CIT Proposes to Eliminate Reserve Calendar, Make Other Rule Changes
The Court of International Trade is proposing changes (here) to its rules that would eliminate its controversial “Reserve Calendar” and set time limits on CBP’s submission of entry documentation in cases challenging denied protests. Amendments to CIT Rule 83 (here) would replace the Reserve Calendar, where cases may remain indefinitely in 18-month increments, with a new “Customs Case Management Calendar.” There, cases would only be able to remain for four years without action before they are dismissed. Other changes would affect CIT Rules 41 (here), 56.2 (here), 73.1 (here), 82 (here), 83 (here), 84 (here) and 85 (here), Forms 9 (here) and 24 (here), and Specific Instructions for Form 24 (here). Comments are due July 26.
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The change to Rule 83 “addresses concerns raised about the amount of time cases have been left on the Reserve Calendar,” a customs lawyer familiar with the proposal said. “The old rule permitted extensions for good cause and had a confusing requirement regarding when the motion for an extension had to be filed. This eliminates all that and creates a hard deadline,” he said.
Just as with the Reserve Calendar, a denied protest case under 28 USC 1581(a) would be placed on the Customs Case Management Calendar upon filing of a summons. The case would initially remain there for 24 months, with an option for an extension of up to 48 months. Like the Reserve Calendar, cases would be removed upon assignment, the filing of a complaint, consolidation with another case, suspension under a test case, or a settlement or voluntary dismissal. The key difference is that, if the case does not proceed, further extensions are not allowed. “An action remaining on Customs Case Management Calendar at the end of the 48-month period must be dismissed for lack of prosecution,” according to the proposed amendment to Rule 83.
If the change is finalized, all cases pending on the Reserve Calendar on the effective date of the change to Rule 83 would be moved to the Customs Case Management Calendar, a practice comment included with the proposed change says. “Notwithstanding any court order setting different deadlines for the Reserve Calendar or the length of time on the prior Reserve Calendar, the cases that are so moved will be subject to the” new 24-month limit, CIT said. The amendment “should prevent cases from sitting on the Reserve Calendar for many years,” the customs lawyer said.
In another change, CIT would amend Rule 73.1 to provide for electronic filing of entry documentation by CBP at the beginning of a denied protest case. The amended rule would include a new 90-day deadline where none previously existed, though “extensions should be freely given if a complaint has not been filed,” according to a practice comment on the proposed amendment. Though late delivery of documentation by CBP was not previously perceived as a big issue, “this will be a significant change because the entry records will be submitted electronically and will be part of the docket accessible electronically by the parties without going to the courthouse,” the customs lawyer said. However, “the entry records contain confidential business information, so they won’t be accessible to the public at large,” he said.