Court of International Trade

The Court of International Trade posted a number of articles related to its Judicial Conference (here), held on Dec. 1. The materials include:

The following lawsuits were filed at the Court of International Trade during the week of Nov. 24-30:

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.

The Court of International Trade on Nov. 24 again ordered Commerce to clarify its exemption from antidumping and countervailing duties on aluminum extrusions from China for “finished merchandise” (here). For the second time in two months (see 14092420), Judge Delissa Ridgway found fault with a scope ruling where Commerce declined to grant the exemption, this time for straight edges imported by Plasticoid. CIT took issue with Commerce’s practice of requiring non-extruded aluminum parts to qualify as “finished merchandise.” It pointed to statements from the companies that had originally requested the investigations that appeared to indicate products in final form should not be subject to duties, regardless of aluminum content.

The following lawsuits were filed at the Court of International Trade during the week of Nov. 17-23:

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.

Four exporters of solar cells from China could face substantially higher antidumping duty rates, after the Court of International Trade on Nov. 20 granted a request from the Commerce Department to reexamine their independence from Chinese government control (here). In its AD duty investigation, completed in 2012 (here), Commerce had found Tianwei New Energy (Chengdu) PV Module Co., Ltd.; Sumec Hardware & Tools Co., Ltd.; Dongfang Electric (Yixing) MAGI Solar Power Technology; and Ningbo ETDZ Holdings Ltd. were not state-run, and thus were eligible for the 24.48% average rate assigned to non-individually investigated companies free from state control. Commerce will now take another look at its decision, in light of the fact that all four are ultimately owned by China’s State Owned Assets Supervision and Administration Commission. If Commerce reverses its decision and finds any of the companies are government-controlled, it will assign them to the China-wide entity with an AD rate of 249.96%.

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.

The Court of International Trade on Nov. 18 denied an importer’s request for court-ordered mediation to resolve a tariff classification case (here). Sigma-Tau HealthScience had asked CIT to bring in a third-party mediator to resolve the dispute, which centers on the classification of the nutritional supplement L-carnitine. It cited a recent decision involving Tenacious Holdings, where the court granted an importer’s request for mediation despite the government’s objections (see 14090402). However, the circumstances here were different, said CIT. Unlike in the earlier case, the amount at issue is not small. Also, the classification provisions involved have not changed since the dispute arose, so a decision in this case would affect future entries. Finally, as a test case, any decision would have even wider application to other entries. “This is a straightforward classification case. Further, this is a designated test case, which emphasizes the interest in the legal resolution of this action for future application,” said CIT.

The following lawsuits were filed at the Court of International Trade during the week of Nov. 10-16: