After a surprise tweet from President Donald Trump that he would implement tariffs on Brazilian steel and on Argentinian steel and aluminum (see 1912020002), the agency in charge of Section 232 actions declined to say when a Federal Register notice would follow to put the tweet into action. The department also declined to say if importers can bring in products in sectors where the quotas are already full while waiting for the Federal Register notice. Commerce also didn't say if importers can apply for exclusions for the items. Currently, exclusions against quotas are allowed, but they are not allowed to be taken until this quarter, even though the quotas fill up quarter-by-quarter.
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 continues to look at the “subsidiary factors” when reviewing country of origin under the Trade Agreements Act despite a 2016 Court of International Trade decision that discounted the use of such factors in substantial transformation analysis, Sheppard Mullin lawyers said in a Nov. 25 blog post. The CIT case, which found an Energizer military flashlight to be of Chinese origin under TAA, “reasoned all the imported components retained their individual names and material composition or shape as a result of the post-importation assembly process,” they said in the blog post. Even though “substantial transformation appears to be more of an uphill battle than ever before, CBP still is relying heavily upon those 'subsidiary factors' that were disfavored in Energizer,” the lawyers said.
Laser phosphor displays imported by Prysm for integration into a display wall system are classifiable as finished monitors, and not parts of monitors, the Court of International Trade said in a Nov. 26 decision. The LPDs are each capable of displaying an image, and can’t be considered parts of a larger whole because there is no uniform configuration of which a single LPD can be considered a part, CIT said.
The following lawsuits were filed at the Court of International Trade during the week of Nov. 18-24:
An importer’s owner and executive can’t be automatically held liable for customs fraud penalties only by virtue of their position in the company, the Court of International Trade said in a Nov. 25 decision. Specific facts must link the corporate officer to any allegations of customs fraud, CIT said as it granted a motion to dismiss a penalty case brought against an apparel importer and its owner.
International Trade Today is providing readers with some of the top stories for Nov. 18-22 in case they were missed.
The silence from the White House on auto tariffs and a Court of International Trade ruling on 50 percent tariffs on Turkish steel (see 1911180013) has left some trade lawyers wondering whether the window has closed to levy Section 232 tariffs on European cars. The panel of judges said that the law “cabins the President's power" procedurally, because of its deadlines. The Trump administration missed its deadline of Nov. 14 last week.
CBP is proposing to limit the reach of Court of International Trade and U.S. Court of Appeals for the Federal Circuit rulings involving locking pliers, it said in the Nov. 20 issue of the Customs Bulletin released on Nov. 19. CBP's proposal stems from a CAFC ruling this year (see 1904100037) and a pair of 2017 CIT rulings (see 1704130035 and 1709210048) that involved Irwin locking pliers. “CBP believes that the definition applied by the court unduly limits the scope of the term wrench and precludes articles that function as wrenches and are commonly and commercially known as wrenches from classification as wrenches," it said.
Increased Section 232 duties on steel products from Turkey may be invalid or even unconstitutional, the Court of International Trade said in a Nov. 15 decision. Denying the government’s motion to dismiss an importer's challenge of the 50 percent duty, which was dropped back to 25 percent in May (see 1905170004), the court said Transpacific Steel raises arguments that may lead to a refund of the additional duties in the CIT’s final decision.
The nominee for Court of International Trade Judge Stephen Vaden would need to review the specifics of a case that involves Section 301 tariffs before deciding whether a recusal is necessary, he said during a Nov. 13 Senate Judiciary Committee hearing. Vaden, who is general counsel at the Department of Agriculture and a member of the board of the Commodity Credit Corporation, said that he was involved in some discussion of the Section 301 tariffs as they related to aid given to farmers. Asked by ranking member Dianne Feinstein of California whether those discussions might result in a recusal in cases involving the tariffs, Vaden said he would follow the judicial standards for making the decision. “I would need to take a look at the parties that were before me, the issues that they were bringing, consult the law and also potentially consult my fellow judges before making a decision on a case by case basis regarding recusal," he said.