NEW YORK -- The Court of International Trade’s hazy jurisdiction over scope issues is one of the issues that is creating headaches for importers with products that are potentially subject to antidumping and countervailing duties, said CIT Judge Jane Restani at the Court of International Trade Judicial Conference on Dec. 1. An unclear dividing line between Commerce Department and CBP scope responsibilities means that importers that want to protect themselves have to take both routes, by filing a scope ruling request and a protest, in the hope of getting to court to challenge a finding their products are subject to AD/CV duties, said Restani.
NEW YORK -- A recent court decision on the individual liability of employees and corporate officers for their companies’ customs violations won’t result in an increase in penalty actions against middle managers and other “peripheral actors,” said Joshua Kurland, a Justice Department lawyer, during remarks at the Judicial Conference of the Court of International Trade on Dec. 1. The U.S. Court of Appeals for the Federal Circuit’s September decision in U.S. v. Trek Leather merely confirmed an interpretation long held by the Justice Department and CBP on who can be held liable for customs violations, said Kurland. ”As far as we’re concerned it’s business as usual,” he said. “It’s unlikely to expect a significant change in practice as a result of the Trek Leather decision.”
The U.S. Court of Appeals for the Federal Circuit on Nov. 20 affirmed a lower court decision on the classification of Roche Vitamin’s BetaTab beta-carotene mixture as a provitamin, rather than as a food preparation (here). The government had appealed the Court of International Trade’s June 2013 ruling (see 13062701), arguing that stabilizers added to the mixture precluded classification as general provitamins because they made the mixture more suitable for a specific use. The Federal Circuit took issue with CIT’s interpretation of the applicable tariff provision, but nonetheless found nothing was added to the mixture that changed the beta-carotene’s suitability for general use.
The U.S. Court of Appeals for the Federal Circuit affirmed on Nov. 18 a lower court decision classifying the hybrid packaging material used in U.S. Army “Meals Ready to Eat” (MREs) as plastic, and not aluminum foil (here). Following in the footsteps of the Court of International Trade, the Appeals Court found Alcan Food Packaging’s “Flexalcon” material to have the essential character of plastic, notwithstanding its inclusion of an aluminum foil layer.
International Trade Today is providing readers with some of the top stories for Oct. 14-17 in case they were missed.
The U.S. Court of Appeals for the Federal Circuit on Oct. 16 ruled that “shelf-top camisoles” with bust support features are not classifiable as “similar articles” to brassieres, affirming two Court of International Trade decisions. CAFC found that covering features of the shelf-top camisoles mean they are not "similar" to bras, and have to be classified in a residual tariff provision. At issue in the case was not only the tariff classification of textiles, but also the proper interpretation of the phrase “and similar articles” in the HTS. Circuit Judge Jimmie Reyna dissented, arguing that the majority’s interpretation of “similar articles” will “create unnecessary confusion in future classification cases and a high degree of unpredictability in the marketplace.”
The Court of International Trade on Oct. 6 again rejected a new framework from the Commerce Department for conducting antidumping and countervailing duty scope rulings on products included in “mixed media” sets. Tasked by the U. S. Court of Appeals for the Federal Circuit in 2013 with setting out criteria for deciding whether nails included in a tool set imported by Target should be subject to the AD duty order on steel nails from China, Commerce came up with a four-part test that failed to comply with CAFC’s order, said the trade court.
Coil rod used for casting and moving precast concrete sections is not covered by the antidumping duty order on steel threaded rod from China (A-570-932), ruled the U.S. Court of Appeals for the Federal Circuit Sept. 22 as it reversed a Commerce Department scope ruling. The court found that steel coil rod imported by A.L. Patterson meets the physical description of the scope in some respects, but is sold through different channels and was not covered by the original dumping and injury investigations.
The Court of Appeals for the Federal Circuit affirmed a Court of International Trade ruling in Trek Leather that said corporate officers can be liable for negligent misstatements on entry documentation in a Sept. 16 decision. The ruling marks an apparent change of heart for the CAFC, which reviewed the question of corporate officer liability in the case as part of an en banc rehearing (see 14030601). The Appeals Court previously ruled against the CIT and found that Trek Leather's owner, Harish Shadadpuri, was not liable for his company’s undervaluation of entries of men’s suits (see 13073025). Customs lawyers said the case should be the source of serious concern for corporate compliance executives who may face new risk as a result of the finding.
Importers of goods subject to antidumping duties from non-market economy countries like China and Vietnam must pay at the exporter’s rate, and not the producer’s, said the U.S. Court of Appeals for the Federal Circuit on Sept. 10 as it affirmed a lower court ruling. Contrary to the situation in market economy countries, where many exporters aren’t assigned a rate and importers can therefore enter merchandise at the producer’s rate, in NME countries all companies get a rate, even if it’s as part of the China- or Vietnam-wide entity. Because Commerce prefers exporter rates to producer rates, those China- or Vietnam-wide exporter rates must be used, said CAFC.