Jacob Kopnick

Following a court-ordered remand to address due process concerns in an Enforce and Protect Act case, CBP has failed again to provide Royal Brush Manufacturing “notice and a meaningful opportunity to be heard,” the importer argued in an April 26 response to CBP's remand redetermination. Despite some changes to comply with the Court of International Trade decision that found fault with CBP's finding that Royal Brush evaded antidumping duties on cased pencils from China by way of transshipment through the Philippines, Royal Brush continued to take issue with CBP's public summaries of key case information and the agency's failure to properly notify the company when new factual information surfaced via a verification report.

Aluminum extrusion importer Global Aluminum Distributor filed a lawsuit challenging the constitutionality of Enforce and Protect A investigations, becoming the latest to challenge the process for countering antidumping duty evasion. In an April 28 complaint, Global Aluminum said CBP's EAPA process violated procedural requirements and the importer's constitutional rights related to due process and excessive fines, and that CBP is unfairly subjecting a company to two EAPA investigations for the same conduct and entries. Separate from other EAPA complaints, Global Aluminum claims that the duties assessed via the evasion finding constitutes a violation of the Eight Amendment for excessive fines.

Court of International Trade Chief Judge Mark Barnett suggested during an April 26 status conference that an automatic stay could be in order for all cases challenging Lists 3 and 4A of the Section 301 tariffs that are unassigned to the three-judge panel. The government defense and the 15-member steering committee representing the plaintiffs did not object. Under Barnett's suggested order, all new cases without assignment to the panel would automatically be stayed and would follow comparable procedures to other cases under the HMTX Industries and Jasco Products test case to lift the stay.

Porsche Motorsports North America filed a motion for summary judgment in the Court of International Trade, hoping to sway the court that automobile repair tools and parts the company exported to Canada then brought back into the U.S. should return duty free. In the April 26 filing, Porsche argued for classification under Harmonized Tariff Schedule subheading 9801.00.85 -- the subheading granting duty-free access to goods returning to the states after having been exported for use temporarily abroad -- claiming the parts are “tools of the trade” of car racing.

Steel importer Norca Industrial Company filed a challenge to an affirmative Enforce and Protect Act determination, claiming that CBP did not have a legal basis to initiate the investigation and violated its due process rights. In an April 27 complaint in the Court of International Trade, Norca made six claims against its EAPA investigation, including on the constitutionality of the process and whether CBP unfairly made adverse inferences against the company to determine that evasion took place (Norca Industrial Company LLC v. U.S., CIT # 21-00192).

The Department of Justice on April 23 filed a motion to dismiss Root Sciences' Court of International Trade challenge of CBP's seizure of a shipment of a cannabis crude extract recovery machine. DOJ says that CIT lacks the jurisdiction to adjudicate challenges to CBP's seizure of goods, and the relevant federal district court is the proper venue to challenge seizures.

The U.S. Court of Appeals for the Federal Circuit on April 26 upheld a recent lower court ruling that found an active pharmaceutical ingredient imported by Janssen Ortho eligible for duty-free treatment. In line with a February 2020 Court of International Trade decision, the Federal Circuit found darunavir ethanolate, the active ingredient in a Janssen HIV medication, is encompassed by a listing in the tariff schedule's Pharmaceutical Appendix for darunavir.

Chemist Xiaorong You was convicted by a federal jury in Greeneville, Tennessee, for conspiracy to commit trade secret theft, possession of stolen trade secrets, economic espionage and wire fraud, the Department of Justice announced in an April 22 press release. You, also known as Shannon You, was the principal engineer for global research at the Coca-Cola Co. and an employee at Eastman Chemical Co., where she became aware of trade secrets belonging major chemical and coating companies. The secrets were related to formulas for bisphenol-A-free coatings for the inside of beverage cans and cost around $120 million to develop. A Lansing, Michigan, resident, You stole the trade secrets to establish a new BPA-free coating company in China, receiving millions of dollars of support from the Chinese government, DOJ said.

Turkish steel importer Borusan Mannesmann Boru Sanayi ve Ticaret filed a lawsuit April 22 in the Court of International Trade, challenging CBP's denial of its refund request for Section 232 duties, claiming that its goods were granted exclusions. Borusan, along with the consignee of the imports Gulf Coast Express Pipeline (GCX), said it was granted exclusions for specialized X70 large diameter welded line pipe that retroactively applied to imports brought in from Turkey in 2018. Two exclusions were granted for the lined pipe for the construction of the GCX pipeline, so Borusan attempted to use the exclusions to retroactively obtain refunds for Section 232 duties paid but was denied by CBP.

Polyethylene terephthalate sheet exporter OCTAL, Inc. filed a motion April 21 with the Court of International Trade in support of the Department of Justice's move to voluntarily remand an antidumping duty investigation, but called for additional time to for the Commerce Department to reconsider the case. OCTAL says the standard 90-day period of remand is not long enough, arguing Commerce should reopen the record to obtain additional information on the central claim in the lawsuit.