United States Court of International Trade

Slip Op. 20-58

Before the Court in Novolipetsk Steel Pub. Joint Stock Co., et. al. v. United States, et. al., Court No. 19-00194 (May 1, 2020) was “Defendant … and Defendant-Intervenors’ motions to dismiss Plaintiffs’ complaint for lack of subject matter jurisdiction.” Id. at 1. Plaintiffs commenced this action to challenge Commerce’s failure to determine an all others rate, following Commerce’s determination that it would treat the Russian Federation (“Russia”) as a market economy country in the antidumping duty (“ADD”) order on hot-rolled flat-rolled carbon-quality steel products from Russia in 1999. Plaintiff’s invoked the Court’s residual jurisdiction using 28 U.S.C. § 1581(i). Defendant and Defendant-Intervenors argued proper jurisdiction was under 28 U.S.C. § 1581(c) and even if the court has (i) jurisdiction, Plaintiffs’ challenge was untimely and barred by the statute of limitations of two years. For the following reasons, the Court granted the motion to dismiss. 

“Section 1581 enumerates the Court’s jurisdictional bases.” Id. at 12. “Subsection (i) is a ‘residual’ grant of jurisdiction for review of … the ‘administration and enforcement’ of claims …  when the remedy under another subsection of 1581 would be manifestly inadequate.” Id. The Court said that the issue in the case “would have been reviewable under 28 U.S.C. § 1581(c) had Plaintiffs brought timely action.” Id. at 9. “Given that the ADD Order would have been susceptible to challenge, jurisdiction would have laid under subsection (c), foreclosing jurisdiction under subsection (i).” The Court noted that an administrative review at Commerce would be the proper way to currently challenge the all others rate.  As such, the case was dismissed for lack of subject jurisdiction.

Slip Op. 20-59

Before the Court in In Zone Brands, Inc., et. al. v. United States, Slip Op. 20-59, Court No. 17-00025 (May 5, 2020) were cross motions for summary judgement regarding a challenge to Customs’ tariff classification of bottle toppers which depict “the heads and/or busts of popular children’s characters” such as Iron Man, Thor, or Sponge Bob. Id. at 1. “Customs classified the merchandise under subheading 3923.50.00, Harmonized Tarif Schedule of the United States (“HTSUS”), which provides for ‘Articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics: Stoppers, lids, caps and other closures.’” Id. at 2.  Plaintiff argued “the bottle toppers were properly classified under 9503.00.00, HTSUS, as ‘Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls; other toys; reduced-scale (‘scale’) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof.’” Id. For the following reasons, the Court granted the government’s motion.

 “The General Rules of Interpretation (“GRIs”) … guide classification decisions under the HTSUS.” Id. “The Court applies the GRIs in numerical order.” Id. “GRI 1 requires classification to be determined according to the terms of the headings and any relative section or chapter notes.” Id. at 5. To classify the product the Court utilized the Carborundum factors, these “include: use of the merchandise, physical characteristics of the merchandise, economic practicality, expectations of the ultimate purchasers, channels of trade, environment of sale, and recognition in trade.” Id. at 10. The Court found that the use, physical characteristic, expectations, environment, and recognition factors weighed in favor of the government’s classification. The courted noted “imaginative play with the bottle toppers does not necessarily result in their proper classification as toys,” and that the toy like functions were ancillary to the bottle top functions. Id. at 11. The Court found that the economic practicality, and channels of trade factors did not weigh in favor of either party. As such the Court found, the classification was proper under “Subheading 3923.50.00, HTSUS, providing for stoppers, lids, caps and other closures. Id. at 18.