Jacob Kopnick

A Department of Justice defense of President Donald Trump's decision to eliminate a tariff exemption for bifacial solar panels would upend “well-settled principles of judicial review,” counsel for Solar Energy Industries Association argued in a May 7 response to DOJ's motion to dismiss. The DOJ argued that the Court of International Trade isn't permitted to review a president's factual determinations when determining if the tariff actions followed statute. Seeing as the president is only explicitly allowed to adjust previous safeguard measures to a product “after a majority of the representatives of the domestic industry submits to the President a petition requesting such reduction, modification, or termination on such basis, that the domestic industry has made a positive adjustment to import competition,” the questions of whether that petition was submitted and if domestic industry has indeed made the requisite adjustments have become central ones to the case.

The following lawsuits were recently filed at the Court of International Trade:

The U.S. District Court for the District of Columbia granted a preliminary injunction for Chinese big data processing technology company Luokung Technology Corp., temporarily blocking the company's designation as a Chinese military company. Judge Rudolph Contreras issued the injunction in a May 5 ruling, finding it likely Luokung would prevail in its case against the designation. The publicly traded Chinese tech giant claims that the Communist Chinese Military Company (CCMC) designation issued by the Department of Defense was made in violation of the Administrative Procedure Act, was arbitrary and capricious, and that the evidence in hand was not substantial enough to support a finding of state control over the company.

The Court of International Trade sustained the Commerce Department's second remand results that scrapped the adverse facts available rate in a countervailing duty case, in a May 6 opinion. Judge Richard Eaton found that Commerce's eventual decision to ditch the AFA subsidy rate relating to alleged benefits that exporter Heze Huayi Chemical Co. received from China's Export Buyer's Credit Program was consistent with prior remand instructions. Plaintiffs Clearon and Occidental Chemical initially filed the challenge, claiming that the AFA rate for Heze relating to the EBCP was too low and inconsistent with prior Commerce practice.

The Court of International Trade remanded the Commerce Department's use of adverse facts available in an antidumping case, finding that the agency did not allow for proper notice and response from South Korean steel exporter Hyundai Steel Co. In an April 27 opinion made public on May 6, Judge Richard Eaton ruled that Commerce also violated its statutory authority by assigning the all-others rate to one of Hyundai's affiliated freight companies -- dubbed “Company A” in the opinion. On remand, Commerce was instructed to identify the precise data that it judged insufficient and give Hyundai an opportunity to fix the deficiency.

Following the United Kingdom's departure from the European Union, the European Commission does not want to see the U.K. join the bloc's 2007 Lugano Convention -- a pact that recognizes jurisdiction and enforcement of judgment in civil and commercial matters. In a May 4 communication from the EC to the European Parliament and Council, the commission said the Lugano Convention is meant for the internal market of the EU. and because the U.K. is now a “third party without a special link to the internal market,” it does not warrant access to the convention. In its stead, the commission recommends taking the normal course of action in recognizing jurisdiction with Britain and following the framework laid out by the Hague Conventions in the field of civil judicial cooperation.

Despite hotly contested litigation in the lower court, the Justice Department has been notably absent from an appeal of an antidumping case initially brought by exporter Goodluck India Limited. During May 3 oral argument in front of the U.S. Court of Appeals for the Federal Circuit, counsel for a group of tubing producers appealing the case refused to speculate on the government's lack of participation in the case but did point out that the Commerce Department did file its remand determination under respectful protest in the initial Court of International Trade proceedings (Goodluck India Limited, v. U.S. et al., Fed. Cir. # 2020-2017).

Apparel importer Imperia Trading's statement of material facts is filled with statements devoid of evidence and thus contrary to the rules of the Court of International Trade, the Department of Justice argued in a May 5 motion to strike parts of Imperia's evidence from the record. While conceding such requests are rarely granted, DOJ asked the court to strike multiple paragraphs in the statement, saying they fail to cite any evidence, constitute legal arguments or conclusions of law, cite evidence that does not support the paragraph and rely on evidence containing untranslated foreign language.

Following a key decision from the Court of International Trade striking down Section 232 tariffs on steel and aluminum "derivatives" (see 2104050049), steel nail importer Hilti filed a lawsuit of its own in the court seeking to reap the benefits. In a May 5 complaint, Hilti made several arguments similar to those in PrimeSource Building Products, Inc. v. United States, et al. Among other things, Hilti said the already struck-down Section 232 tariff expansion to include steel derivatives was improper because there was no underlying report from the Commerce Department (Hilti, Inc., v. U.S. et al., CIT # 21-00216).

The Court of International Trade on May 5 upheld the Commerce Department's rejection of Vietnamese steel exporter Vnsteel-Phu My Flat Steel Co.'s (PMF) quantity and value questionnaire in an antidumping duty circumvention case. In the opinion, Judge Timothy Reif sided with Commerce, ruling that the agency's decision to instead apply adverse facts available was in accordance with the law, given PMF's incomplete, then untimely resubmission of, the Q&V questionnaire form.