The U.S. Court of Appeals for the Federal Circuit in a July 12 order lifted a stay in an antidumping duty case concerning whether the Commerce Department can make a particular market situation adjustment to the sales-below-cost test, despite its recent decision in Hyundai Steel Co. v. U.S., which said that Commerce cannot make a PMS adjustment to the sales-below-cost test (see 2112100039) (Saha Thai Steel Pipe Public Co. v. United States, Fed. Cir. #22-1175).
The Court of International Trade in a July 12 opinion denied a motion from Kevin Ho, owner and director of importer Atria, to dismiss a penalty action for lack of personal jurisdiction. Judge Timothy Reif said that the U.S. properly identified the "who, what, when, where, and how" of Ho's alleged fraud over the alleged illegal importation of HID headlight conversion kits, so personal jurisdiction was established. However, Reif denied in part and granted in part Ho's motion to dismiss for failure to state a claim, holding that the U.S. made insufficient factual allegations on Ho's knowledge and intent to violate customs law based on fraud, but giving the U.S. the opportunity to amend its complaint.
Law firm Baron & Budd will invest "significant resources" from its whistleblower practice to look into allegations of customs fraud, the firm announced. Citing the tariffs imposed by the Trump administration and continued by President Joe Biden, Baron & Budd said that it is impossible for CBP to catch every instance of customs fraud, opening the door for whistleblowers to help out with customs enforcement. The firm encouraged whistleblowers with information about a company evading tariffs or duties to bring a False Claims Act lawsuit, which allows the whistleblowers to get a cut of the money recovered by the government in a successful FCA case.
The following lawsuits were recently filed at the Court of International Trade:
The Commerce Department erred by finding that the South Korean government's provision of electricity for less than adequate remuneration conferred a non-measurable benefit in a countervailing duty review, U.S. steel company Nucor Corp. argued in a July 8 complaint at the Court of International Trade. During the review, Nucor took issue with the evidentiary flaws with the cost data that Commerce used, telling the agency that it was illegal to say that the data reflected market-based costs. The suit mirrors the language in a separate case brought by Nucor over a different CVD review (Nucor Corporation v. United States, CIT #22-00171).
The U.S. Court of Appeals for the Federal Circuit in a July 11 order dismissed an appeal from Wheatland Tube Co. on whether the Commerce Department can make a particular market situation adjustment to the sales-below-cost test in antidumping matters. Wheatland moved for a voluntary dismissal, telling the court that since the key case on this issue, Hyundai Steel Co. v. U.S., was not petitioned to the Supreme Court, the court should dismiss the appeal (see 2206280063). In Hyundai Steel, the Federal Circuit said that Commerce is not allowed to make a PMS adjustment to the sales-below-cost test when determining normal value (Husteel Co., Ltd. v. United States, Fed. Cir. #22-1300).
The Court of International Trade in a July 11 order said that counsel for exporter Guangdong Hongteo Technology Co. could not withdraw from Hongteo's customs classification lawsuit. Judge Jennifer Choe-Groves said that since the plaintiff is a company and not a person, counsel for Hongteo -- namely, Lawrence Pilon and Serhiy Kiyasov of Rock Trade Law -- could not leave the case without substitute counsel first being identified. Pilon and Kiyasov sought to withdraw as counsel since Hongteo did not pay its outstanding legal fees.
Importer Charman Manufacturing didn't evade antidumping duties on its malleable cast iron pipe fittings imported from China, CBP said in a July 5 determination. After looking into claims from Matco-Norca that Charman skirted the duties by transshipping the pipe fittings through Indonesia or Singapore, CBP said it didn't have substantial evidence proving these claims. The determination in the Enforce and Protect Act investigation is one of only a handful of times that CBP has come back with a negative evasion finding.
The Court of International Trade in a July 8 opinion dismissed importer Rimco's antidumping and countervailing duty challenge after finding that the claims lack subject-matter jurisdiction at the trade court. Judge Mark Barnett said that Rimco's Eighth Amendment claims could not proceed under Section 1581(a) since they are not contesting the liquidation of the steel wheel entries at issue but instead contest the Commerce Department's actions leading up to the high AD/CVD rates. The judge further ruled that Rimco's claims made under Section 1581(i), the court's "residual" jurisdiction, cannot stand since the importer could have requested an administrative review of the AD/CVD orders, clearly showing that other avenues of remedy were available.
The following lawsuits were recently filed at the Court of International Trade: