Court of International Trade

The Court of Appeals for the Federal Circuit has affirmed a Court of International Trade decision to uphold Custom's classification of LeMans Corporation's motocross jerseys and pants, and motorcycle jackets as apparel under Chapters 61 and 62 of the Harmonized Tariff Schedule. The CAFC stated that the articles are not classifiable as sports equipment in Chapter 95 as they are designed for comfort, worn on the body, and because specialization doesn't exclude articles from being classified as apparel.

In the final results of the November 1, 2007 -- June 9, 2008 AD new shipper review of fresh garlic from China and a subsequent remand redetermination, the International Trade Administration used incomplete price information from the sole publicly available price quote it located in India and made assumptions as to the unit of measure and type of sale quoted (the ITA assumed that the units offered were ounces and that the seller, who did not answer calls, was a manufacturer). The ITA then combined that price with other, much lower prices from quotes placed on the record by the respondent, but gave them less weight in the normal value. The Court of International Trade faulted this approach and remanded the issue to the agency. However, the CIT upheld the ITA’s assumptions as to the quantity and type of sale represented by the online offer it located. (Slip Op. 11-112, dated 09/07/11)

The Court of International Trade has ruled to move to trial a case involving BP Oil Supply Company's challenge against a U.S. Customs and Border Protection denial of BP protests claiming substitution drawback on unused merchandise. The CIT ruled that a jury could return a verdict on dispute over facts surrounding the commercial interchangeability and prior use of the merchandise for which BP sought drawback.

The Court of International Trade has ruled against Toyota¹ and denied its request to resubmit claims for NAFTA duty drawback on entries of unused automobile service parts imported into the U.S. and later exported to Canada. The CIT found Toyota's drawback methods failed to calculate the average inventory turnover period on a part-specific basis and would have resulted in Toyota receiving drawback for parts imported more than three years before being exported. The CIT also ruled that Customs was not responsible for Toyota's untimely drawback claims and amendments.

In a case challenging the previously suspended AD duty investigation of honey from China (carried out during the period January 1, 2000 through June 30, 2000) the International Trade Administration made a “critical circumstances”¹ determination, reversed it on a remand from the Court of Appeals for the Federal Circuit, then, following additional remands from the Court of International Trade, revived the critical circumstance finding.

Following earlier remands in the July 2004 - June 2005 AD administrative review of certain pasta from Italy, the Court of International Trade ordered the International Trade Administration to redo its calculation of the constructed value (equivalent to home market value) of pasta exported from Italy by Atar S.R.L. In this instance the CIT found the agency erred by excluding from the average profit calculation four Italian pasta producers that incurred losses during the period.

In the August 2006 -- July 2007 AD administrative review of certain frozen fish fillets from Vietnam, the International Trade Administration valued whole pangas fish (retailed as catfish) at 98 Bangladeshi Takas per kilogram, based on a 2000-2001 financial statement of a Bangladeshi producer, adjusted for inflation. The ITA found that other, more recent price sources were unsuitable or had not yet been sufficiently vetted, including a Food & Agriculture Organization price survey that cited a much lower average value. Vietnamese producer QVD Food Co., Ltd. challenged the ITA’s choice of surrogate values for fish and its calculation of expense ratios.

The Court of International Trade has ruled¹, among other things, that U.S. Customs and Border Protection's failure to provide a surety notice of suspension of liquidation as required by 19 USC 1504(c), does not invalidate an otherwise valid suspension. The CIT also determined that the Government's claims for two entries of crawfish tail meat from China were time-barred as they were deemed liquidated six months after the International Trade Administration published a Notice of Rescission in the Federal Register, which was more than six years before the Government commenced court action.

In the February ’08 - January ’09 AD administrative review of certain frozen warmwater shrimp from China, the International Trade Administration chose respondents based on the import volumes reported in Customs and Border Protection’s Form 7501. The ITA refused to consider prior review period evidence from three federal agencies, including the ITA itself, showing that import volumes reported on Form 7501 were inaccurate. The Court of International Trade, noting that the agency in other instances readily uses information carried over from prior reviews, such as for company affiliations, faulted the agency for inconsistency, and ordered it to reconsider its use of the Form 7501 volume data, and possibly modify its respondent selection.

Since the failure of the Totes-Isotoner case on the unconstitutionality of different U.S. tariff rates for men’s and “other” gloves and pending the outcome of a new “test case,” over 120 apparel importers have filed their own suits at the Court of International Trade to challenge the constitutionality of different, gender-based tariff rates for apparel and footwear products.