Ford looks set to appeal its case on the tariff engineering of cargo vans to the Supreme Court, according to a recent filing. The automaker filed a request on Nov. 20 to delay its formal petition for a hearing until February. The Supreme Court granted the request and formally docketed the case. Ford is appealing a Federal Circuit decision issued in June that found its vans imported with passenger seats are classifiable as cargo vans because the vans were designed so that the seats could be removed post-importation (see 1906070061). That decision overturned an earlier ruling from the Court of International Trade, which had found the vans classifiable in their condition at the time of importation as passenger vans (see 1708170032). The Federal Circuit denied Ford’s request for a rehearing in October (see 1910280033)
The silence from the White House on auto tariffs and a Court of International Trade ruling on 50 percent tariffs on Turkish steel (see 1911180013) has left some trade lawyers wondering whether the window has closed to levy Section 232 tariffs on European cars. The panel of judges said that the law “cabins the President's power" procedurally, because of its deadlines. The Trump administration missed its deadline of Nov. 14 last week.
The Commerce Department is lowering countervailing duty cash deposit rates imposed on carbon and alloy steel cut-to-length plate from South Korea (C-580-888), after a recent Court of International Trade decision found fault with rates the agency set in its 2017 final determination in the original AD duty investigation (see 1705240008). Commerce recalculated rates it set for POSCO and the “all others” companies. Recalculated CV rates are applicable as of Nov. 18, 2018, as follows:
CBP is proposing to limit the reach of Court of International Trade and U.S. Court of Appeals for the Federal Circuit rulings involving locking pliers, it said in the Nov. 20 issue of the Customs Bulletin released on Nov. 19. CBP's proposal stems from a CAFC ruling this year (see 1904100037) and a pair of 2017 CIT rulings (see 1704130035 and 1709210048) that involved Irwin locking pliers. “CBP believes that the definition applied by the court unduly limits the scope of the term wrench and precludes articles that function as wrenches and are commonly and commercially known as wrenches from classification as wrenches," it said.
The U.S. Court of Appeals for the Federal Circuit recently ruled against an importer seeking to file a late request for a Generalized System of Preferences benefits program refund after it missed the deadline due to a miscommunication with its broker. Affirming a decision issued by the Court of International Trade in September 2018 (see 1809240017), the Federal Circuit found valid CBP’s denial of Industrial Chemical’s protest to request refunds of duties paid during the 2013-15 GSP lapse. The Dec. 28, 2015, deadline for requesting the refunds was set by law, and CBP had no discretion to allow refund requests beyond that date, CAFC said. And while the protest was filed within 180 days of CBP’s denial of GSP refunds, it had to be filed within 180 days of the relevant entry’s liquidation, and it was not, the Federal Circuit said.
Increased Section 232 duties on steel products from Turkey may be invalid or even unconstitutional, the Court of International Trade said in a Nov. 15 decision. Denying the government’s motion to dismiss an importer's challenge of the 50 percent duty, which was dropped back to 25 percent in May (see 1905170004), the court said Transpacific Steel raises arguments that may lead to a refund of the additional duties in the CIT’s final decision.
The nominee for Court of International Trade Judge Stephen Vaden would need to review the specifics of a case that involves Section 301 tariffs before deciding whether a recusal is necessary, he said during a Nov. 13 Senate Judiciary Committee hearing. Vaden, who is general counsel at the Department of Agriculture and a member of the board of the Commodity Credit Corporation, said that he was involved in some discussion of the Section 301 tariffs as they related to aid given to farmers. Asked by ranking member Dianne Feinstein of California whether those discussions might result in a recusal in cases involving the tariffs, Vaden said he would follow the judicial standards for making the decision. “I would need to take a look at the parties that were before me, the issues that they were bringing, consult the law and also potentially consult my fellow judges before making a decision on a case by case basis regarding recusal," he said.
The Court of International Trade on Nov. 13 overturned a Commerce Department scope ruling that found cedar shingles and shakes are subject to antidumping and countervailing duties on softwood lumber from Canada. The court said Commerce needed to explain why it had never considered shingles and shakes subject to softwood lumber cases dating back to 1982, but suddenly found they’re covered by the orders in the 2018 scope ruling.
The following lawsuits were filed at the Court of International Trade during the week of Nov. 4-10:
The withdrawal of an exemption from solar cells safeguards for bi-facial cells is still on hold, after the Court of International Trade on Nov. 7 issued a temporary restraining order blocking implementation until at least Nov. 21. The court’s order bars the Office of the U.S. Trade Representative and CBP from withdrawing the exclusion from safeguard duties or modifying the Harmonized Tariff Schedule to end the exemption. Though it expires Nov. 21, the temporary restraining order may be renewed or replaced by a more permanent preliminary injunction that is currently being considered by CIT. The withdrawal of the exclusion for bi-facial solar cells was initially supposed to take effect Oct. 28 (see 1910080054), before a legal challenge filed by Invenergy and joined by the Solar Energy Industries Association prompted a delay of the withdrawal (see 1911050034).