On July 23, 2010, in National Corn Growers Association, Et Al. v. Environmental Protection Agency Et Al., the Court of Appeals for the District of Columbia Circuit granted NCGA’s petition requiring review of its objections to the EPA’s total ban of the pesticide Carbofuran1 in imported foods, and cancelled EPA’s final rule to the extent that it revoked any Carbofuran tolerance levels2 in imported food.
The Court of Appeals for the District of Columbia Circuit heard an exporter’s appeal of a Bureau of Industry and Security enforcement action, but ruled that while the Export Administration Act of 1979 (EAA) is lapsed because it has not been reauthorized by Congress, jurisdiction for such appeals passes to district court.
The Court of International Trade and the Court of Appeals for the Federal Circuit made the following antidumping and countervailing duty law determinations in the first half of July 2010.
In Delphi Petroleum, Inc., v. U.S., the Court of International Trade ruled that Customs had not acted in bad faith by failing to extend the statutory time limit for filing Delphi’s drawback claims under 19 USC 1313(r)(1) and denied Delphi’s motion for attorneys’ fees¹ pursuant to the Equal Access to Justice Act, 28 USC 2412.
On July 8, 2010, the U.S. Court of Appeals for the Second Circuit in New York affirmed the decision of the U.S. District Court for the Southern District of New York in National Resources Defense Council, Inc. et al., v. U.S. Department of Agriculture et al., upholding a 2004 Department of Agriculture regulation requiring that imports of unmanufactured solid wood packing material (SWPM) be either heat treated or fumigated with methyl bromide prior to importation.
In Applied Biosystems (a division of Applera Corporation), v. U.S., the Court of International Trade granted summary judgment affirming Customs and Border Protection’s classification of certain thermal cyclers under Harmonized Tariff Schedule subheading 8419.89.95, at 4.2 % ad valorem, which includes “machinery, plant or laboratory equipment…for treatment of materials by a process involving a change in temperature” and not under heading 9032.89.60 at 1.7% ad valorem, which covers “automatic regulating or controlling instruments and apparatus”.
The Court of International Trade (CIT) and the Court of Appeals for the Federal Circuit (CAFC) made the following antidumping and countervailing duty law determinations in the second half of June 2010.
In Canex International Lumber Sales Ltd., v. U.S., the Court of International Trade ruled that cut lumber, with an angle cut on one end and a square cut on the other end was properly classified as sawn wood under Harmonized Tariff Schedule (HTS) 4407.10.0015 free of duty, and not as roof trusses under 4418.90.4020 at 3.2% ad valorem, or as other articles of wood under 4421.90.9840 at 3.3% ad valorem.
On June 21, 2010, the U.S. Supreme Court determined which set of two conflicting laws will apply to the inland U.S. rail portions of shipments of imported merchandise shipped under a single “through” bill of lading. Reversing the Ninth Circuit Court of Appeals, the high Court ruled in Kawasaki Kisen Kaisha v. Regal-Beloit Corp. that only the Carriage of Goods by Sea Act (COGSA), and not the Carmack Amendment to the Interstate Commerce Act of 1887, will apply to such shipments.
The Supreme Court ruled in Kawasaki Kisen Kaisha v. Regal-Beloit Corp. that the Carmack Amendment does not apply to a shipment originating overseas under a single through bill of lading. Therefore the shippers whose Chinese origin goods were damaged in a Union Pacific derailment in Oklahoma must seek redress in Tokyo, as stipulated in the ocean carrier’s standard terms on its single through bill of lading.