The Commerce Department can impose penalty rates on foreign exporters for noncooperation by their upstream suppliers, said the U.S. Court of Appeals for the Federal Circuit in a May 29 decision. Although the court rejected the particular rate assigned to Mueller Comercial in an administrative review on circular welded non-alloy steel pipe from Mexico covering entries in 2008-09, it said that penalty rates can be applied to cooperative exporters in cases where they induce cooperation by other entities.
Court of Appeals for the Federal Circuit Chief Judge Randall Rader is resigning from his position of Chief Judge effective May 30, he announced at an event held by the Federal Circuit Bar Association on May 23 (here). He will be replaced as chief judge by Sharon Prost, said CAFC (here). Rader’s resignation was followed by an apology for ethical breaches related to his interaction with an attorney in a patent case. He will remain active on the court.
The Supreme Court declined to hear another case on gender discrimination by duty rates in the tariff schedule, denying certiorari in a challenge filed by Rack Room, Forever 21 and Skiz Imports. A 2013 ruling by the Court of Appeals for the Federal Circuit dismissing the case will now stand. The case is the second tariff gender discrimination lawsuit that the Supreme Court has rejected. The high court in 2010 had denied certiorari to a challenge from Totes-Isotoner to duty rates on gloves. Totes-Isotoner’s appeal also failed because it didn’t convince the court that Congress intended to discriminate.
Entries of laminated woven sacks from China made from third-country fabric and entered before March 18, 2011 will be liquidated without paying antidumping duties, said the Commerce Department as it implemented a 2013 court ruling. The U.S. Court of Appeals for the Federal Circuit had ruled in December that Commerce in an 2011 administrative review illegally ordered a retroactive suspension of liquidation when it told CBP to “continue” to suspend liquidation of 2008-11 entries made from third-country fabric (see 13121321). Commerce’s “country of origin determination” was in effect a scope ruling, said CAFC, and scope rulings only affect entries after the date they are issued. Commerce now says laminated woven sacks produced from third-country fabric are only liable for AD duties if they are entered on or after March 18, 2011, the date Commerce issued the final results of its administrative review. The agency is directing CBP to liquidate entries made before that date without regard to AD duties.
The U.S. Court of Appeals for the Federal Circuit on May 13 denied a challenge from Deckers on the tariff classification of its Teva sports sandals, finding itself bound by its own precedent. CAFC had already ruled in 2008 that the sports sandals were classifiable in the tariff schedule as open-toed or open-heeled footwear rather than sports footwear, which carries a lower rate of duty.
Reconciliation and post-importation duty free claims are two separate programs that rely on two separate sets of laws and have different recordkeeping requirements, said the Court of International Trade May 9 as it sustained CBP’s denial of a post-importation NAFTA claim because of a late certificate of origin. The U.S. Court of Appeals for the Federal Circuit had ordered CBP to explain why it consistently grants waivers of certificates of origin for reconciliation entries, but didn’t afford the same treatment to Ford. CBP explained that differences in the programs mean it is able to waive only the filing of the certificate for reconciliation, but can only irreversibly waive “possession” for post-importation claims.
Corporate officers should not be liable for penalties for negligent misstatements on their companies’ entry documentation, said the American Association of Exporters and Importers (AAEI) in a legal brief submitted to the U.S. Court of Appeals for the Federal Circuit May 9. The court, in an en banc review, is considering the issue of whether the owner and president of Trek Leather should pay penalties for negligence under Section 592 of the Tariff Act for his company’s failure to list assists on entry documentation. AAEI says doing so would be contrary to the law’s intent, run afoul of corporate limited liability protections, and have grave consequences for the importing community and the government’s efforts at promoting compliance.
The U.S. Court of Appeals for the Federal Circuit on April 14 upheld a lower court ruling in a contentious dispute over CBP’s reclassification of white sauce imported by International Custom Products. As it had foreshadowed during oral argument, CAFC ruled that a CBP notice of action effectively revoked a 1999 ruling letter on the white sauce, which means it was an “interpretive ruling or decision” that should have been subject to notice and comment under 19 USC 1625(c).
The American Association of Exporters and Importers urged the Supreme Court take up an appeal on the tariff classification of Ugg boots, in an amicus brief filed April 9. The high court needs to decide once and for all the level of deference owed to internal agency decisions at CBP, said AAEI. Confusion over the issue led to the Court of Appeals for the Federal Circuit finding Deckers Outdoor Corporation’s boots to be “slip-on footwear” because of an internal CBP “footwear definitions” document that wasn’t subject to notice-and-comment, it said (see 13050901). If allowed to stand, the decision would effectively usurp the courts’ duty to interpret the law, said AAEI.
The U.S. Court of Appeals for the Federal Circuit affirmed the 35.79% antidumping duty rate calculated for Thai Plastic Bags Industries in the 2009-10 administrative review of polyethylene retail carrier bags from Thailand (A-549-821). After the Court of International Trade affirmed the new rate in November (see 13111324), the Thai exporter appealed Commerce’s decision to disregard some of the company’s data on its costs of production. CAFC affirmed the trade court’s decision, finding the company departed from its normal accounting practices when it submitted the data and Commerce was within its rights to ignore it.