Constitutionality of Cost-Insurance-Freight Basis of Customs Valuation

November 6, 1978

78-59 MEMORANDUM OPINION FOR THE SPECIAL

REPRESENTATIVE FOR TRADE

NEGOTIATIONS

Constitutional Law—U.S. Tariffs and Customs—

Procedures for Levying ad valorem Rates of

Customs Duties—Cost-Insurance-Freight (CIF)

Customs Valuation System

The Attorney General has asked this Office to respond to your request for our

opinion regarding the constitutionality of a contemplated adoption of a CIF

(“ cost-insurance-freight” ) basis of customs valuation. In particular, you ask

the following three questions:

(1) Whether a CIF basis of customs valuation would contravene Article I,

section 8, clause 1, of the Constitution;

(2) Whether such a system of valuation would run afoul of Article 1, section

9, clause 6; and

(3) Whether a CIF method is inconsistent with the Fifth Amendment of the

Constitution.

We believe the United States can constitutionally adopt a CIF basis of

customs valuation. Even though the Supreme Court has not provided definite

guidelines regarding the precise application of article I, sections 8 and 9, to the

matter in question, the Court’s basic interpretation of these provisions, taken

together with the relevant constitutional history, persuades us that the adoption

of a CIF system would not violate those provisions. Moreover, we believe that

the Fifth Amendment does not proscribe a CIF basis of valuation.1

The details of such a system and its actual impact on the structure of trade

throughout the United States, however, could have a significant bearing on the

outcome of any judicial challenge. We can only articulate the governing

principles to which any implementation of a CIF system of customs valuation

must conform.

'O ur discussion is limited to the questions posed. The question whether the President, as opposed

to Congress, is empowered to institute such a system is not addressed.

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I. Customs Valuation

In levying ad valorem rates of customs duties—the type in question here2

—the amount of the duty depends on the customs value to which the rate is

applied as well as upon the rate itself. The customs value of an imported article

may be assessed in one of two ways. Under the present FOB (“ free-on-board” )

standard, United States customs officials assign the dutiable value to an

imported commodity in isolation from the transportation charges.3 An FOB

system requires officials in general to assess the value of the imported article at

the time it was exported, in accordance with applicable guidelines.4

In contrast, the CIF (“ cost-insurance-freight” ) system calls for an assessment

of the value of the article and also of the total of freight, insurance, and other

transportation charges.5 The latter costs are included in the final figure setting

the imported item’s dutiable value, to which an ad valorem rate is applied.6

A shift by the United States from an FOB to a CIF method would have two

primary effects. First, dutiable values would be increased7 and thus, unless an

offsetting decrease in rates or a similar alteration would accompany the switch,

customs duties as a whole would rise. A second effect, more directly relevant

for constitutional purposes, is that certain inequalities in the valuation of

articles imported into this country would result from including variable

transportation and other charges in the calculation.

An FOB system of customs valuation itself may result in unequal valuation

when physically identical commodities imported into the United States are

valued differently because of their varying points of foreign origin. For

example, two identical articles from two different sources could have widely

dissimilar costs, which therefore would be reflected in different appraisals of

the items’ dutiable value in an American port due to their disparate “ foreign

values” ;8 the disparities would not result from varying costs of transporting the

articles to the port of entry. Thus, although under an FOB arrangement, two

physically identical items imported from two different sources might be valued

differently in the same port of entry in the United States, the valuation of such

articles from the same source— in which, arguendo, the cost of the articles is

2Customs duties can be levied in terms of either ad valorem rates, under which a given

percentage of the imported article’s value is assessed; specific rates, according to which so much is

assessed per unit o f the imported article; or compound rates, which combine ad valorem and

specific rates.

}See R. Vernon, The Economic Environment o f International Business, 110-111 (1972).

4See, Customs Valuation, Report of the U.S. Tariff Commission to the Committee on Finance,

U .S. Senate, 93d Cong, 1st sess., 27-28 (1973).

3See Report, footnote 4.

6W hile most nations apply a CIF standard of customs valuation, the United States, Canada,

Australia, and a few other countries employ an FOB system. Id., at 28.

V d., at 17.

“Historically, a number of standards have been utilized to measure the value of a commodity in

the country of origin, including the price charged by the exporter for the shipment of goods in the

country of origin; its foreign market value; its cost of production, to be attested to by the

manufacturer; and its "U nited States value,” a constructed foreign value. See Elliott, Tariff

Procedures and Trade Barriers, 143-47 (1955).

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basically similar—would tend to be fundamentally uniform throughout this

country, regardless of the port of entry.

Under a CIF system two physically identical items from the same source

could be valued unequally in two different points of entry in the United States.

The variance in the cost of freight and insurance between the exportation point

and the respective American ports might be sufficiently great to generate

significantly dissimilar valuations at the two different points of entry.9

We observe that while an FOB arrangement would not tend to generate

inequalities among different States, or among different ports of the same State,

with regard to the value assigned to physically identical articles imported from

the same source, such imbalances could well follow from the adoption of a CIF

system.

II. The “ Uniformity” and “ No Preference” Clauses

Concern about the constitutionality of a CIF system arises from the

requirements of Article I, section 8, clause 1, and Article I, section 9, clause 6,

of the Constitution. Clause 1 (the Uniformity Clause) states:

The Congress shall have power to lay and collect taxes, duties,

imposts and excises, to pay the debts and provide for the common

defense and general welfare of the United States; but all duties,

imposts and excises shall be uniform throughout the United States.

(Emphasis added.)

And clause 6 provides:

No preference shall be given by any regulation of commerce or

revenue to the ports of one State over those of another; nor shall

vessels bound to, or from, one State, be obliged to enter, clear, or

pay duties in another.

A. The Uniformity Clause.10 Since a CIF system of customs valuation, by its

very nature, is designed for even-handed application in all States, such a system

facially would not discriminate against particular States or ports. You have

9See Report, note 4, at 85.

loThe language of the Uniformity Clause first confers on Congress the power to assess and

collect “ taxes, duties, imposts and excises,” and then qualifies the power to impose “ duties,

imposts and excises” by requiring that they be “ uniform throughout the United States.” The

omission in the qualifying phrase of the broadest term, “ taxes,” indicates that the strictures of the

uniformity provision are designed to apply only to a subclass of taxes, denominated “ duties,

imposts and excises.” In a “ general sense, all contributions imposed by the government upon

individuals for the service of the State are called taxes,” whether they are termed a “ tribute,

talliage, impost, duty, gabel, custom, subsidy, aid, supply, excise, or other . . I.J. Story,

Commentaries on the Constitution o f the United States § 950, at 699 (5th e d ., 1891). In particular,

“ duties, imposts and excises" are “ indirect" taxes in the constitutional sense, and are to be

distinguished from "direct” taxes, which are required by Article I, section 2, to be “ apportioned

among the several States . . . according to their respective num bers.” Thus, the rule of uniformity

applies to "duties, imposts and excises" as indirect taxes, and the rule of apportionment pertains to

direct taxes. See Story, supra, §§ 750-51.

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stated that whatever valuation arrangement is adopted by this country, “ that

method of valuation will be applied uniformly throughout the United States.”

Consequently, any constitutional challenge of a CIF valuation system on the

basis of the Uniformity Clause must look to its predictable effects, notably, the

differentials between total customs duties paid on articles imported at different

ports resulting from varying transportation and related charges.

It is a long-established doctrine that the type of uniformity required under the

Uniformity Clause is “ geographical,” not “ intrinsic.” See, e.g., Fernandez v.

Wiener, 326 U.S. 340, 359 (1945); Steward Machine Co. v. Davis, 301 U.S.

548, 583 (1937); Brushaber v. Union Pacific Railroad Co., 240 U.S. 1, 24

(1916); Billings v. United States, 232 U.S. 261, 282 (1914); Flint v. Stone

Tracy Co., 220 U.S. 107, 158 (1911); Patton v. Brady, 184 U.S. 608, 622

(1902); Knowlton v. Moore, 178 U.S. 41, 83-106 (1900). While the judicial

elaboration of this distinction has not always been complete, some discussions,

notably that in Knowlton v. Moore, have set forth the doctrine’s core.

In Knowlton,u the Supreme Court described the principle of “ intrinsic”

uniformity as requiring that duties, imposts, and excises shall “ operate precisely

in the same manner upon all individuals,” and must be “ intrinsically equal and

uniform in . . . operation upon individuals.” 178 U.S., at 84-85. Thus, the

“ intrinsic” uniformity requirement looks primarily to the effects of a tax on

individuals in different States, and restricts the effects to a strictly circum­

scribed range.

But if one construes the language “ all duties, imposts and excises shall be

uniform throughout the United States” as dictating that all such levies shall be

“ intrinsically equal and uniform,” even taking into account a small margin of

inevitable variation, then, in effect, one has rendered nugatory the meaning of

the words, “ throughout the United States.” For if intrinsic equality were

required, it would apparently be expected to obtain as to all individuals or

entities taxed, without any special reference to the States as such. Thus, there

would have been no reason for specifically mentioning them. Since a

fundamental dictum of constitutional interpretation is not to read the document

so as to view some terms in it as surplusage,12 it seems that “ uniform” cannot

easily assume the narrow meaning ascribed to it by the “ intrinsic” uniformity

interpretation.13

It is somewhat anomalous to require that only “ duties, imposts, and

excises,” and not other taxes authorized by the Constitution,14 must be

"A n inheritance tax levied by Congress during the Spanish-American W ar was objected to in

Knowlton on alternative grounds; if it was a “ direct” tax, it was not properly apportioned among

the States; and if an “ indirect” tax, it was not sufficiently uniform throughout the United States.

The Supreme Court concluded that the levy was not direct, but indirect.

nSee ].). Story, supra, § 910, at 664 (5th ed., 1891) ("T he common principles of interpretation

would seem to instruct us that the different parts of the same instrument ought to be so expounded

as to give meaning to every part which will bear it.” ); and § 980, at 719 (" . . . no part of the

Constitution can be considered as useless, no sentence or clause in it without a m eaning").

'3See, Knowlton, 178 U.S. at 87.

l4See note 10, supra, for the point that the uniformity requirement applies only to a subset of all

taxes Congress is constitutionally authorized to levy.

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“ intrinsically” uniform in their effects. Especially since customs duties and

excises are often highly particularistic in their subjects, as well as extraordinar­

ily varied, it would be quite difficult in practice, even if theoretically possible,

to be certain that every such Federal tax has intrinsically equal impact on

individuals throughout the Nation.15

Moreover, an interpretation of the Uniformity Clause which requires

Congress to guarantee that the multifarious consequences of a duty, impost, or

excise must be identical throughout the United States suffers from the

circumstance that Congress is quite unlikely to be certain in advance about the

varied consequences of any given taxing system. The full implementation of

such a test would demand either extraordinary foresight, or a rigorous

retrospective analysis that would effectively render the validity of taxing

arrangements directly conditional on the outcome of a subsequent review of the

results of a tax. Such a stringent requirement may also significantly constrict

the Federal taxing power, perhaps so much—as Knowlton feared—as virtually

to deny it, even while nominally recognizing it. See 178 U.S., at 89.

These difficulties, considerable as they are, may be avoided by interpreting

the Uniformity Clause as stipulating, not that the effects of customs duties must

be intrinsically equal, but that the rules established for levying and collecting

them must be generally applied and must be neutral with regard to the States.

Such an interpretation is supported by the relevant constitutional history, which

shows that the Framers were primarily concerned about the singling out of

particular States for favored or disfavored treatment.16 The Framers’ concep­

tion of the Uniformity Clause’s protection against explicit favoritism was thus

elaborated by Joseph Story:

Unless duties, imposts, and excises were uniform, the grossest and

most oppressive inequalities . . . might exist . . . . (A) combination

of a few States in Congress might secure a monopoly of certain

branches of trade and business to themselves, to the injury, if not to

the destruction, of their less favored neighbors . . . . If this provision

as to uniformity of duties had been omitted . . . New York and

Pennsylvania might, by an easy combination with the Southern States,

have destroyed the whole navigation of New England. A combination

of a different character, between the New England and the Western

States, might have borne down the agriculture of the South; and a

i5As the Supreme Court said in Knowlton, 178 U .S., at 88, "Excises usually look to a particular

subject, and levy burdens with reference to the act of manufacturing them, selling them, etc. They

are or may be as varied in form as are the acts or dealings with which the taxes are concerned.

Impost duties take every conceivable form, as may by the legislative authority be deemed best for

the general welfare. They have been at all times often specific. They have sometimes been

discriminatory, particularly when deemed necessary by reason of the tariff legislation of other

countries. The claim of intrinsic uniformity, therefore, imputes to the Framers a restriction as to

certain forms of taxes, where the restraint was least appropriate and the omission where it was most

needed." Cf. Head Money Cases, 112 U.S. 580, 595 (1884) (“ Perfect uniformity and perfect

equality of taxation, in all the aspects in which the human mind can view it, is a baseless dream ” ).

l6This point is made clear in the elaboration of the debates at the Constitutional Convention set

forth in Knowlton. 178 U .S., at 101-06.

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combination of yet different character might have struck at the vital

interests of manufacturers. So that the general propriety of this clause

is established by its intrinsic political wisdom, as well as by its

tendency to quiet alarms and suppress discontents.

To counter the dangers of such “ alarms and . . . discontents,” the Constitu­

tion requires, as Knowlton indicates, the even-handed application of duties,

imposts, and excises. The “ geographical uniformity” that the Uniformity

Clause demands “ looks to the forbidding of discrimination as between the

States, by the levying of duties, imposts or excises upon a particular subject in

one State and a different duty, impost or excise on the same subject in

another.” Knowlton, 178 U.S., at 89. As the Supreme Court noted in Florida

v. Mellon, 273 U.S. 12, 17 (1927), “ [a]ll that the Constitution (Art. 1, § 8, cl.

1) requires is that the law shall be uniform in the sense that by its provisions the

rule of liability shall be the same in all parts of the United States.” 17

It might be argued that there is a central distinction between a variable excise

rate, as in Knowlton, and a CIF customs valuation scheme, since in the former

case inequalities may arise because of the uneven distribution of items taxed

throughout the United States, whereas in the latter case, inequalities may

follow simply from the application of a variable valuation standard. Such an

argument, however, is specious. The ultimate practical effects of variable rates

leading to different amounts of tax levied depending on the quantity and value

of imported articles available to be taxed in given States, on the one hand, and

of a variable element in the valuation formula, on the other hand, are essentially

the same. Moreover, we can discern no support for the notion that the Framers

contemplated differentials in the rates of tax, such as those in Knowlton, but

chose to draw the line at the inclusion of variable factors in calculating the tax

base.18

Rather, the proceedings at the Constitutional Convention relating to Article I,

section 8, clause 1, and Article I, section 9, clause 6, confirm that the Framers

sought to prevent direct discrimination against States, not to guard against the

incidental side effects of a uniformly applied set of customs regulations. For

instance, on August 25, 1787, Messrs. Carroll and Martin, members of the

Convention, expressed the apprehension “ that, under the power of regulating

17See B. Schwartz, A Commentary on the Constitution o f the United States, at 171 (1963) (the

rule of uniformity means “ only that the same principles must be used to define the existence, the

amount, and the enforceability of the liability for the tax throughout the entire territorial area of the

United States"); H. Rottschaefer, Handbook o f American Constitutional Law 186-87 (1939).

lsAn unwillingness to draw any such line, grounded apparently on the lack of a serviceable

principled distinction, may be seen in lower court decisions permitting as "uniform " differences in

taxes resulting from a changing tax base. See, Standard Oil Co. v. McLaughlin, 67 F. (2d) 111,

114, (9th Cir. 1933) (holding that a Federal tax on the transportation of oil in pipelines does not

violate the Uniformity Clause, even though the base on which the tax is computed may vary in

different cases, because “ [t]he amount of the tax in each case will depend upon the amount of oil

transported and the reasonable charge therefor, but all those under the same circumstances will pay

the same tax” ); Minature Vehicle Leasing Corp. v. United States, 266 F. Supp. 697, 700 (D.N.J.

1967) (holding that an excise tax on the importation of automobiles with a tax base predicated on

their selling price is not unconstitutionally nonuniform, despite natural inequalities resulting from

differences in the importers' costs).

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trade, the general legislature might favor the ports of particular States, by

requiring vessels destined to or from other States to enter and clear thereat, as

vessels belonging or bound to Baltimore, to enter and clear at Norfolk, etc.” 19

Because of this, they moved and had seconded the following proposition, the

forerunner of the No Preference Clause:

The legislature of the United States shall not oblige vessels belonging

to citizens thereof, or to foreigners, to enter or pay duties or imposts

in any other State than in that to which they may be bound, or to clear

out in any other than the State in which their cargoes may be laden on

board; nor shall any privilege or immunity be granted to any vessel

on entering or clearing out, or paying duties or imposts in one State

in preference to another. [Emphasis added.]20

Also on August 25, General Pinckney and Mr. McHenry submitted what was

the predecessor of the Uniformity Clause as follows:

All duties, imposts, and excises, prohibitions or restraints, laid or

made by the legislature of the United States, shall be uniform and

equal throughout the United States.21 [Emphasis added.]

After these two proposals had been submitted to the Committee on Detail,

the Committee issued a report in which both were embodied in one section,22

and the words “ and equal” were struck from the phrase “ uniform and equal”

in the Uniformity Clause as originally proposed. That deletion may be fairly

interpreted, as indeed the Supreme Court has done, to indicate an intent to erase

any implication that strict equality among the States must be achieved.23

The final version of the clauses submitted to the Committee of Style provided

as follows:

. . . Nor shall any regulation of commerce or revenue give preference

to the ports of one state over those of another, or oblige vessels bound

to or from any state to enter, clear, or pay duties in another.

And all duties, imposts, and excises, laid by the Legislature, shall be

uniform throughout the United States.24

By the time the Committee of Style issued its report, however, the language

dealing with the power to lay and collect duties, imposts, and excises had been

transferred to a separate section,25 and the Uniformity Clause in its final form

remained distinct from the No Preference Clause.26 Thus, the Uniformity and

i95 Elliot's Debates 478-79 (1845).

20ld., at 103.

21Id., at 479. .

22That section provided, id. , at 502:

"N or shall any regulation of commerce or revenue give preference to the ports of one

state over those of another or oblige vessels bound to or from any state or enter, clear, or

pay duties in another; And all tonnage, duties, imposts, and excises, laid by the Legisla­

ture shall be uniform throughout the United States." |Em phasis added.]

2,See. Knowlton, 178 U .S., at 104.

242 Farrand, The Records o f the Federal Convention o f 1787, at 571 (1937).

2SSee. id., at 594, 596.

26See, id., at 610 n. 2 & 614.

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No Preference Clauses, although unified in their intent and original adoption,

became separated during the stylistic arranging of the Constitution. Both

clauses are fundamentally directed toward guarding against attempts by

Congress to enact an explicitly discriminatory taxing system benefiting given

ports or States.27

Accordingly, to the extent that the language and purpose of a CIF system of

customs valuation establish the same governing principles throughout the

country, the CIF system is not barred by the Uniformity Clause.

B. The No Preference Clause. In applying the restriction of Article I, sec. 9,

cl. 6, that no “ preference” be given to the “ ports of one State over those of

another,” it appears that to the extent that the development of a CIF system of

valuation requires only the articulation of entirely general rules with respect to

all States, no particular port would need to be provided for, much less

preferred, in terms. Once again, the issue is whether that clause bars a CIF

customs valuation scheme with somewhat variable effects in absolute or

“ intrinsic” terms.

In the first place, the precise consequences of a CIF system of valuation

would appear to be both unpredictable and changeable. Thus, it is implausible

to view such a system as a method of systematically preferring any particular

port over any other. Such a specific preference is what the No Preference

Clause’s language and history, as canvassed above, are primarily directed

against. A CIF system of customs valuation confers no special advantages on

any particular ports; a fortiori it would escape the proscriptions of that

provision.

Furthermore, to the extent that certain incidental benefits may be directed to

some ports from a CIF system of valuation, such preferences would result from

geography, and, as the Supreme Court put it in Alabama G.S.R. Co. v. United

States. 340 U.S. 216, 229 (1951), quoting with approval, ICC v. Diffenbaugh,

222 U.S. 42, 46 (1911), “ ft]he law does not attempt to equalize fortune,

opportunities or abilities” in this regard.28

We consider that any preference that may accrue to a port as a result of a CIF

system of valuation would be incidental and permissible under the No

Preference Clause.

21See, Knowlton, 178 U .S.. at 106. A customs valuation system taking into account variable

transportation costs is not proscribed. The tariff levied by the First Congress included, in addition

to the basic ad valorem rate, an increment of ten or twenty percent, which was to correspond

roughly to the cost of transporting merchandise from the country of origin. See Customs

Administration Act, July 31. 1789. 1 Stat. 29. Section 17 of that Act provided:

And be it further enacted, that the ad valorem rates of duty upon all goods, wares and

merchandise, at the place of importation, shall be estimated by adding twenty per cent to

the actual cost thereof, if imported from the Cape of Good Hope, or from any place

beyond the same; and ten per cent on the actual cost thereof, if imported from any other

place or country, exclusive of all charges.

28C/.. Armour Packing Co. v. United States, 209 U.S. 56, 80 (1908). (“ The fact that a

regulation, within the acknowledged power of Congress to enact, may affect the ports of one State

more than those of another cannot be construed as a violation of this constitutional provision [the

No Preference Clause].’’)

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III. The Fifth Amendment

You are also concerned that a CIF system of valuation may, in its

application, draw classifications in violation of the Equal Protection principle

implicit in the Due Process Clause of the Fifth Amendment.29 Such a challenge

would rest on the premise that classifications generated by a CIF system are

substantively unreasonable and arbitrary in their inequalities.30

Since this is not a case involving one of the so-called “ fundamental rights”

or “ suspect” classifications—such as classification based on race—to which

the Supreme Court has demonstrated special sensitivity by engaging in different

forms of heightened scrutiny,31 the basic question is whether the classifications

resulting from a CIF system are rational in the sense of serving the ends for

which the system is designed.32

Any distinctions in the amounts of customs duty levied in different American

ports on identical articles under a CIF system would be related to variations in

transportation and similar charges incurred from the point of origin to the ports

of entry. A CIF system is, of course, constructed precisely to take these costs

into account. In the absence of a discriminatory intent against any State or port,

which, if it existed, would in any event fly in the face of the Uniformity and No

2VSee, Bolling v. Sharpe, 347 U.S. 497, 499 (1954).

30Since Bolling v. Sharpe, considerations of equality have been found to be implicated in the Due

Process Clause of the Fifth Amendment. See, e.g., Buckley v. Valeo, 424 U.S. 1, 93 (1976).

(“ Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth

Amendment.” ) C f, Hampton v. Mow Sun Wong, 426 U.S. 88, 100 (1976). (The Court noted, in

the context of a challenge to a Civil Service Commission regulation barring noncitizens from

employment in the Federal competitive civil service, that although both the Due Process Clause of

the Fifth Amendment and the Equal Protection Clause of the Fourteenth Amendment “ require the

same type of analysis,” nevertheless “ the two protections are not always co-extensive,” and

"there may be overriding national interests which justify selective federal legislation that would be

unacceptable for an individual State.")

3lPolitical choices resulting in classifications burdening fundamental rights or indicating

prejudice against racial or other minorities have been subjected by the courts to closer analysis, or

stricter scrutiny, in an effort to preserve the ideal of equality. See, e.g., Shapiro v. Thompson, 394

U.S. 618 (1969) (the fundamental right to travel); Hunter v. Erickson, 393 U.S. 385 (1969) (race

as a suspect classification); Reitman v. Mulkey, 387 U.S. 369 (1967) (race as a suspect

classification). See generally Gunther, The Supreme Court, 1971 Term — Foreword: In Search o f

Evolving Doctrine on a Changing Court: A Model fo r a Newer Equal Protection, 86 Harv. L. Rev.

I, 8 (1972).

32The basic requirement of Equal Protection analysis is that a legislative classification be

minimally rational. "The courts must reach and determine the question whether the classifications

drawn in a statute are reasonable in light of its purpose . . . .” McLaughlin v. Florida, 379 U.S.

184, 191 (1964).

257

Preference Clauses, a CIF system may not be said to lack the requisite

minimum rationality required by the Fifth Amendment.33

We are therefore of the view that the Fifth Amendment does not bar the

adoption of a CIF system.

Jo h n M . H a r m o n

Assistant Attorney General

Office of Legal Counsel

33It cannot be said definitely that distinctions resulting from a CIF system of valuation have no

conceivable basis in fact, or that they are not grounded “ upon a state of facts that reasonably can be

conceived to constitute a distinction, or difference in . . . policy.” Allied Stores o f Ohio v. Bowers,

358 U.S. 522, 530 (1959). See generally Tribe, American Constitutional Law §§ 16-2, 16-3

(1978).

258