Trade Updates for Week of March 1, 2017

United States Court of International Trade

 

Motion for Amended Preliminary Injunction Denied

In An Giang Fisheries Import and Export Joint Stock Company et al. v. United States, Court No. 16-72, Slip Op. 17-19 (February 24, 2017), the court denied plaintiff’s motion to amend the statutory injunction.  This matter was before theCourt on the motion of plaintiffs, An Giang Fisheries Import and Export Joint Stock Company, InternationalDevelopment and Investment Corporation, Thuan An Production Trading and Services Co., Ltd., and Viet Phu Foods and Fish Corporation (collectively “Movants”), to amend the statutory injunction issued by the court to include entries of subject merchandise that the United States Department of Commerce (“the Department” or “Commerce”) ordered to be liquidated and which U.S. Customs and Border Protection (“CBP”) actually liquidated prior to the statutory injunction taking effect.  However, because an injunction is not retroactive in effect, the court could not grant such a motion. The court stated, “Given that the entries in question have liquidated, Movants’ claims as to the dumping margin assessed on the liquidated entries are mooted, and there is no case or controversy concerning the duty rate assessed on those entries.”  Slip Op. pg. 7.   Plaintiffs waited 51 days before filing a motion for injunction, and during that time the entries liquidated.  The only possible remedy left for plaintiffs then was to protest the liquidation of entries challenging the antidumping duty rate assessed on frozen fish fillets from Vietnam. Movants had a chance to suspend liquidation of all involved entries if it moved for the injunction as soon as Commerce published its final results. As a result, the Court denied plaintiffs’ motion for an amended preliminary injunction.

 

Thanksgiving and Christmas Dinnerware and Other Utilitarian Items are Not Articles Used in the Home in the Performance of Rituals

In WWRD U.S., LLCv. United States, Court No. 11-00238, Slip Op. 17-21 (March 1, 2017), before the court are cross-motions for summary judgment. Plaintiff WWRD U.S., LLC, (“Plaintiff” or “WWRD”) contested the denial of several protests challenging U.S. Customs and Border Protection’s (“Customs”) classification of the subject imports according to their constituent materials and dutiable at rates ranging from three to six percent ad valorem.

The merchandise consisted of “Old Britain Castles” and “His Majesty” dinnerware, as well as Christmas flutes, plates, mugs, punch bowls, and lamps.  The court held that because Thanksgiving and Christmas were not cultural or religious rituals, that the subject merchandise was not classifiable under subheading 9817.95.01 of the Harmonized Tariff Schedule of the United States (“HTSUS”) as “Utilitarian articles of a kind used in the home in the performance of specific religious or cultural ritual celebrations for religious or cultural holidays, or religious festive occasions, such as Seder plates, blessing cups, menorahs or kinaras.” The court held that rituals generally encompass specific scripted acts or series of acts that are customarily performed in an often formal or solemn manner, and thus the plain language of subheading 9817.95.01 does not support broadly interpreting the term “ritual” as any event that occurs on a regular basis.  For these reasons, the Court determined the subject merchandise was classified according to their constituent material and denied plaintiff’s motion for summary judgment.

 

Goods Not Cited in Protest Supplement Not Properly Before Court

Products not specifically cited in a protest supplement and discovery materials are not properly within the jurisdiction of the United States Court of International Trade, according to a new decision by Judge Jennifer Choe-Groves.

In Sigvaris, Inc. v. United States, Slip Op. 17-20 (February 28, 2017), an importer of compression hosiery protested Customs’ failure to accord the products secondary classification under the Nairobi Protocol. Discovery documents described certain styles of the hosiery, but did not specifically identify others. Ruling on its own volition – the government not having questioned jurisdiction – the court held that it lacked subject matter jurisdiction to entertain the importer’s protest as to the styles not specially enumerated. The court directed the case to proceed as to other styles of products.