The International Trade Commission stayed a cease-and-desist order Wednesday while the U.S. Court of Appeals for the Federal Circuit considers whether data transmissions are “articles” that can be imported and can violate Section 337 of the Tariff Act. The ITC had issued the order against ClearCorrect in April, barring the company from transmitting files to the U.S. that it uses to manufacture invisible realignment braces via a 3D printer. The agency had said the transmission of the files over the Internet constitutes importation, and that the files violated patents held by Align Technology. ClearCorrect filed an appeal on May 2. The ITC said it doesn’t usually stay Section 337 remedial orders, but will do so in the case because the issue of whether data is an article that can be imported is an “admittedly difficult question.”
The Court of International Trade on June 11 reversed position on its award of attorney's fees to the Commerce Department and US Magnesium for alleged misconduct by Tianjin Magnesium International (TMI) during an antidumping duty administrative review on pure magnesium from China and a subsequent court case. CIT Judge Nicholas Tsoucalas had excoriated TMI in an April opinion (see 13042503), awarding fees because of “TMI’s repeated efforts -- through counsel -- to obstruct Commerce’s exercise of its statutory duties, to delay proceedings through frivolous argumentation and filings, and to mislead the court on material matters of fact and law constitute an intolerable level of vexatiousness and bad faith.” But after TMI filed a motion for reconsideration, Judge Richard Eaton disagreed that the company’s conduct was egregious. In each instance cited by Tsoucalas, Eaton found a reasonable explanation for TMI’s actions. “The invocation of the court’s inherent power to award attorney’s fees must be done with ‘restraint and discretion,'” said Eaton. “On reconsideration, the court finds plaintiff’s behavior, taken as a whole, did not warrant the imposition of attorney’s fees.”
The Department of Homeland Security (DHS) is inspecting all high-risk containers prior to admission into U.S. commerce, but work continues to identify potentially dangerous cargo at the earliest possible time, said witnesses at a June 4 Senate Homeland Security and Government Affairs Committee hearing on U.S. port security. The sharpening of risk-based mechanisms to assess high-risk cargo, such as the Customs-Trade Partnership Against Terrorism and Importer Security Filing, is a more effective security measure than the recently delayed congressional mandate to scan 100 percent of inbound cargo across the board, added Kevin McAleenan, acting CBP deputy commissioner.
The Commerce Department will require cash deposits of estimated countervailing duties on imports of crystalline silicon photovoltaic products from China, it said June 3 in a fact sheet announcing its preliminary determination. The agency set CV duty cash deposit rates at 18.56%-35.21% for Chinese exporters. Domestic solar companies requested the duties to close a "loophole" in the 2012 AD/CVD orders on solar cells that’s allegedly letting in an increasing amount of Chinese solar modules made from Taiwanese solar cells (see 14010301).
A domestic manufacturer filed requests on May 29 for new antidumping and countervailing duties on steel nails from India, South Korea, Malaysia, Oman, Taiwan, Turkey and Vietnam. According to the Mid Continent Steel & Wire, underselling by exporters in the seven countries are causing falling prices and a loss of market share for U.S. companies.
The Fish and Wildlife Service is amending its regulations on importation and exportation of endangered species, in a final rule that takes effect June 26. The final rule mostly adopts unchanged a proposed rule issued in March 2012 (see 12031423). Revisions include revised definitions for coral, cultivar, and sturgeon caviar; revised labeling and tagging for elephant ivory, vicuna, fur, and sturgeon caviar; processing changes for CITES documents, changes to how some CITES specimens may be used after import, etc.
The Court of International Trade ruled on May 21 that an importer’s lawsuit related to seized and excluded entries of apparel should be decided by a U.S. District Court, but stayed the case because some issues may still be left unresolved. The court found the case to be a seizure case at heart, which means it’s outside of the court’s jurisdiction. But issues related to the deemed exclusion of the merchandise mean the court may still decide aspects of the case once the seizure issue is resolved. CIT also ruled on when presentation of merchandise takes place, agreeing with CBP that it occurs when a shipment is taken for physical inspection by CBP, and not the time an entry is filed.
The Supreme Court on May 19 decided not to hear a challenge to CBP’s reliance on its internal footwear definitions document in a tariff classification case on Deckers’ Outdoor Corporation’s Uggs boots. The denial of certiorari will allow to stand a Court of Appeals for the Federal Circuit ruling in May 9 that partially relied on CBP’s internal definition to classify Uggs as slip-on footwear (see 13050901). Deckers’ had argued that, if allowed to stand, reliance on unsupported administrative “fiat” statements would put importers in a difficult position in tariff classification disputes (see 14011415).
Importers and brokers should not file requests to stop liquidation of claims potentially eligible for a renewed Generalized System of Preferences trade program, which expired last year, said CBP in a CSMS message. The National Customs Brokers & Forwarders Association of America recently advised filers to consider filing protests against liquidation to maintain rights to GSP benefits (see 14051211). Previous renewals of the GSP program allowed CBP to process retroactive refunds regardless of liquidation status, though it remains unclear if that would be the case even if GSP were renewed, the agency said.
The chief of the Justice Department’s Antitrust Division sent the FCC a letter Wednesday endorsing spectrum aggregation limits, set for a vote at Thursday’s open meeting. Meanwhile, net neutrality isn’t the only issue to attract protesters at the FCC. (See separate report in this issue.) A small group of protesters showed up at the FCC Wednesday to hold up signs urging commissioners not to forget the TV incentive auction as net neutrality takes much of the attention headed into the meeting. “Focus on Auction,” one sign read. “No Spectrum = No Net to Open,” a second said.