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CIT Denies Domestics Intervention in 232 Case

 The ongoing litigation over whether the Section 232 duties were properly extended to cover certain downstream products of steel and aluminum took an interesting detour in Slip Opinion 21-6 , which covers multiple related cases with the lead case being Primesource Building Products v. United States. This opinion addresses the effort by the American Steel Nail Coalition to intervene in the case as a defendant in support of the United States and the continued application of the duties to imported steel nails. The Coalition is an ad hoc group that is not a formal entity as would be, for example, a trade association organized as an entity under state and federal law. Essentially, the Coalition wants a seat at the table in this litigation to protect its own economic interest in the continuation of the tariffs. Intervention is permitted in federal courts like the Court of International Trade either by right or by leave of the Court. Take a look at CIT Rule 24 for the details. To have a righ

Getting Smart on Classification

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  Plexus Corp. v. United States is a decision of the U.S. Court of International Trade in which the Court denied cross motions for summary judgment on the tariff classification of printed circuit board assemblies and chassis imported by Plexus for use in encoders, multiplexers, and remultiplexers. These devices are used to compress audio and video digital data, including voice so that it takes up less digital storage space and transmission bandwidth. While not technically required to successfully transmit data in networks, these devices make it cost effective to do so in a cost-effective manner, which is SMART . The compressed output can be viewed on computers, smartphones, television screens and other devices. The classification of the PCBA and chassis that are parts of the encoders, multiplexes, and remultiplexers are classified based on the classification of the devices of which they are parts. Henceforth, unless there is a reason to differentiate, I am going to refer to all three

No Mincing Words on Tuna Classification

 As mentioned in my last post, tariff classification is all about giving every word of the relevant heading, subheading, and tariff item its proper meaning. We do that by looking for definitions in the Section and Chapter Notes, commentary in the Explanatory Notes, and prior court decisions. In Starkist Co. v. United States , the first word in question was " minced ." The imported merchandise was prepared tuna fish salad. The tuna was classifiable in Heading 1604, which covers, among other things, prepared or preserved fish. Immediately under Heading 1604 is a subheading dividing the heading into "Fish, in whole or in pieces, but not minced" versus "Other prepared or preserved fish." Customs determined that the tuna in question was not mined and was packed in oil. As a result, the merchandise was subject to a 35% base rate of duty under 1604.14.10. Plaintiff argued that the tuna was minced and not packed in oil, making it classifiable as a prepared meal of

Another Update: SGS Sports

Sometimes I am forced to explain to non-customs and trade lawyers the basics of tariff classification and why it is an interesting area of law. I often use the metaphor of doing a complicated puzzle. There are rules to be followed (i.e., the General Rules of Interpretation, Section Notes, and Chapter Notes). Solving the puzzle requires properly applying the rules to the available facts. When you are lucky enough to have an issue that includes some ambiguity, you can use the rules and facts to advocate for the desired outcome. But, like all legal questions involving the interpretation of a statute, it is important that you focus on all the words. That is the main take away from SGS Sports, Inc. v. United States .  In a nutshell, this case is about whether swimwear imported from Canada could enter the U.S. duty free under HTSUS item 9801.00.20. That provision allows for duty-free entry for:  Articles, previously imported, with respect to which the duty was paid upon such previous importa

Litigation Highlights

 This is going to be my first catchup post and will hit the most salient points from some of the CIT and CAFC decision of the last six months. I may not cover everything, but as long as I am trying to read them, I may as well give you at least a blurb. You should read the full cases for details and keep in mind that the details matter. Vietnam Finewood Company Ltd.  involved a challenge to an ongoing enforcement action under the Enforce and Protect Act, 19 USC 1517 . Under this law, U.S. Customs and Border Protection is obligated to investigate allegations that an importer has avoided the payment of antidumping or countervailing duties through "evasion." In this context, evasion is the use of "any document or electronically transmitted data or information, written or oral statement, or act that is material and false, or any omission that is material, and that results in any cash deposit or other security or any amount of applicable antidumping or countervailing duties be

2020 Was a Year

I am often amused when someone says "It goes without saying . . ." and then goes ahead and says it anyway. Nevertheless, I am going to do that very thing. It goes without saying that 2020 was a strange year. For many, it was tragic and sad. The world had to cope with COVID-19 and the resulting deaths, illnesses, isolation, and economic fallout. Some also experienced terrible property loss and environmental damage from wildfires and other natural disasters. All of that happened during the least civil time in American politics in my memory and ongoing culture clashes along the seams in the American population including education levels, rural versus urban, and racial and religious groups. For the trade community, the last four years have been unlike any we can remember. You have faced threats for a unilateral withdrawal from NAFTA, Section 232 duties on steel and aluminum, Section 301 duties on products from China, and the too-fast transition to the the U.S.-Mexico-United State

CIT Strikes Down Doubled 232 Duties on Turkey

In TransPacific Steel v. United States , the United States Court of International handed the Commerce Department and the President a defeat with respect to the Section 232 duties imposed on aluminum and steel products from Turkey. This case is narrow in scope but important. The specific issue before the Court was whether Presidential Proclamation 9772  which made aluminum and steel products from Turkey subject to twice the rate of Section 232 duty than has been applied to products of other countries. Plaintiffs in this case raised several arguments seeking to overturn the proclamation and recover the excess duties paid. The first argument is statutory and procedural. Section 232 duties are the result of a process that begins when the Commerce Department initiates an investigation. The results of that investigation are then communicated to the President who can chose to take action. The President only has 90 days in which to decide whether he (in this case) is going to act and what that