Court of International Trade

A bonded carrier of merchandise imported under a transportation and exportation entry is only responsible for ensuring delivery, but CBP may ask for documents showing exportation in order to prove the merchandise was delivered, said the U.S. Court of Appeals for the Federal Circuit on July 28 as it affirmed a judgment against C.H. Robinson. The carrier had been ordered by the Court of International Trade in 2012 to pay $106,407.86 in unpaid duties, taxes and interest for a shipment of wearing apparel from China that was allegedly diverted into the U.S. while en route to Mexico. The Appeals Court agreed that the CF 7512s stamped by a Laredo customs broker at an unmonitored CBP facility aren’t enough to prove C.H. Robinson fulfilled its responsibility to deliver the merchandise.

Antidumping duty rates for three exporters of chlorinated isocyanurates from China (A-570-898) may change, after the Court of International Trade on July 24 ordered the Commerce Department to reconsider certain aspects of an administrative review. Commerce had on Jan. 30 assigned new AD duty cash deposit rates ranging from 47.17% to 59.12% to Hebei Jiheng Chemical, Juancheng Kantai Chemical, and Arch Chemicals in the final results (see 14012914). But in response to challenges from the Chinese exporters and domestic industry, as well as the agency’s own request, the Court remanded certain issues back to Commerce. Any changes may affect current AD duty cash deposit requirements, as well as assessments of duties on importers of subject merchandise from these companies entered between June 2011 and May 2012.

Antidumping duty assessments on importers that entered polyethylene film, sheet and strip from China (A-570-934) in late 2009 and 2010 look set to fall, after the Court of International Trade on July 22 sustained the Commerce Department’s recalculations in an administrative review covering the period. Commerce had in its administrative review of the period Nov. 1, 2009 through Oct. 31, 2010 assigned an 8.42% rate for Tianjin Wanhua Co., Ltd; a 10.87% rate for Sichuan Dongfang Insulating Material Co., Ltd.; and an 8.48% rate for both Fuwei Films (Shandong) Co., Ltd. and Shaoxing Xiangyu Green Packing Co., Ltd. (see 12030938). But in response to court remands, Commerce is now set to revise the rates to 19.49% for Tianjin Wanhua, 14.25% for Sichuan Dongfang, and 19.35% for both Fuwei Films and Shaoxing Xiangyu Green Packing. The decision is subject to appeal. If finalized, current cash deposit rates would not be affected for any of the companies because new rates have since been set in more recent reviews (see 14070114).

Customs protests must be unambiguously identified as protests, said the Court of International Trade on July 10 as it dismissed a tugboat operator’s bid for preferential duties on a vessel returned after foreign repair. Puerto Rico Towing & Barge Co. argued that a letter its lawyer sent to a CBP vessel repair specialist was an official protest, despite not having been submitted on CBP Form 19. But CIT found that the letter didn’t include certain information required on protests, and made statements that appeared to indicate that it wasn’t intended as a protest at all. A subsequently filed CF 19 filed by PR Towing came too late, apparently as a result of a misunderstanding over the applicable deadline for protests, so the company had no basis for its lawsuit, said CIT.

Three environmental advocacy groups have brought a lawsuit at the Court of International Trade that seeks to compel the government to issue regulations banning imports of all fish that are caught in ways that risk bycatch. The Center for Biological Diversity, Turtle Island Restoration Network, and Natural Resources Defense Council filed their complaint on July 2, alleging the relevant government agencies have failed to put rules in place implementing the Marine Mammal Protection Act despite the law’s passage over 40 years ago. The only regulations currently in place ban the importation of tuna caught in purse seine nets in the Eastern Pacific, but the law says the Departments of Commerce and the Treasury are supposed to issue regulations banning imports of all fish and fish products from fisheries that risk bycatch.

Frozen tempura-fried vegetables are classifiable in the Harmonized Tariff Schedule as prepared vegetables, not other “food preparations,” said the U.S. Court of Appeals for the Federal Circuit on July 3 as it affirmed a lower court ruling. The importer of the vegetables, R.T. Foods, claimed that the processing of the vegetables, including battering and frying, took it out of the prepared vegetables category. But CAFC said the term “prepared vegetables” completely describes R.T. Foods’ tempura fried vegetables, so the product can’t be classified in a “catch all” provision for other food preparations.

Locking pliers are correctly classified in the Harmonized Tariff Schedule as wrenches, said CBP in an internal advice decision that confirmed that a two decade-old customs ruling and a 30-year old Court of International Trade opinion still apply. Cooper Tools argued that the classification of locking wrenches as pliers is incorrect and outdated, and said they should instead be classified as pliers. But in customs ruling HQ 166799 issued on April 16, CBP found that it is bound by the court decision, and nothing has changed that would warrant changing its interpretation.

The Commerce Department is set to drop the antidumping duty cash deposit rate for one exporter of frozen fish fillets from Vietnam to zero, but will more than double cash deposit rates for 23 other exporters, after the Court of International Trade on June 26 allowed the agency to proceed with publication of an amended final results. Commerce says it found that it made calculation errors in the 2011-12 administrative review on frozen fish that it completed in April (see 14040412). A correction of those errors means the rate for Vinh Hoan will drop to zero. But the 23 “average rate” companies will have their rates rise from $0.42/kg to $1.2/kg as a result of the change. Liquidation of Vietnamese frozen fish fillets entered between August 2011 and July 2012 is on hold because of a court injunction (see 14061816), so CIT’s decision could increase importer liability for assessments on unliquidated entries from the 23 “average rate” companies.

The Court of International Trade on July 26 reluctantly declined to reconsider its denial of a constitutional challenge to the requirement that importers pay any duties owed before filing protest denial lawsuits. Despite the “absurdity” of the situation faced by International Custom Products (ICP), the now-defunct importer of white sauce is still required by law to pay $28 million in duties before it can file suit challenging CBP’s reclassification of 13 of its entries, it said.

The Commerce Department doesn’t have to find a motive in order to find “targeted dumping” and use an alternate calculation method for calculating antidumping duties, said the Court of International Trade on June 25 as it sustained the final results of the 2011-12 administrative review on circular welded carbon steel pipes and tubes from Turkey.