International Trade Today is providing readers with some of the top stories for March 2-6 in case they were missed.
Court of International Trade
The United States Court of International Trade is a federal court which has national jurisdiction over civil actions regarding the customs and international trade laws of the United States. The Court was established under Article III of the Constitution by the Customs Courts Act of 1980. The Court consists of nine judges appointed by the President and confirmed by the Senate and is located in New York City. The Court has jurisdiction throughout the United States and has exclusive jurisdictional authority to decide civil action pertaining to international trade against the United States or entities representing the United States.
CBP and the Justice Department are still considering whether to file an appeal of a Court of International Trade ruling against CBP regulations to prevent excise tax drawback (see 2002270062), said Alexandra Khrebtukova, a lawyer at CBP. “That decision is not yet final” because the appeals period has not yet completed, she said. An appeal would need to be filed by April 20 and “the United States is evaluating whether to file its appeal,” she said. Khrebtukova, who spoke as part of a March 6 panel at the Georgetown University Law Center International Trade Update conference, said she was speaking on her own behalf and not for CBP or the government.
CBP needs to provide more information about the intended reach of the agency's proposal to limit Court of International Trade and U.S. Court of Appeals for the Federal Circuit rulings involving locking pliers (see 1911190036), two tool companies said in comments filed in opposition to the proposal. The comments, submitted in December by lawyers for the Milwaukee Electric Tool Corporation and the Apex Tool Group, were provided by CBP in response to a Freedom of Information Act request. Both companies said they filed protests with CBP on similar merchandise. The comments were due to CBP by Dec. 20.
An importer may protest CBP’s exclusion of its redesigned product for patent infringement under a Section 337 exclusion order, the Court of International Trade said in a March 4 decision. The government argued that CBP’s exclusion of Wirtgen road milling machines was not protestable because CBP was simply enforcing the International Trade Commission’s exclusion order, and that the decision should have instead been raised with the ITC and the U.S. Court of Appeals for the Federal Circuit. But CIT, noting that the ITC in the underlying Section 337 investigation specifically declined to address the redesigned products, found that CBP acted on its own authority to exclude the road milling machines, and as a result its decision could be protested. The trade court denied the government’s motion to dismiss the case as outside its jurisdiction.
Four more importers have now filed lawsuits challenging Section 232 tariffs on steel and aluminum “derivatives,” and one of them has already been successful in obtaining a court order blocking liquidation of their entries, if not collection of the tariffs. New Supplies and GJ Burkhart (dba Fry Fastening Systems) together filed a suit at the Court of International Trade Feb. 25. Represented by Brenda Jacobs, they told the court that the Justice Department had agreed to an order directing CBP to suspend liquidation until the case is eventually decided. CIT granted the motion and issued the order on Feb. 28.
The following lawsuits were filed at the Court of International Trade during the week of Feb. 24 - March 1:
International Trade Today is providing readers with some of the top stories for Feb. 24-28 in case they were missed.
The U.S. Court of Appeals for the Federal Circuit on Feb. 28 upheld the constitutionality of Section 232 tariffs on iron and steel products, affirming a 2019 Court of International Trade decision in a closely followed case brought by the American Institute for International Steel.
The Court of Appeals for the Federal Circuit on Feb. 28 ruled that Section 232 tariffs are constitutional, finding itself bound by Supreme Court precedent set in the 1970s. Just as the Court of International Trade ruled in March 2019 in a lawsuit filed by the American Institute of International Steel, the Federal Circuit said it could not overturn the Supreme Court’s 1976 ruling, which found Section 232 to be a constitutional delegation of authority. The CAFC affirmed the CIT's decision “without deciding what ruling on the constitutional challenge would be proper in the absence of” the Supreme Court precedent.
CBP “must process and pay substitution drawback claims” for excise taxes that were previously prohibited under regulations struck down by a Court of International Trade judgment Feb. 18, according to a copy of the order added to the CIT website on Feb. 25. The judgment invalidates portions of CBP’s regulations, as amended following passage of the Trade Facilitation and Trade Enforcement Act of 2015, that sought to prevent “double drawback” for claims involving excise taxes, including amended definitions of “drawback” and “drawback claim” under the 2017 drawback regulations (see 1812170013).