPA); id. at 14 (arguing only that Customs should be
ordered to “reliquidate the three designated entries that qualify for duty-free treatment covered by
Protest No. 1803-04-100056 in accordance with [the CBTPA]”); id. at 16-17 (stating that Plaintiff
intended that its CBTPA claim for duty-free treatment would apply only to “three entries covered
by one Protest,” and conceding that “the Court lacks jurisdiction to grant such relief with regard to
the remaining entries in this case”).
25Entry No. WJP-0002470-8 was entered on October 10, 2000; Entry No. WJP-0002492-2
was entered on October 16, 2000; and Entry No. WJP-0002507-7 was entered on October 19, 2000.
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entitled to duty-free treatment under the United States-Caribbean Basin Trade Partnership Act, and
seeks summary judgment reliquidating them accordingly. See Def.’s Brief at 2 & n.3, 13, 29; Def.’s
Reply Brief at 3 n.4, 20; Def.’s Supp. Brief at 10. 	Not surprisingly, Macclenny concurs in the
Government’s motion. See Pl.’s Brief at 2, 3 n.1, 12-13, 14, 16-17, 32-33. 26
As discussed in section I above, eligible goods from beneficiary countries may be imported
into the United States duty-free under the CBTPA. See generally 19 U.S.C. §§ 2702-03 (listing
certain countries and goods as eligible for duty-free treatment under CBTPA). 	Nicaragua was
formally granted beneficiary status under the CBTPA as of October 2, 2000. 	See 19 U.S.C. §
2702(b) (listing Nicaragua as eligible for designation as beneficiary country under CBTPA);
Determination Under the Caribbean Basin Trade Partnership Act, 65 Fed. Reg. at 60,236 (granting
Nicaragua beneficiary status, and modifying HTSUS, effective Oct. 2, 2000).
The goods eligible for duty-free treatment under the CBTPA include merchandise classified
under HTSUS subheading 9802.00.80. See 19 U.S.C. § 2703(b)(2)(A)(i)(I). Specifically, those
“apparel articles” that are assembled in a CBTPA beneficiary country (such as Nicaragua) “from
fabrics wholly formed and cut in the United States” and imported directly into the United States
See First Amended Complaint at attached Schedule of Protests (listing entry numbers and respective
dates of entry); Def.’s Brief at 13 (same). Although both parties state that Entry No. WJP-0002507-
7 was made on October 9, 2000, the original entry papers indicate that the date of entry was actually
October 19, 2000. Whether the date was October 9, 2000 or October 19, 2000 is not material. Both
dates are after October 2, 2000, the effective date of the CBTPA as to goods from Nicaragua.
26Indeed, Macclenny now advises that it intended to assert a CBTPA claim for duty-free
treatment only as to the three specified entries. See, e.g., Pl.’s Brief at 16-17 (stating that Macclenny
intended that its CBTPA claim for duty-free treatment would apply only to “three entries covered
by one Protest,” and conceding that “the Court lacks jurisdiction to grant such relief with regard to
the remaining entries in this case”).
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under HTSUS subheading 9802.00.80 are entitled to duty-free treatment pursuant to the CBTPA.
See U.S. Note 7(b)(i), Ch. 98, Subch. II, HTSUS; see also Proclamation 7351 of October 2, 2000
to Implement the United States-Caribbean Basin Trade Partnership Act, 65 Fed. Reg. 59,329, 59,333
(Oct. 4, 2000) (modifying HTSUS to include U.S. Note 7(b)(i), Ch. 98, Subch. II, HTSUS, effective
Oct. 2, 2000).
Here, there is no dispute that Macclenny’s suit-type jackets were properly classified under
HTSUS subheading 9802.00.80. See First Amended Complaint ¶ 25; Answer and Counterclaim ¶
25. Nor is there any dispute that Macclenny’s merchandise was imported directly into the United
States from Nicaragua. See Plaintiff’s Statement of Material Facts As To Which There Are No
Genuine Issues To Be Tried (“Pl.’s Statement of Facts”) ¶ 3; Defendant’s Response to Plaintiff’s
Statement of Material Facts As To Which There Are No Genuine Issues To Be Tried (“Def.’s
Response to Pl.’s Statement of Facts”) ¶ 3. It is similarly undisputed that the goods were assembled
in Nicaragua (a beneficiary country under the CBTPA), from fabrics formed and cut in the United
States. See Pl.’s Statement of Facts ¶ 3; Def.’s Response to Pl.’s Statement of Facts ¶ 3. Finally,
there is no dispute that Entry Nos. WJP-0002470-8, WJP-0002492-2, and WJP-0002507-7 were
entered after October 2, 2000. 	See First Amended Complaint at attached Schedule of Protests
(listing dates of entry); Def.’s Brief at 13 (acknowledging that three listed entries “were made after
the effective date of the CBTPA” as to goods from Nicaragua); n.25, supra (identifying entry dates
of the three subject entries).
As such, Entry Nos. WJP-0002470-8, WJP-0002492-2, and WJP-0002507-7 satisfied the
requirements for duty-free treatment under the CBTPA. 	The Government’s motion as to the
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specified entries therefore must be granted and the entries must be reliquidated, duty-free.
2. The Appropriate Method of Appraisement
In addition to seeking summary judgment as to the three entries entitled to duty-free
treatment under the CBTPA (discussed above), the Government also seeks summary judgment
sustaining Customs’ use of transaction value to appraise all other entries at issue in this action.
Specifically, the Government contends that, although the buyer (i.e., Macclenny/BCG) and the seller
(i.e., KB) were related, the valuation statute nevertheless required appraisement based on transaction
value, because – according to the Government – “the circumstances of the sale . . . indicate[] that
the relationship . . . did not influence the price” that Macclenny/BCG paid to KB. See generally 19
U.S.C. § 1401a(b)(2)(B); Def.’s Brief at 9, 13 -20, 26, 28, 29; Def.’s Reply Brief at 1-12, 16, 20;
Def.’s Supp. Brief at 8-9, passim; Def.’s Supp. Reply Brief at 1-8. 27 For the reasons summarized
below, summary judgment must be denied.
In an effort to demonstrate that the “circumstances of the sale” test is satisfied in this case,
the Government invokes Interpretative Note 2 to 19 C.F.R. § 152.103(l)(1), asserting, in essence,
that the prices that Mr. Looby (BCG’s Chief Operating Officer) set for KB were “settled in a manner
27This is an atypical case in at least one key respect: It is Customs – not the importer – that
is advocating for appraisement based on transaction value. As the Government points out, “it is
unusual for an importer to contend that transaction value should not be applied. 	It is far more
common for an importer that is related to its supplier to provide information to the appraiser in a
quest to confirm transaction value as the appropriate methodology.” Def.’s Supp. Brief at 9 n.5; see
also Def.’s Supp. Reply Brief at 3 (reiterating “the rarity of an importer seeking to have a valuation
methodology other than transaction value applied to its goods”). 	The Government warns that
caution therefore must be exercised “in applying any situation-specific authority, including Customs
rulings or judicial decisions” in deciding this case, “unless the situation reviewed in the referenced
authority involves an importer trying to remove its transactions from appraisal under transaction
value.” See id.
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Court No. 05-00484 	Page 28
consistent with the normal pricing practices of the industry in question.” 	See 19 C.F.R. §
152.103(l)(1)(ii) (emphasis added); Def.’s Brief at 16 (quoting Interpretative Note 2); Def.’s Reply
Brief at 10 (referring to prices set “in the ‘normal’ manner for a garment assembler”); Def.’s Reply
Brief at 12 (referring to “normal pricing practices for the garment industry”).28 Thus, to
28See also Def.’s Brief at 16 (referring to “normal manner for the industry”); Def.’s Brief at
17 (referring to “normal industry practices”); Def.’s Reply Brief at 11(citing, inter alia,
Interpretative Note 2 and referring to “normal pricing practices of the industry”); Def.’s Supp. Brief
at 6 (referring to “normal pricing practices of the industry in question,” quoting Customs Valuation
Code); id. at 8 (referring to “normal pricing practices of the industry”); id. at 9 (referring, in two
places, to “normal pricing practices of the industry”); Def.’s Supp. Reply Brief at 3 (referring to
“normal pricing practices of the industry in question,” citing Interpretative Note 2); id. at 4
(referring, in two places, to “normal pricing practices”); id. at 6 (referring to “normal pricing
practices in the industry”); id. at 7 (referring to “manner [in which] prices are normally set in [the]
industry”); id. (referring to “normal pricing practices”).
At various points in its briefs, the Government frames tests or standards in other terms. See,
e.g., Def.’s Brief at 15 (asserting, in caption, that “The Evidence Establishes That the Prices
Between KB and Macclenny Were Set in the Same Manner as Prices Are Normally Set for Sales
Between Unrelated Parties”); id. at 26 (asserting that prices “were set in the same manner as prices
are set between unrelated entities”); Def.’s Reply Brief at 4 (asserting that prices “were determined
using the same method as would be employed in transactions between unrelated entities”); id. at 6
(asserting that prices “were set in the same manner as prices are set between unrelated parties”); id.
at 7 (asserting that prices were not set “differently than they would have been if the buyer and the
seller were not related”); Def.’s Supp. Brief at 6 (discussing circumstances where “the manner in
which the price was derived is essentially the same as it would be for parties that are not related”);
id. at 8 (asserting that prices “were set in the same manner as a price would have been set for
transactions between unrelated [parties]”).
These miscellaneous references conflate concepts and language in Interpretative Notes 1 and
2 other than the specific provision on which the Government here relies – that is, the provision of
Interpretative Note 2 stating that the use of transaction value is appropriate in a related party
transaction “[i]f the price has been settled in a manner consistent with the normal pricing practices
of the industry in question.” 	See, e.g., Def.’s Brief at 16 (quoting “consistent with the normal
pricing practices of the industry” test, and omitting any reference to whether “the price has been
settled in a manner consistent . . . with the way the seller settles prices to [unrelated] buyers”); Def.’s
Reply Brief at 9 (same).
According to the Government, Interpretative Note 1 – which concerns “the way in which the
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Court No. 05-00484 	Page 29
price in question was arrived at” – has no relevance to this case, because that note “applies to
situations not present here, i.e., when Customs has previously examined the relationship or already
has ‘sufficient detailed information concerning the buyer and seller to be satisfied that the
relationship did not influence the price actually paid or payable.’” See Def.’s Supp. Reply Brief at
2 n.1. 	But see Def.’s Reply Brief at 10-11 (where Government appears to rely, in part, on
Interpretative Note 1). 	Thus, to the extent that they differ materially from the standard of “the
normal pricing practices of the industry,” any of the above-listed references that relate to
consideration of “the way in which the price in question was arrived at” (or words to that effect)
miss the mark.
Similarly, some of the references listed above are variations on provisions of Interpretative
Note 2 other than the “normal industry pricing practices” test on which the Government here relies.
As the Government explains, the introductory text of Interpretative Note 2 – concerning whether a
related buyer and seller “buy from and sell to each other as if they were not related” – does not itself
set forth a test for the use of transaction value in related party sales. See Def.’s Supp. Reply Brief
at 3-4. Instead, that introductory text articulates an overall standard which can be satisfied by either
of two alternative tests set forth in Note 2: [1] whether “the price has been settled in a manner
consistent with the normal pricing practices of the industry in question” (which is the test that the
Government invokes in this case) and [2] whether “the price has been settled in a manner consistent
. . . with the way the seller settles prices for sales to buyers who are not related to him.” See id. The
introductory text of Interpretative Note 2 thus has no significance independent of the specific test
on which the Government here relies – i.e., whether “the price has been settled in a manner
consistent with the normal pricing practices of the industry in question.” And the second test set
forth in Interpretative Note 2 (i.e., whether “the price has been settled in a manner consistent . . .
with the way the seller settles prices for sales to [unrelated] buyers”) has no application here,
because the seller in this case (KB) made no sales whatsoever to buyers other Macclenny/BCG. See
What Every Member of the Trade Community Should Know About: Determining the Acceptability
of Transaction Value for Related Party Transactions (U.S. Dep’t of Homeland Security April 2007)
(“Customs Guidance on Acceptability of Transaction Value in Related Party Transactions”) at 10
(appended to Pl.’s Supp. Reply Brief) (explaining that the second test in Interpretative Note 2 is
limited to “situations where the seller sells the same merchandise to both related and unrelated
parties”).
It is further worth noting that, at several points in its briefs, the Government appears to assert
that the relevant test has two distinct components – (1) whether the prices at issue were “settled in
a manner consistent with the normal pricing practices of the industry in question” and (2) whether
the prices reflected some projected margin of profit – as if the expectation of profit were a separate
criterion, above and beyond consistency with the normal pricing practices of the industry. See, e.g.,
Def.’s Brief at 17 (indicating that the test is whether price “was set in a manner that comports with
normal industry practices and was expected to result in . . . a reasonable profit”) (emphasis added);
see also Def.’s Reply Brief at 12 (framing the test as “normal pricing practices for the garment
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prevail on its motion for summary judgment sustaining Customs’ use of transaction value here, the
Government must prove that undisputed record evidence establishes both (1) the manner in which
KB’s prices were set, and (2) “the normal pricing practices” of the garment assembly industry; and,
further, (3) the Government must demonstrate that those two are “consistent.”29
The Government fails on all counts. The evidence that the Government cites to prove how
Mr. Looby set KB’s prices is thin, at best. And the evidence of normal pricing practices in the
garment assembly industry is virtually non-existent. 	Moreover, the Government makes no real
attempt to demonstrate that the manner in which Mr. Looby set KB’s prices was consistent with
normal industry practice – which is the fundamental showing that the Government must make to
establish its entitlement to summary judgment here.
industry . . . , with some amount of profit built in once the company is a mature facility”); Def.’s
Supp. Brief at 8 (indicating that test is whether prices were “set in a manner consistent with the
normal pricing practices of the industry, and in a manner believed to be adequate to ensure recovery
of . . . a profit once KB became a mature facility”); id. at 9 (arguing that – to demonstrate that the
relationship between KB and Macclenny/BCG influenced prices – Macclenny could “demonstrate
that the price . . . was set in a manner that was not consistent with the normal pricing practices of
the industry and/or was not set in a manner that was expected to ultimately yield a profit”); id.
(indicating that test is whether price was “set in a manner consistent with the normal pricing
practices of the industry and/or with the expectation that . . . a profit will be earned”). However,
nothing in the parties’ papers supports the notion of such a two-part test (although it does not seem
far-fetched to assume that a margin of profit is inherent in the normal pricing practices of any
industry).
In sum, for purposes of the instant motion for summary judgment, the sole relevant test is
whether Mr. Looby set prices for KB “in a manner consistent with the normal pricing practices” of
the garment assembly industry.
29See generally Customs Guidance on Acceptability of Transaction Value in Related Party
Transactions at 7-8 (explaining that, to prove that transaction value is acceptable because the price
was settled in accordance with normal industry pricing practices, party “must [1] have objective
evidence of the normal pricing practices of the industry in question and [2] present evidence that the
transfer price was settled in accordance with these industry practices”).
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Court No. 05-00484 	Page 31
As to the manner in which KB’s prices were set, the Government repeatedly stresses that Mr.
Looby has “decades of price-setting experience in the men’s tailored clothing business,” and was
– as Mr. Looby put it – “fully capable of assessing a reasonable price.” See Defendant’s Statement
of Material Facts As To Which There Are No Genuine Issues To Be Tried (“Def.’s Statement of
Facts”) ¶ 24 (asserting that Looby “was experienced in setting prices for garments and was ‘fully
capable of assessing a reasonable price’”) (quoting Looby Deposition at 146); Def.’s Supp. Reply
Brief at 7.30 However, it is one thing to establish that Mr. Looby had the ability to set prices at an
appropriate level. It is quite a different matter to establish that he in fact did so here.31 The greatest
concession that the Government could extract from Mr. Looby was essentially a tautology – i.e., he
30See also, e.g., Def.’s Brief at 6 (asserting that Looby “was experienced in setting garment
prices and was ‘fully capable of assessing a reasonable price’”); Def.’s Reply Brief at 7 (asserting
that Looby “possesses significant experience in the garment industry and . . . was familiar with how
prices are set in . . . that industry,” and that Looby was “fully aware of how to determine garment
assembly prices in a manner that would ultimately earn the assembler a profit once its start-up costs
were fully amortized”); id. at 11 (asserting that “given his extensive experience in the garment
industry, Mr. Looby would know how prices are set in that industry,” and noting that Looby
“testified that he was ‘fully capable of assessing a reasonable price’ and agreed . . . that he is
‘experienced in setting prices for garments’”) (quoting Looby Deposition at 146-47).
31As discussed in greater detail below, the prices that Mr. Looby set for KB never even
covered the company’s expenses. KB operated at a loss each and every year of its existence, from
the time the company began production in 1998 until the company ceased operations in 2007. See,
e.g., Def.’s Reply Brief at 5 (implicitly acknowledging that KB “fail[ed] to earn a profit year after
year”); Pl.’s Brief at 18 (asserting that, for every year of company’s operations, “KB’s total expenses
exceeded its total income each year, resulting in a loss for each year”).
As an aside, it is worth noting that – although the entries in question here were made in
2000/2001 – both parties freely rely on information concerning Mr. Looby’s pricing practices and
KB’s operations over the entire life of the company (from 1997 to 2007). 	With just one early
exception, neither part has questioned the relevance or probity of such information. 	See Def.’s
Response to Pl.’s Statement of Facts ¶ 21 (as to certain allegations relating to Government’s
counterclaim, asserting that “since the entries at issue were made in 2000 and 2001 . . . , any figures
for 1999 are irrelevant to this action”).
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Court No. 05-00484 	Page 32
characterized the prices that he set for KB as “reasonable” because “the numerous elements in the
operating budget were reasonable.” 	See Def.’s Brief at 18 (citing, and characterizing, Looby
Deposition at 147-48) (emphases added).32 The Government’s emphasis on Mr. Looby’s knowledge
of pricing practices does little to advance its case.
The Government’s principal claim concerning KB’s prices is a broad assertion that Mr.
Looby relied on “detailed” annual budgets in determining the prices that Macclenny/BCG paid to
KB – that is, that “prices were set based upon budgets that projected the exporter’s income and
expenses and at a level that was expected to reap a profit once the exporter’s start-up costs were
fully amortized.” See Def.’s Reply Brief at 2-3 (characterizing the foregoing as the Government’s
“most relevant argument”); Def.’s Brief at 6 (asserting that “prices were based upon detailed budgets
relating to KB’s anticipated productivity and expenses”).33 But that is not saying much. On some
32As the Government explains:
Specifically, when asked what made the price “reasonable,” Mr. Looby stated “[m]y
familiarity with the labor content and my familiarity with the planned budgets and
believing that those things . . . were reasonable. . . .” He further explained that, in
his industry, a price would be “unreasonable” where “either one side or the other was
egregiously beneficial [sic] or hurt.”
Def.’s Brief at 18 (quoting Looby Deposition at 147-48). See also, e.g., Def.’s Reply Brief at 11
(arguing that Looby stated that “the KB prices he set were ‘reasonable,’” and that “[w]hen asked to
elaborate upon why he believed the prices he set to be ‘reasonable,’ Mr. Looby stated it was because
he used ‘reasonable’ budgets”) (quoting, and characterizing, Looby Deposition at 146-47); id.
(stating that Looby “testified that the prices he set for KB were based upon his ‘belief of what it
ought to end up costing and be reasonable for the labor content of the garment’”) (quoting Looby
Deposition at 146).
33See also, e.g., Def.’s Statement of Facts ¶¶ 27-30 (asserting that “prices were based upon
. . . detailed budgets” which were “intended to reflect KB’s ‘reality’ regarding anticipated expenses
and anticipated production” and included “monthly plans for production, labor costs and overhead
expense costs,” and which were “prepared for KB by BCG’s vice president of manufacturing, a
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Court No. 05-00484 	Page 33
level, every seller bases its prices on some form of budget (albeit not necessarily a formal, written
one); and the goal of basically all commercial sales activity is to turn a profit. The Government’s
assertion that KB’s prices were derived from budgets and anticipated profits at some unspecified
point in the future is thus so generic and universal as to be largely meaningless.
The evidence that the Government cites to support its generalized claim is similarly abstract
and lacking in sufficient specificity. 	Conspicuously lacking is evidence that describes with
particularity how Mr. Looby used the “detailed” annual budgets that the Government touts to derive
prices for KB. 	For example, the evidence on which the Government relies fails to adequately
explain whether/when Mr. Looby’s pricing practices were intended to yield a profit for KB34 (and,
‘quality guy and trainer,’ an engineer, and the KB plant manager”) (quoting and/or citing Looby
Deposition at 157, 159-60, 166-67; Pl.’s Responses to Def.’s First and Third Interrogatories); Def.’s
Brief at 6 (asserting that prices were based on “detailed annual budgets which included monthly
plans for production, labor costs and overhead expense costs”) (quoting Pl.’s Responses to Def.’s
First Interrogatories); id. at 17 (asserting that “prices were set based upon detailed budgets . . . that
were prepared for KB by BCG’s vice president of manufacturing, a ‘quality guy and trainer,’ an
engineer, and the KB plant manager,” and that “[e]ach year’s projected budget was intended to
reflect KB’s ‘reality’ regarding anticipated expenses and anticipated production”); id. at 19
(referring to testimony that prices were “based upon projected budgets”); id. at 20 (stating that
“KB’s prices were set based upon detailed budgets”); Def.’s Reply Brief at 2-3 (arguing that “prices
were set based upon budgets that projected the exporter’s income and expenses”); id. at 4 n.9
(referring to “the budgets upon which Mr. Looby based his pricing decisions for KB”); id. at 6
(asserting that “prices were set based upon projected budgets”); id. at 12 (asserting that “KB’s prices
were set based upon detailed projected budgets”); Def.’s Supp. Reply Brief at 7 (asserting that
“prices were set . . . based upon detailed budgets”).
34At one point in its briefs, the Government states flatly that “KB’s prices were set based
upon detailed budgets which, if accurate, would have earned KB a profit on every garment sold” –
seemingly indicating that KB’s prices reflected an expectation of profit from Day One of production.
See Def.’s Brief at 20 (emphasis added); see also id. at 17 (asserting generally, without reference
to any time frame, that prices here were set “in a manner that . . . was expected to result in the seller
realizing a reasonable profit”); id. at 19 (asserting – with no temporal limitation – that “prices were
set to produce a reasonable profit for KB based upon projected budgets”); Def.’s Supp. Brief at 9
(asserting – without reservation – that Looby set prices “with the expectation that . . . a profit
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Court No. 05-00484 	Page 34
if so, the intended margin of any such profit).35 Indeed, the Government is not clear even as to
[would] be earned”). However, that unqualified statement is at odds with the Government’s position
as articulated elsewhere in its briefs. Nor is such an assertion supported by the record evidence.
Instead, the Government’s position appears to be that the prices that Mr. Looby set were
eventually expected to yield a profit for KB, but not “in ‘the start-up years.’” See Def.’s Statement
of Facts ¶ 31 (citing Looby Deposition at 160, 169); see also, e.g., id. ¶¶ 31-32 (asserting that “it was
expected that, after the start-up phase, the price charged would . . . yield a reasonable profit,” and
that “[w]hen KB began production in 1998, it was expected to become a mature and profitable
manufacturing facility within a few years”) (citing Looby Deposition at 161, 184-85; Pl.’s Responses
to Def.’s Third Interrogatories) (emphases added); Def.’s Brief at 17-18 (asserting that “[t]here was
no anticipation of profit in ‘the start-up years,’” and that “[i]t was expected that, after the start-up
phase, the price charged would . . . yield a reasonable profit”); id. at 18 (asserting that, in 1998,
profit was expected to “come within a few years”); Def.’s Reply Brief at 2-3 (asserting that Looby
set prices “at a level that was expected to reap a profit once the exporter’s start-up costs were fully
amortized”); id. at 6 (asserting that prices reflected “the expectation that when KB became a mature
manufacturing facility, it would earn a profit”); id. at 7-8 (asserting that Looby set prices “in a
manner that would ultimately earn [KB] a profit once its start-up costs were fully amortized”); id.
at 10 (asserting that “KB was not expected to be profitable at the beginning”); id. at 12 (asserting
that prices were set with expectation that “a reasonable profit [would] be earned by [KB] after it
[became] a mature facility”); Def.’s Supp. Brief at 8 (asserting that prices were set “in a manner
believed to be adequate to ensure recovery of . . . a profit once KB became a mature facility”); id.
at 9 (asserting that Looby set prices “in a manner that was expected to ultimately yield a profit”);
Def.’s Supp. Reply Brief at 7 (asserting that prices were set “with the expectation of a profit once
KB matured beyond the start-up phase”).
In addition, it is not clear when the Government contends KB’s start-up phase was complete,
such that a profit would have been expected. For example, there is an inherent ambiguity in the
Government’s representation that “in 1998, KB was expected to become a mature manufacturing
facility and profit would come within a few years. . . . The entries at issue were made within those
first few years.” See Def.’s Brief at 18 (emphasis added); see also Def.’s Statement of Facts ¶ 33
(asserting that “[t]he entries at issue were made within the first few years of KB starting production”)
(emphasis added). The loose reference to “those first few years” can be read (in context) to indicate
that the Government contends that KB was still in its start-up phase in 2000/2001, the dates of the
entries in question. But see, e.g., id. ¶¶ 31-32 (asserting that “[w]hen KB began production in 1998,
it was expected to become a mature and profitable manufacturing facility within a few years”)
(emphasis added); see also Def.’s Brief at 23 (referring to “KB’s start-up phase ‘when little or no
production was happening’”). The record is also notably barren of evidence addressing points such
as the definition of a “start-up” phase or period, the typical duration of start-up operations in the
garment assembly industry (including, e.g., the usual period required to amortize start-up costs), and
how long it normally takes garment assembly firms to show a profit. It is, in any event, undisputed
that – over the life of the company – KB never turned a profit.
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whether/when the prices that Mr. Looby set were designed to cover KB’s costs.36 The long and the
35The Government cites no evidence quantifying in any way any profit margin that was built
into the prices that Mr. Looby set or the extent of the profit that his prices were otherwise expected
to yield. Instead, the Government refers only vaguely and generally to a “reasonable” profit – or,
even less definitively, to “some level of profit.” See, e.g., Def.’s Statement of Facts ¶ 31 (asserting
that “it was expected that, after the start-up phase, the price charged would . . . yield a reasonable
profit”) (citing Looby Deposition at 161; Pl.’s Responses to Def.’s Third Interrogatories); Def.’s
Brief at 20 (asserting that prices set by Looby were “based upon an expectation that [KB] would .
. . realize some level of profit”) (emphasis added); id. (asserting that lack of Macclenny/BCG
influence is demonstrated by fact that KB’s prices projected simply “a” profit, of unspecified
amount); see also id. at 17-18 (referring to “a reasonable profit”); id. at 19 (referring to “a
reasonable profit”); Def.’s Reply Brief at 12 (referring to “a reasonable profit”).
Again, as noted above, it is undisputed that KB never generated a profit.
36At several points in its briefs, the Government states – unequivocally, and without any
limitation as to the time frame – that Mr. Looby’s pricing practices were designed to ensure that KB
would at least “break even” (i.e., recoup all of the company’s costs) from Day One of the company’s
operations. 	See Def.’s Brief at 17 (citing Looby Deposition at 160, 169); see also id. at 20
(asserting, with no limitation, that prices set by Looby were “based upon an expectation that [KB]
would cover its expenses”); Def.’s Reply Brief at 12 (asserting, without reservation, that Looby set
KB’s prices with expectation “that all budgeted costs [would be] covered”); Def.’s Supp. Brief at
9 (asserting, without qualification, that prices were set “with the expectation that all costs will be
recovered”).
Elsewhere, however, the Government takes a conflicting position, claiming instead that the
prices set by Mr. Looby were intended to cover KB’s costs only after “start-up” operations were
concluded. See, e.g., Def.’s Statement of Facts ¶ 31 (asserting that “it was expected that, after the
start-up phase, the price charged would cover expenses”) (citing Looby Deposition at 161; Pl.’s
Responses to Def.’s Third Interrogatories); Def.’s Brief at 17-18 (asserting that “it was expected
that, after the start-up phase, the price charged would cover expenses”). It is unclear whether any
part of the confusion in the existing record results from the parties’ use of imprecise terminology,
failing to distinguish among production costs, operating costs, and other categories of costs (such
as start-up costs).
In any event, there is no dispute that, for the entirety of its nearly 10 years of operation, KB
never once turned a profit, and, in fact, consistently operated at a loss. See, e.g., Def.’s Reply Brief
at 5 (implicitly acknowledging that KB “fail[ed] to earn a profit year after year”); Pl.’s Statement
of Facts ¶ 23 (stating that “KB’s total expenses exceeded total income in each year resulting in a loss
for each year,” with no “profit of any sort”) (citing, inter alia, Looby Affidavit ¶¶ 30-31) (a
statement that the Government “denies for lack of knowledge or information,” though the
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Government also concedes that the statement is supported by Looby Affidavit ¶ 34); Pl.’s Brief at
18 (asserting that, for every year of company’s operations, “KB’s total expenses exceeded its total
income each year, resulting in a loss for each year”); id. at 22 (same); Pl.’s Reply Brief at 2 (same);
id. at 3 (same); id. at 9-10 (same); id. at 17 (same); Pl.’s Supp. Brief at 1 (same); id. at 4 (same); id.
at 5 (same).
Highlighting the facts of this case, Macclenny raises the question why – absent a buyer’s
“influence” over the seller – any seller that repeatedly failed to realize a profit on its sales (much less
continued to pile up actual losses) would not feel compelled to take action (such as by raising its
prices and/or seeking out additional customers), in an effort to, at a minimum, stanch the bleeding.
See, e.g., Pl.’s Reply Brief at 10 (arguing that, with KB consistently operating at a loss, “[l]ogic
would dictate a change . . . either an increase in prices in sales to [Macclenny/BCG] or a campaign
to find and sell to other buyers at prices more likely to realize a profit for [KB]”); see also Pl.’s Brief
at 19 (arguing that, where buyer and seller are not related, seller faced with repeated losses would
“seek[] other business with the hope of earning a profit”); id. (arguing that, given continued losses,
“if KB were not related to BCG . . . , good business sense would dictate either that KB raise[] its
prices [for] its sales to BCG or that KB find[] and sell[] to other customers at prices [yielding] a
reasonable profit”); Pl.’s Supp. Brief at 5 (arguing that “it was not consistent with industry practice
or Macclenny’s transactions with unrelated sellers for KB to continue . . . to sell to Macclenny at
prices that never recovered [KB’s] costs, without at least trying to find an alternative buyer”).
The Government makes much of the fact that there is no statutory or other authority that
restricts the use of transaction value in related party sales to only those cases where the seller has
more than one customer and/or successfully turns a profit. See, e.g., Def.’s Brief at 16-17 (arguing
that “there is no authority for the proposition that transaction value applies only when the seller
makes a profit,” and that “[n]either [19 C.F.R. § 152.103(1)] or its interpretive notes, nor any
statutory authority requires the realization of a profit for transaction value to apply to a related party
sale”); see also id. at 10 (arguing that, as a matter of law, it is irrelevant “whether a profit was
realized”); Def.’s Reply Brief at 6 (arguing that “the value statute says nothing about how many
customers a seller may have and is silent regarding a seller’s profitability”); id. at 10 (arguing that
“there is no interpretive note limiting the applicability of transaction value in related party
transactions to situations in which the seller actually realizes a profit”); id. at 12 (arguing that “it
makes no difference to a transaction value assessment whether the seller has one customer or a
thousand”); see generally Def.’s Brief at 5-6; Def.’s Reply Brief at 8-12.
Yet the mere absence of a legal requirement does not necessarily render irrelevant the fact
that KB not only never turned a profit, but operated each and every year at a loss, for a total of
roughly nine years. Moreover, while it is true that Mr. Looby raised prices once sometime between
late July 1999 and the time of the entries at issue here in 2000/2001, that price increase obviously
was not sufficient to cover KB’s costs, because – notwithstanding the increase – the company still
continued to lose money. See Def.’s Statement of Facts ¶¶ 41, 43 (noting that Looby raised prices
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“sometime after July 26, 1999” and once again “in 2005”) (citing Looby Deposition at 153-55, 200);
see also Pl.’s Brief at 21 (stating that Looby increased KB’s prices only twice in the company’s nine
years of operation – first, “for the fall season in 2000,” and then once again, in December 2005)
Def.’s Brief at 19 (essentially the same). 	In light of KB’s sustained record of losses, the
Government’s claim that further price increases were unnecessary “because dividing . . . projected
total costs by . . . projected equivalent units yields a figure quite close to the invoice price” is
curious, to say the least. See Def.’s Reply Brief at 11 n.16. In other words, if (as the Government
postulates) invoice price is equivalent to projected total costs divided by projected output, there is
obviously no profit at all – and one would assume that, in general, a potential price increase would
be one of the options on the table.
The Government maintains that, as a matter of commercial reality, “profits are not
guaranteed, even in transactions between unrelated parties” and that “it is not at all unusual for new
companies not to earn a profit – or even to fail altogether – in the first few years of existence.” See
Def.’s Brief at 20; see also id. (asserting that, because “prices for goods that have not been produced
are set based upon anticipated expenses, it is always possible that the expenses will be higher and
the expected profit will not materialize,” that “[u]nrealized profit does not, by itself, render the
circumstances of sale unusual from a business standpoint,” and that “[p]rojections can be wrong and
new businesses may have more ‘growing pains’ than anticipated”); Def.’s Reply Brief at 9-10
(asserting that “[n]o business, even one selling to unrelated customers, is guaranteed to earn a
profit,” and that “[a] seller’s lack of profitability is not necessarily a consequence of prices being
set too low, or of collusion between buyer and seller; it may just be a consequence of unanticipated
factors, such as labor costs that turn out to be higher than those that were included in the projected
budget upon which the prices were based” – although it is perhaps telling that the Government does
not address whether it is reasonable to ascribe nearly a decade’s worth of consistent losses, year after
year, to factors such as underestimated expenses or overestimated productivity).
Drawing a bright line between projected profit and the actual realization of profit, the
Government’s position seems to be that – provided that a seller’s prices to a related buyer at least
purport to reflect some allowance for profit – it is of no moment whether any profit ever really
materializes (or even whether the seller is outright hemorrhaging money, incurring massive losses
year after year after year). See, e.g., Def.’s Brief at 17 (arguing that use of transaction value in
related party sales does not require seller’s “realization of a profit,” and that it is enough if, inter
alia, the price “was expected to result in the seller making a reasonable profit”) (emphasis added);
Def.’s Reply Brief at 5 (deriding Macclenny’s argument that “when a seller . . . fails to earn a profit
year after year, . . . the relationship between the buyer and seller must have influenced the price”).
The Government contends that what is determinative in this case is that “the hope of a profit
was maintained year after year.” See Def.’s Reply Brief at 10 (emphases added). As Macclenny
suggests, however, it is a fair question whether – absent the “influence” of a related buyer – a seller
consistently operating at a loss could or would keep its doors open indefinitely (here, for nearly a
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short of the matter is that the record evidence fails to adequately explain how budgets were used to
determine the prices at issue here.
The Government points to certain testimony that describes in broad strokes the process that
was used to set the price for KB at the time the company was founded, and extrapolates from that
for subsequent years up to 2001. 	See generally Def.’s Brief at 18-19 (citing, inter alia, Looby
Deposition at 172-73, 177-78, 181-82); see also Def.’s Reply Brief at 11 n.16. But this evidence
decade). See, e.g., Pl.’s Brief at 19 (emphasizing that Government’s position is that,“[even] if BCG
and KB were not related, KB [nevertheless] would continue [to operate at a loss] for the years that
it did”); Pl.’s Supp. Brief at 5 (asserting that “it was not consistent with industry practice” for KB
to continue to sell to Macclenny/BCG at a loss for years).
The Government never stakes out a position as to how long a seller can continue making
profit-less (or losing) sales to a related buyer before the specter of the related buyer’s “influence”
is raised. Similarly, the Government never clarifies whether – to justify the use of transaction value
in a related party transaction – a seller’s projections (including projected profits, as well as, inter
alia, projected expenses and projections concerning productivity) must be reasonable and realistic.
See, e.g., Def.’s Reply Brief at 10 (emphasizing the “hope” and “expectation” that prices set for KB
would result in profit, with no scrutiny of the reasonableness of such hopes and expectations). It is
also unclear how soon, according to the Government, a seller reasonably should be expected to
reflect a projected margin of profit in its prices (e.g., how long “start-up” operations can extend).
Cf. n.34, supra (discussing, inter alia, absence of evidence concerning typical duration of start-up
period in garment assembly industry and how long it normally takes garment assembly firms to
show profit).
Finally, as discussed above, the Government fails to grapple in any way with the meaning
of the term “reasonable” profit. See, e.g., Def.’s Brief at 17 (asserting that absence of influence is
indicated where, inter alia, prices reflected expectation that they would “result in the seller realizing
a reasonable profit”) (emphasis added). Further, as discussed above, at some points the Government
seems to contend that a related buyer’s influence is demonstrated only where the seller’s prices
incorporate no projected profit margin whatsoever. See, e.g., id. at 20 (indicating that there is no
influence in a related party transaction if seller’s prices reflect even “some level of profit”)
(emphasis added); id. (asserting that lack of Macclenny/BCG influence is demonstrated by fact that
KB’s prices projected simply “a” profit, of unspecified amount). At least at first blush, however,
it would seem that a related buyer’s influence over a seller logically could be evidenced by a profit
margin that is even just slightly lower than would otherwise be the case. 	It is unclear why a
wholesale absence of profit margin should be required to prove influence.
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too is of limited value. It says little more than that price “was determined by dividing the total
projected costs by the budgeted number of units to be produced and then possibly rounding up or
down 5-10 cents.” See Def.’s Brief at 18 (citing Looby Deposition at 173, 177) (emphasis added).
As such, the evidence is not definitive even as to whether or not prices for any particular year
reflected any adjustment to the product of the total projected costs divided by the number of units
(i.e., the figure was “possibly” adjusted), much less the direction (i.e., “up or down”) or extent (i.e.,
“5-10 cents”) of any such adjustment. Nor does the Government cite any evidence explaining the
basis for determining whether or not to make such an adjustment (and, if so, the amount of that
adjustment).37
37As part of its case on the manner in which KB’s prices were set, the Government also relies
on a September 2001 letter from Macclenny’s former counsel (now deceased) stating that, in 1999,
“KB, in its startup phase, decided on the unit prices for the imported wool jackets after arms’ length
negotiations with [Macclenny/BCG].” See Letter to Customs from Counsel for Macclenny (Sept.
27, 2001) (Def.’s Brief, Exh. A at 2); Def.’s Brief at 17 (asserting that “Macclenny’s own attorney
advised Customs that KB’s prices . . . had been negotiated ‘at arm’s length,’” and that “[t]en years
later, this statement was confirmed by the person primarily responsible for setting KB’s prices”)
(citing, inter alia, Looby Deposition at 162-63); Def.’s Reply Brief at 6-7 (same); see also Def.’s
Brief at 9 (asserting that, “as confirmed by [Mr. Looby], the transfer price between the parties was
derived at arm’s length”); Def.’s Supp. Brief at 4 n.3 (same).
The parties quarrel about the context and meaning of the letter’s reference to “arms’ length
negotiations.” See Pl.’s Supp. Brief at 8-9; Pl.’s Supp. Reply Brief at 4; Def.’s Supp. Reply Brief
at 5. But that statement in the letter is “conclusory,” and is not corroborated – in fact, is arguably
contradicted – by other record evidence. 	Under these circumstances, the statement merits little
weight, particularly at the summary judgment stage. 	See generally Customs Guidance on
Acceptability of Transaction Value in Related Party Transactions at 10 (advising that Customs
“often rejects circumstances of sale claims because the allegations are conclusory and not supported
by evidence”); id. (stating that circumstances of sale claims will be rejected when party “alleges that
the transfer price [was] negotiated at arm’s length, but does not submit any evidence, such as
correspondence between the parties, that reflects such negotiation”).
Another major point of contention between the parties is the significance of the fact that
prices were never open to negotiation between KB and Macclenny/BCG; nor were prices ever the
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subject of any offer/counter-offer process. See, e.g., Def.’s Supp. Brief at 8 (conceding that “prices
were not freely negotiated” between Macclenny/BCG and KB); Def.’s Supp. Reply Brief at 7
(admitting that “there was no actual back and forth negotiation between KB and Macclenny/BCG”);
[Def.’s] Response to Court’s Letter Request of November 22, 2013 at 2 (acknowledging that “the
price was not freely negotiated between Macclenny/BCG and KB”); Looby Affidavit at ¶¶ 22-23
(attesting that prices were subject to negotiation between Macclenny/BCG and garment assembly
contractors in Dominican Republic, Bulgaria, and Pacific Rim); Pl.’s Brief at 5 (contrasting “the
offers and counteroffers and negotiations” between Macclenny/BCG and its contractors in the
Dominican Republic, Bulgaria, and the Pacific Rim with Macclenny/BCG’s practice vis-a-vis KB);
id. at 21 (same); id. at 28 (same); id. at 32 (same); Pl.’s Reply Brief at 2 (asserting that KB’s prices
“were not determined as a result of arm’s length negotiation between the buyer and the seller in a
manner normally conducted in the trade”); id. at 3 (same); id. at 3-4 (arguing that KB prices were
not “voluntarily negotiated and agreed upon, and accepted by both the buyer and the seller”); id. at
7 (asserting that, in this case, sales did not “result from an arm’s length agreement between the buyer
and the seller,” and that KB was not free to “accept or reject the terms of an offer or counteroffer
. . . [or to] engage in activities that reflect the pressures of the marketplace”); id. at 9 (stating that
“Mr. Looby decided [KB’s] prices on his own without any negotiations with KB personnel,” and
that KB’s prices were set “with no negotiation at all”); id. at 10 (arguing that, “[i]n an arm’s length
transaction, two parties, each acting in his or her own interest and behalf, negotiate[] to arrive at an
agreed upon price,” but “[t]hat did not happen here”); id. at 17 (stating, inter alia, that KB prices
“were not set by an agreement between the buyer and the seller and did not result from arm’s length
negotiations between the buyer and seller”); Pl.’s Supp. Brief at 4 (asserting that “KB did not make
its own pricing decisions or its own decisions whether to accept or reject” Macclenny/BCG orders);
id. at 5 (arguing that “prices between KB and Macclenny” were set very differently from prices that
Macclenny paid to “unrelated suppliers”); Pl.’s Supp. Reply Brief at 4 (emphasizing that “the
government acknowledges that in this case ‘the prices were not freely negotiated between the buyer
and seller’”).
Macclenny paints the lack of negotiations between KB and Macclenny/BCG, and the absence
of any exchanges of offers and counter-offers, as damning evidence against the Government. The
Government counters that the prices that Macclenny/BCG paid to other (unrelated) contractors were
not always subject to negotiation, noting that Macclenny/BCG occasionally “dictated” prices to
contractors other than KB. See, e.g., Def.’s Brief at 5 (stating that “[a]t times, Macclenny/BCG
would tell X-Cell [the Dominican garment assembly contractor] the price it was willing to pay,
usually for seasonal items,” and that Macclenny/BCG would “sometimes tell its manufacturers [i.e.,
contractors] what it would pay for a given product”); id. at 16 (same); Def.’s Reply Brief at 7 (citing
Looby Deposition at 115, and asserting that Macclenny/BCG did not negotiate prices with other
garment assembly contractors); see also Def.’s Brief at 20 (asserting that “it is not unusual for a
buyer to dictate a price to a seller for particular items”); cf. Def.’s Supp. Reply Brief at 7 (arguing,
inter alia, that – although “there was no actual back and forth negotiation between KB and
Macclenny/BCG” – “negotiations are not a specific requirement of Interpretive Note 2”).
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Customs itself has cautioned that application of the circumstances of the sale test requires
consideration of “whether there is sufficient evidence to establish the alleged circumstances of the
sale.” See What Every Member of the Trade Community Should Know About: Determining the
Acceptability of Transaction Value for Related Party Transactions (U.S. Dep’t of Homeland
Security April 2007) (“Customs Guidance on Acceptability of Transaction Value in Related Party
Transactions”) at 9 (appended to Pl.’s Supp. Reply Brief) (emphasis added); see also id. at 10
(emphasizing requirement of “a thorough explanation of the circumstances surrounding the sale,”
including “supporting evidence”) (emphasis added); id. (explaining that circumstances of sale claims
are rejected when assertions of fact “are . . . not supported by evidence”). Similarly, Customs has
emphasized that – where, as here, a party seeks to prove that transaction value is acceptable because
It is, however, undisputed that – whether or not Macclenny/BCG negotiated prices with its
garment assembly contractors other than KB – Macclenny/BCG’s other contractors were free to
reject orders from the company, if, for example, the price “dictated” by Macclenny/BCG was too
low. See, e.g., Def.’s Brief at 5 (stating that, when Macclenny/BCG sought to “dictate” a price to
the Dominican garment assembly contractor X-Cell, “X-Cell would decide . . . whether to produce
the goods at the dictated price”); id. at 20 (asserting that “[w]hether [a] seller agrees to a dictated
price or gives up [a] sale is a function of whether it believes that it can produce the product at the
[dictated] price and still expect to make some profit”); Pl.’s Supp. Brief at 5 (noting that “when
Macclenny made offers to unrelated sellers,” the sellers decided whether “to accept or reject the
offer”). It is similarly undisputed that – unlike the other contractors – KB had no power to turn
down any order from Macclenny/BCG. Quite to the contrary, KB was required to fulfill all orders
from Macclenny/BCG and to do so at the price set by Mr. Looby. See [Def.’s] Response to Court’s
Letter Request of November 22, 2013 (acknowledging that “the record evidence . . . indicates that
KB was not free either to set its own price or to refuse to produce merchandise at the price specified”
by Macclenny/BCG); Pl.’s Supp. Brief at 4 (stating that KB could not “make . . . its own decisions
whether to accept or reject” Macclenny/BCG’s orders); Letter to Court from Counsel for Plaintiff
(Nov. 26, 2013) (stating that “KB was obligated to deliver to Macclenny/BCG all merchandise
ordered at the price specified by Macclenny/BCG and KB was not free to refuse to produce
merchandise for Macclenny/BCG at the price specified by Macclenny/BCG”). The Government
never directly addresses whether this particular aspect of the relationship between KB and
Macclenny/BCG was, in the words of Interpretative Note 2, “consistent with the normal pricing
practices” of the garment assembly industry.
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prices were settled in accordance with normal industry pricing practices – “evidence that the . . .
price was settled in accordance with . . . industry practices” is required. See id. at 8-9. On the
existing record, the evidence is not sufficiently substantial to allow a reasonable person to
understand at an appropriate level of detail the manner in which Mr. Looby set KB’s prices. Nor
is the evidence sufficiently substantial and detailed to permit comparison of the manner in which
KB’s prices were set to the normal pricing practices of the garment assembly industry. The evidence
on KB’s prices is simply insufficient to support summary judgment.
The Government’s case on the other side of the equation – “the normal pricing practices of
the [garment assembly] industry” – is even weaker than the Government’s case on the manner in
which KB’s prices were set. 38 The Government points to relatively little evidence concerning the
pricing practices of entities other than KB. And the quantum of evidence is by no means the only
shortcoming in the Government’s case. 	The evidence that the Government cites also is overly
general. More importantly, none of the evidence cited by the Government specifically addresses the
garment assembly industry. Most critically, the Government fails to demonstrate that Mr. Looby’s
38Nowhere in its briefs does the Government discretely and succinctly outline the evidence
which it contends constitutes proof of the normal pricing practices of the garment assembly industry.
As a result, the court was forced to comb the Government’s papers in an effort to identify for itself
any such potential evidence. 	To a somewhat lesser extent, the court had to undertake a similar
exercise to identify any evidence that the Government might arguably consider to be evidence of
KB’s pricing practices. In the future, to the extent that the parties continue to focus on the “normal
industry pricing practices” test, they would be well advised to structure their presentations so as to
clearly identify and address Mr. Looby’s pricing practices vis-a-vis KB, and to separately identify
and address the normal pricing practices of the garment assembly industry – and, in addition, to
analyze and explain the extent to which those two parallel (or differ from) one another. Further, to
the extent that either or both of the parties elects to again move for summary judgment, the parties
should give careful consideration to the specific allocation of the burdens of production and
persuasion on such motions. See generally, e.g., 11 Moore’s Federal Practice § 56.40-56.42, pp. 56-
101-56-119 (analyzing “Burdens of Production and Persuasion” at summary judgment stage).
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practices in setting prices for KB parallel the pricing practices of the garment assembly industry as
a whole.39
As noted above, the Government’s central thesis as to KB’s pricing is that Mr. Looby set
39At various points in its briefs, the Government goes beyond pricing practices in the garment
assembly industry, which is the specific industry at issue here. Compare Def.’s Reply Brief at 10
(referring to prices set “in the ‘normal’ manner for a garment assembler”) (emphasis added); id. at
12 (referring to “normal pricing practices for the garment industry”) (emphasis added). In some
instances, for example, the Government alludes to pricing practices in other sectors of the fashion
apparel business, such as the manner in which Macclenny/BCG set its prices for sales to its own
customers – i.e., the prices for Macclenny/BCG’s sales of merchandise to retailers such as Sears and
JCPenney. 	See, e.g., Def.’s Brief at 5-6 (stating that “BCG’s customers [i.e., retailers] would
sometimes tell BCG what price they were willing to pay”); id. at 16 (stating that “BCG customers
sometimes dictated the prices they were willing to pay”).
At other points, the Government makes sweeping representations about pricing practices
which are not specific to any industry at all – and which are not supported by citations to record
evidence, to boot. See, e.g., Def.’s Brief at 20 (asserting, inter alia, that “it is not unusual for a
buyer to dictate a price to a seller for particular items,” and that “[w]hether the seller agrees to a
dictated price . . . is a function of whether it believes that it can produce the product at the [dictated]
price and still expect to make some profit”; stating that “[s]ince prices for goods that have not been
produced are set based upon anticipated expenses, it is always possible that the expenses will be
higher and the expected profit will not materialize”; claiming that “[u]nrealized profit” is not
“unusual from a business standpoint”; arguing that “[p]rojections can be wrong and new businesses
may have more ‘growing pains’ than anticipated,” and that “profits are not guaranteed, even in
transactions between unrelated parties”); Def.’s Reply Brief at 9-10 (asserting that “[n]o business,
not even one selling to unrelated customers, is guaranteed to earn a profit” and that “it is not unusual
for new companies not to earn a profit – or even to fail altogether – in the first few years of
existence”); id. at 10 (asserting that “[a] seller’s lack of profitability is not necessarily a consequence
of prices being set too low, or of collusion between buyer and seller,” but instead “may just be a
consequence of unanticipated factors, such as labor costs that turn out to be higher than those that
were included in the projected budget upon which the prices were based”); id. at 10 n.4 (citing
article in Harvard Business School publication for the blanket proposition that “the failure rate for
new business[es] is 30-40 percent,” with no indication concerning the statistics for companies in the
specific industry at issue here).
All such evidence would appear to be irrelevant. Neither party has argued that the relevant
pricing practices are other than those of KB and the garment assembly industry of which KB was
a part.
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prices based on “detailed” budgets “that projected the exporter’s income and expenses and at a level
that was expected to reap a profit once the exporter’s start-up costs were fully amortized.” See
Def.’s Brief at 6; Def.’s Reply Brief at 2-3. As discussed above, however, the Government has not
adduced sufficient evidence to support and flesh out in the requisite detail the manner in which Mr.
Looby derived KB’s prices from the annual budgets. Moreover, even if the Government had spelled
out in detail how Mr. Looby used budgets to set prices, the Government points to no evidence to
demonstrate that the normal pricing practices of the garment assembly industry are consistent with
what Mr. Looby did here.
In its reply brief, the Government does assert that Mr. Looby testified that “normal pricing
practices for the garment industry involve the preparation and consideration of budgets that project
costs and output for a given time period, with some amount of profit built in once the company is
a mature facility.” Def.’s Reply Brief at 12. To the same effect, the Government elsewhere claims
that Mr. Looby testified that it is normal industry practice to set prices “based upon detailed budgets
. . . with the expectation of a profit once [a facility] mature[s] beyond the start-up phase.” Def.’s
Supp. Reply Brief at 7. It is telling, however, that the Government proffers no citations to the record
to support those assertions. Scrutiny of both Mr. Looby’s affidavit and his deposition reveals that
he never made any such statements.40 In any event, testimony to such broad effect – referring, for
40The only even arguably supporting evidence that is cited in the Government’s briefs is a
reference to Mr. Looby’s testimony that “pricing by a facility such as X-Cell [the Dominican
garment assembly contractor] in a ‘perfect world’ would be based upon a budget that considers the
factory’s potential output and expenses (e.g., the support staff needed for the expected output,
overhead expenses, electricity, direct labor, etc.).” See Def.’s Brief at 5 (citing and characterizing
Looby Deposition at 134-35). 	However, particularly when read in context, the actual cited
testimony does not even profess to describe pricing practices in the garment assembly industry as
a whole. 	Moreover, the testimony is much too basic and lacking in specificity to serve as the
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example, to “a profit” or to “some amount of profit,” as well as to the (unquantified) time needed
to allow a plant to become “a mature facility” – would be much too simplistic and lacking in detail
to constitute the requisite proof of normal pricing practices in the industry.
As such, just as the Government has failed to compile the evidence needed to properly
substantiate its position that Mr. Looby set KB’s prices based on budgets that projected some margin
of profit, the Government has similarly failed to elicit the requisite evidence to establish that such
a procedure is consistent with normal pricing practices in the garment assembly industry.
The Government cites some other evidence that relates to the pricing practices of entities
other than KB. But that evidence also fails to carry the day.
For example, in several places the Government refers to Mr. Looby’s testimony that
“everyone [he] ha[s] ever worked with” has “assessed their ‘cost per standard allowed minute
[SAM],’ and [done] an analysis on the particular product to come up with a target price.” See Def.’s
Brief at 4 (citing and quoting Looby Deposition at 112-14); see also Def.’s Reply Brief at 11
(asserting that “Mr. Looby testified that ‘everybody’ he has ever worked with has based their prices
required evidence of industry practice. Instead, the testimony is more in the vein of a primer for a
layperson – an introduction to some very elementary pricing principles, set forth in somewhat
abstract and theoretical terms (as reinforced by Mr. Looby’s use of the qualifier “in [a] perfect
world”). 	Further, notwithstanding the Government’s reference to “a facility such as X-Cell,” a
review of the transcript reveals that the cited testimony referred specifically (and only) to X-Cell.
See Looby Deposition at 133 (confirming that Looby is “talking about X-Cell” in particular). And
even as to X-Cell, Mr. Looby candidly conceded that he has no direct, personal knowledge of that
company’s pricing practices. See id. at 114 (stating that X-Cell “never told [him] how they [set
prices]”).
Significantly, in the course of his deposition, the Government sought to press Mr. Looby as
to whether the pricing practices that he described were standard in the industry. 	Mr. Looby
demurred: “I mean, how would I know?” See Looby Deposition at 174.
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on anticipated costs,” citing Looby Deposition at 114).41 Once again, however, such testimony is
much too general to serve as proof of normal pricing practices in the garment assembly industry.
In addition, the testimony is limited on its face to “everyone [Mr. Looby] has ever worked with.”
The testimony thus does not even purport to be a considered attestation concerning pricing practices
in the garment assembly industry as a whole.42 Further, the testimony refers to setting a “target
price” for each individual “particular product.” But nowhere does the Government explain how that
41“Standard Allowed Minute” (“SAM”) is a unit of measurement used in industrial
engineering to quantify the labor effort exerted in completing a specific task. Generally speaking,
the number of standard allowed minutes is the amount of time that it takes an average worker,
expending average effort and using average skills, to complete a particular operation (or here, for
example, to assemble some particular garment). See generally Looby Deposition at 149-50; Looby
Affidavit ¶ 31; Michael Armstrong, A Handbook of Management Techniques 725 (3d ed. 2001).
42More generally, it is far from clear that Mr. Looby is competent and qualified to testify to
normal pricing practices in the garment assembly industry. 	As noted above, he personally
disclaimed the necessary knowledge. See n.40, supra.
As a representative of Macclenny/BCG (which is, in this context, a buyer), Mr. Looby is by
no means necessarily privy to the details of how any particular garment assembly firms (i.e., sellers)
set their prices, much less the normal pricing practices of the garment assembly industry as a whole.
See, e.g., Looby Deposition at 114 (acknowledging that he lacks any personal, first-hand knowledge
as to how X-Cell – the Dominican garment assembly contractor – set its prices). 	Moreover,
according to his deposition, Mr. Looby has “only worked three places in [his] life,” including one
firm prior to his employment at BCG (and its predecessor) and the firm where he was employed at
the time of his deposition. See id. at 138; Looby Affidavit ¶¶ 1-4. There is no indication in the
record that either Mr. Looby’s first employer or his employer at the time of his deposition were
garment assembly companies. Indeed, the evidence suggests that they were not. See, e.g., Looby
Deposition at 136 (stating that “[t]he company that [Mr. Looby] was with for [his] first 21 years
really made everything themselves”); id. at 16, 21 (describing the businesses of Looby’s employers);
Looby Affidavit ¶¶ 2, 4 (same). But even assuming arguendo that both were garment assembly
companies, and assuming that Mr. Looby had knowledge of their pricing practices, that knowledge
would either significantly pre-date or post-date the dates of the entries at issue here, and thus could
hardly be deemed contemporaneous. See id. ¶¶ 1, 3-4 (indicating that Looby worked for his first
employer from 1990-1991, and that his post-BCG employment began in 2007). Even more to the
point, it is doubtful that evidence concerning the pricing practices of only two garment assembly
companies could suffice to prove industry-wide practice.
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concept relates to the Government’s central thesis – that prices are based on annual budgets,
discussed above. 43
Finally, the Government also spends a page or so summarizing certain testimony by Mr.
Looby concerning the pricing practices of X-Cell, Macclenny/BCG’s Dominican garment assembly
contractor. See generally Def.’s Brief at 4-5 (asserting, inter alia, that “the prices [that X-Cell]
charged to Macclenny [were] determined by the labor costs and depended upon the construction
requirements,” citing and characterizing Looby Deposition at 112-14; also citing Looby Deposition
at 116-23, 130-35).44 But, by definition, that testimony concerns X-Cell, not the garment assembly
industry in general.45 Further, the testimony is much too conceptual and is lacking in specificity and
detail. Significantly, among other deficiencies, the testimony omits any discussion of profit margins.
Accordingly, like the other evidence outlined above, Mr. Looby’s testimony concerning X-Cell’s
pricing practices too cannot constitute the proof of the normal pricing practices of the garment
assembly industry that is required to make the Government’s case.
Customs has spoken clearly on this matter: To prove that transaction value is acceptable
43Similarly, Mr. Looby testified that it was “not uncommon” for X-Cell, the Dominican
garment assembly contractor, to be called upon to set a price for a particular item during the course
of a season. See Looby Deposition at 131-32. The Government makes no attempt to square that
testimony with its position that, industry-wide, garment assembly firms set prices based on annual
budgets.
44See also, e.g., Def.’s Brief at 16 (asserting that Macclenny/BCG “sometimes dictated prices
to X-Cell”); id. at 20 (asserting that X-Cell’s prices were “based upon an expectation that the seller
would cover its expenses and realize some level of profit”); id. at 26 (referring to the manner in
which “prices [were] set . . . between X-Cell and Macclenny”); Def.’s Reply Brief at 7 (asserting
that “the prices charged by . . . X-Cell[] depended upon construction requirements”).
45As noted above, Mr. Looby candidly acknowledged that he has no personal knowledge of
X-Cell’s pricing practices. See, e.g., Looby Deposition at 114.
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because prices were settled in accordance with normal industry pricing practices, “objective
evidence of the normal pricing practices of the industry in question is required,” together with “a
thorough explanation of the circumstances surrounding the sale” and “an explanation of why . . .
such circumstances establish that the relationship did not influence the price.” 	See Customs
Guidance on Acceptability of Transaction Value in Related Party Transactions at 7-8, 10 (emphases
added); see also id. at 10 (explaining that circumstances of sale claims are rejected when “the
allegations are conclusory and not supported by evidence”).
Much as the record here includes too little evidence documenting how KB’s prices were set,
so too the record includes essentially no evidence (“objective” or otherwise)46 and little explanation
46Macclenny zeroes in on the language in the Customs publication stating that “objective
evidence of the normal pricing practices of the industry in question is required” where a party’s
claim that transaction value is acceptable is based on consistency with normal industry pricing
practices. 	See Customs Guidance on Acceptability of Transaction Value in Related Party
Transactions at 7-8 (emphasis added); Pl.’s Supp. Reply Brief at 2-3. Criticizing the Government’s
evidence here as “subjective,” Macclenny pointedly observes that – “[a]s the only illustration of
objective evidence” – the Customs publication cites a Headquarters Ruling Letter in which the
agency accepted as the requisite “objective evidence” of normal industry pricing practices proof that
the price in question “was defined with reference to prices published in a trade journal (the posted
price) and other buyers and sellers commonly used the posted price as the basis of contract prices.”
See Customs Guidance on Acceptability of Transaction Value in Related Party Transactions at 8
(discussing HQ 542261 (March 11, 1981)); Pl.’s Supp. Reply Brief at 2; see also Pl.’s Supp. Brief
at 3 (discussing HQ 542261, suggesting that the “normal industry pricing practices” test “could be
satisfied, for example, if there is an industry or company practice of setting contract prices by
reference to a ‘posted price’ reflecting the prevailing market price for a commodity, as compiled and
published by a trade [group],” and citing U.C.C. § 2-305(1)(c) (2013) (referring to “contracts in
which ‘the price is . . . fixed in terms of some agreed market or other standard as set or recorded by
a third person or agency . . . .’”)).
Macclenny contends that the Government cannot possibly prevail on its “normal industry
pricing practices” theory because “the price between KB and Macclenny was not set in terms of any
agreed market price, posted price, or other independent standard that could objectively show that
[the] relationship [between the buyer and the seller] d[id] not influence the price.” See Pl.’s Supp.
Brief at 5; see also Def.’s Supp. Reply Brief at 7 (conceding that evidence does not show that KB’s
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(“thorough” or not) of the “normal pricing practices” of the garment assembly industry. Certainly
the Government has not established that KB’s prices were set in accordance with the industry’s
normal pricing practices, as Interpretative Note 2 would require. See 19 C.F.R. § 152.103(l)(1)(ii).
Customs has underscored that appraisement based on transaction value is not permitted in
a related party transaction absent “sufficient information” to demonstrate satisfaction of either the
circumstances of the sale test or the test values. 	See Customs Guidance on Acceptability of
Transaction Value in Related Party Transactions at 17. 	The evidence that the Government has
marshaled to date is decidedly insufficient to support the use of transaction value here. On both the
facts and the law, the Government’s motion for summary judgment sustaining Customs’ use of
transaction value therefore must be denied.47
prices “related to any ‘agreed market price’ or ‘posted price’”). The Government “do[es] not dispute
that the ‘posted’ market price described in [HQ 542261] provided an acceptable means of
determining that the price paid was consistent with normal pricing practices in the industry.” See
id. at 6. But, on the other hand, the Government maintains that such “‘posted prices’ are not the only
means by which [Interpretative Note 2’s ‘normal industry pricing practices’ test] can be satisfied.”
Id. 	And the Government further argues that KB’s prices in fact were “set by an independent
standard,” in a manner “consistent with normal pricing practices” in the industry. Id. The denial
of the Government’s motion for summary judgment on the grounds set forth above obviates any
need to give further consideration to the parties’ arguments on this point at this time.
47Besides seeking summary judgment sustaining Customs’ use of transaction value to
appraise the merchandise, the Government also requests the entry of summary judgment on its
counterclaim for additional duties reflecting certain costs that were not included at the time the
entries at issue were liquidated. See Def.’s Brief at 9, 20-26, 29; Def.’s Reply Brief at 12-15, 20-21;
Def.’s Supp. Brief at 10. Because the Government’s counterclaim is contingent on a determination
sustaining the use of transaction value, summary judgment as to the counterclaim also must be
denied.
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B. Macclenny’s Motion for Summary Judgment
Macclenny’s motion for summary judgment is similarly lacking in merit. Macclenny seeks
summary judgment on its claim that all entries at issue should have been appraised based on
deductive value, with the exception of the three entries which are entitled to duty-free treatment
under the CBTPA. See generally Pl.’s Brief at 2, 13-15, 17-25, 28-31, 32; Pl.’s Reply Brief at 1-11,
17-18; Pl.’s Supp. Brief at 1-10; Pl.’s Supp. Reply Brief at 1-4; section III.A.1.c, supra (granting
Government’s motion for summary judgment as to three entries entitled to duty-free treatment under
the CBTPA).
However, the valuation statute permits Customs to appraise merchandise based on deductive
value only if transaction value cannot be used. See 19 U.S.C. § 1401a(a); section I, supra. The
statute thus requires the use of transaction value even where (as here) the buyer and the seller are
related, provided that “the circumstances of the sale . . . indicate[] that the relationship . . . did not
influence the price” or, alternatively, that the transaction value “closely approximates” either of the
two test values set forth in the statute – that is, that the transaction value closely approximates either
(i) the transaction value of identical or similar merchandise in sales to unrelated buyers in the U.S.
or (ii) the deductive value or the computed value for identical or similar merchandise. See 19 U.S.C.
§ 1401a(b)(2)(B)(i)-(ii).48
As detailed above, the Government thus far has failed to justify the use of transaction value
based on the “circumstances of the sale.” Whether or not it is possible for the Government to do so
48The statute further requires that the test value used for comparison “relate[] to merchandise
that was exported to the United States at or about the same time” as the merchandise at issue. See
19 U.S.C. § 1401a(b)(2)(B).
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remains an open question. 	See section III.A.2, supra. 	But, in any event, quite apart from the
“circumstances of the sale” test, neither party has yet sought to make a showing as to whether or not
the transaction value closely approximates the deductive value or the computed value for identical
or similar merchandise – the second of the two “test values” set forth in the statute. See 19 U.S.C.
§ 1401a(b)(2)(B)(ii); see generally Def.’s Brief at 26-27 (emphasizing that, even if “circumstances
of the sale” test is not satisfied, statutory test values must be considered before determination can
be made concerning appraisement using transaction value); Def.’s Reply Brief at 16-17 (same). 49
Macclenny attempts to argue that, by seeking summary judgment based solely on the
circumstances of the sale test, the Government has waived the opportunity to seek to make a case
for the use of transaction value based on the statutory test values. See Pl.’s Brief at 29 (noting that
Government “has not offered any proof to establish a test value acceptable as deductive value or
under computed value,” and asserting that “[i]f the [Government] seeks to show the accepta[bility]
of a transaction value because the appraised values closely approximate test values . . . , then it was
[the Government’s] burden to offer evidence accordingly”). However, Macclenny cites no authority
49As explained above, at the relevant time, KB was the only seller in Nicaragua of the type
of merchandise at issue here, and KB did not sell to unrelated buyers. See section I, supra. Thus,
there are no sales of “identical or similar merchandise” to “unrelated buyers in the United States”
to serve as a basis for comparison for purposes of the first test value set forth in the statute. See 19
U.S.C. § 1401a(b)(2)(B)(i). The parties therefore agree that the only relevant test value here is the
second one – i.e., whether the transaction value closely approximates the deductive value or the
computed value for identical or similar merchandise. See 19 U.S.C. § 1401a(b)(2)(B)(ii); Def.’s
Brief at 27 (explaining that, in light of facts of this case, “the test set forth in ‘(i)’ cannot be
applied”); Pl.’s Brief at 23 n.11 (noting that first statutory test value is not applicable, “because the
record shows that KB was the only producer of men’s tailored clothing in Nicaragua . . . all of which
was shipped to Macclenny”); Pl.’s Reply Brief at 13-14 (explaining that “there were no sales of
identical or similar merchandise made to unrelated U.S. buyers upon which a transaction value of
identical or similar merchandise may be predicated”).
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to support this novel application of the doctrine of waiver. 	Nor can Macclenny do so. 	The
Government was under no obligation to address both the circumstances of the sale test and the test
values in its motion for summary judgment. See generally, e.g., 11 Moore’s Federal Practice §
56.122, pp. 56-307-56-310 (discussing “Partial Summary Judgments,” and explaining, inter alia,
that “summary judgment may be requested not only as to an entire case, or as to a complete claim
or defense, but also as to parts of claims or defenses”); id. § 56.121[1][a], pp. 56-299-56-300
(captioned “Multiple [Summary Judgment] Motions on Different Grounds Should Not Be
Disfavored”).50
The bottom line is that – unless and until it has been determined that the use of transaction
value is not mandated by either the circumstances of the sale test or the statutory test values – the
statute simply does not permit appraisement based on deductive value, which is the result that
Macclenny advocates. Macclenny’s motion for summary judgment therefore must be denied.
IV. Conclusion
For the reasons set forth above, the Government’s motion to dismiss for lack of jurisdiction
Macclenny’s claim under the United States-Caribbean Basin Trade Partnership Act (“CBTPA”) as
to all entries other than those covered by Protest No. 1803-04-100056 must be granted. 	The
Government’s motion seeking dismissal or denial of Macclenny’s CBTPA claim with respect to the
50Macclenny devotes most of its ink on the test values issue to arguing that a remand to
Customs is not appropriate. See, e.g., Pl.’s Brief at 13-14, 15, 18 n.8, 22-25, 32; Pl.’s Reply Brief
at 12-14. Macclenny thus focuses on a narrow question of procedure, and tries to gloss over the
critical underlying point of substantive law – specifically, Customs’ statutory obligation to appraise
merchandise based on its transaction value, even where the buyer and the seller are related, if either
of the two tests set forth in 19 U.S.C. § 1401a(b)(2)(B) is satisfied.
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four entries covered by Protest No. 1803-04-100056 which were made before October 2, 2000
similarly must be granted. As to the three specified entries that are subject to the CBTPA (Entry
Nos. WJP-0002470-8, WJP-0002492-2, and WJP-0002507-7), the Government’s motion for
summary judgment must be granted. On the other hand, both the Government’s motion for summary
judgment concerning the proper method of appraisement of all remaining entries and Macclenny’s
cross-motion for summary judgment on the same issue must be denied.
An order will enter accordingly.
/s/ Delissa Ridgway
Delissa A. Ridgway
Judge
Dated: January 	2014
New York, New York
22,
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