Recent court decisions by the U.S. Court of Appeals for the Federal Circuit (CAFC) threaten to close off a crucial avenue for judicial review of CBP ruling revocations and modifications, making it hard for importers to rely on rulings and violating Supreme Court precedent, said a lawyer representing Best Key, a Hong Kong manufacturer of yarn, in a Sept. 29 petition for a rehearing of the hearings by the full Federal Circuit. By directing Best Key to challenge classification via a denied protest, instead of allowing Best Key to challenge it under the Administrative Procedure Act, the Federal Circuit is preventing Best Key from challenging the process under which CBP revoked the ruling, John Peterson of Neville Peterson said in the petition. Best Key claims the ruling revocation process was tainted by the improper participation of its competitors.
Products are classifiable as “vitamins” in the tariff schedule if they are organic chemical micronutrients that are essential to humans but inadequately produced by the human body, the U.S. Court of Appeals for the Federal Circuit said in a decision issued Sept. 26 (here). CAFC reversed a 2015 ruling from the Court of International Trade that found carnitine imported by Sigma-Tau HealthScience is classifiable as a quaternary aluminum salt rather than a vitamin, holding that classification as a vitamin is correct because carnitine, though produced in sufficient amounts by adults, must be obtained from outside sources in newborn babies under four weeks old.
The following lawsuits were filed at the Court of International Trade during the week of Sept. 19-25:
The following lawsuits were filed at the Court of International Trade during the week of Sept. 12-18:
International Trade Today is providing readers with some of the top stories for Aug. 22-26 in case they were missed.
The Court of Appeals for the Federal Circuit on Aug. 24 affirmed a lower court ruling that held cellphone cases imported by OtterBox are classifiable in the tariff schedule as generic “other” articles of plastic under chapter 39, dutiable at 5.3%, rather than as containers subject to a 20% duty rate (here). The appeals court agreed with a year-old Court of International Trade decision that found the cellphone cases do not meet most of the four criteria for classification as containers under heading 4202 -- organizing, storing, protecting, and carrying – and are also dissimilar from such containers because they are designed to allow use of the cellphone while inside the container (see 1506020062).
Screws imported by GRK Canada are classifiable in the tariff schedule as self-tapping screws, and not wood screws, the Court of International Trade said in a decision issued July 15 (here). Ruling on the case for the second time after the Federal Circuit, on appeal, controversially ordered CIT to consider the screws’ intended use (see 14080420), the trade court again concluded that GRK’s screws share the physical characteristics of self-tapping screws. This time, however, CIT also noted the screws’ suitability for use in materials other than wood.
International Trade Today is providing readers with some of the top stories for July 5-8 in case they were missed.
Products may be circumventing antidumping and countervailing duties even if they aren’t named in the original scope of an AD/CVD order and were available in another country at the time the order was issued, the Court of Appeals for the Federal Circuit recently ruled. Overturning a 2013 ruling by the Court of International Trade (see 13102804), the Federal Circuit’s April 5 opinion (here) held that 4.75mm diameter steel wire rod from Deacero is circumventing duties on steel wire rod from Mexico, despite the fact that the scope of the AD duty order is limited to rods 5mm to 19mm in diameter and 4.75mm wire rod was commercially available in Japan at the time the scope was written in 2002. Circumvention inquiries are meant to capture products that may not be named in the scope, and only specifically excluded products cannot be found to be circumventing, said CAFC. Although the 4.75mm wire rod was available in Japan, the smallest diameter available in the countries investigated in 2002 was 5.5mm, it said. “That some quantity of small-diameter steel wire rod may have been in existence at some time in non-investigated countries does not limit Commerce’s" circumvention analysis, said the appeals court as it reinstated the Commerce Department's original finding of circumvention.
Trademarks do not have to be registered with the Patent and Trademark Office in order to qualify for less stringent CBP country of origin marking rules, said the Court of Appeals for the Federal Circuit in a March 2 decision (here). In a dispute over how prominently a jeans importer with “U.S.A.” in its brand name must mark jeans made in China, CAFC overturned the Court of International Trade in holding the company’s unregistered marks are sufficient to allow the country of origin be listed on a small tag rather than in large letters next to the brand name.