Recent Court Cases on International Trade for July 9-15, 2008
The following Court of Appeals for the Federal Circuit (CAFC) and Court of International Trade (CIT) cases on international trade issues were dated or decided during the period of July 9 - 15, 2008:
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CIT Rules That 'Principal Use' Must be Determined in Order to Classify Baby Food and Beverage Bags
This court case (a 'test case') concerns the classification of bags used to store baby food and beverages. U.S. Customs and Border Protection (CBP) classified the bags as travel, sport, and similar bags under HTS 4202.92.45 (20%), while the importer contends the bags should be classified under HTS 3924.10.50 as other plastic tableware and kitchenware (3.4%). Because the CIT found that a genuine issue of material fact exists as to the principal use of the bags, the motions for summary judgment were denied.
(The bags are approximately 11" high x 9" wide x 5" deep, and are constructed of an outer and inner layer of plastic; some of the bags contain a middle layer of foam approximately three millimeters thick. The bags consist of a 495-cubic-inch compartment secured by a zipper or Velcro mechanism, and have carrying straps and two internal elastic loops.) (A.D. Sutton & Sons vs. U.S., Slip Op. 08-78, dated 07/16/08, available at http://www.cit.uscourts.gov/slip_op/Slip_op08/Slip%20Op%2008-78.pdf)
CAFC Rules That CIT Erred in Determining Salmon ESA Case Had No Standing
The CAFC has ruled that the CIT erred in dismissing - for lack of standing - a case that involved an Endangered Species Act (ESA) issue. The CAFC remanded the case to the CIT to determine whether plaintiff's claim under the ESA falls within the exclusive jurisdiction of the CIT.
The plaintiff alleges that CBP violated its duties under the ESA when it failed to enforce the ban on importing endangered and threatened salmon and steelhead into the U.S. and failed to consult with National Marine Fisheries Service regarding this lack of enforcement as required under section 7(a)(2) of the ESA. (Salmon Spawning & Recovery Alliance vs. CBP, et. al., CAFC 2007-1444, decided 07/15/08, available at http://www.cafc.uscourts.gov/opinions/07-1444.pdf)
CIT Upholds Revocation of Orders on Steel Plate Products from 11 Countries
The CIT has upheld the International Trade Commission's (ITC) final sunset review determination that revocation of the antidumping and/or countervailing (AD/CV) duty orders on cut-to-length (CTL) steel plate products from Belgium, Brazil, Finland, Germany, Mexico, Poland, Romania, Spain, Sweden, Taiwan and the United Kingdom would not be likely to lead to continuation or recurrence of material injury to the domestic (CTL) industry. (Nucor Corp. v. U.S., Slip Op. 08-74, dated 07/09/08, available at http://www.cit.uscourts.gov/slip_op/Slip_op08/Slip%20Op%2008-74.pdf)
CIT Upholds ITA's AD 'Adverse Facts Available' Rate for Pasta from Italy
Following a remand on whether the 45.49% 'adverse facts available' AD duty rate applied to PAM, S.p.A. in the sixth AD duty administrative review on certain pasta from Italy had been properly corroborated, the CIT has now determined that this 'adverse facts available' rate was adequately corroborated. (PAM, S.p.A. and JCM, Ltd., vs. U.S., Slip Op. 08-75, dated 07/09/08, available at http://www.cit.uscourts.gov/slip_op/Slip_op08/08-75.pdf)