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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 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.

The government’s response is due May 14 to Akin Gump’s motion April 23 on behalf of Section 301 sample case plaintiffs HMTX Industries and Jasco Products for a “protective preliminary injunction” freezing the liquidation of unliquidated customs entries from China with lists 3 and 4A tariff exposure unless DOJ agrees to a stipulation that refund relief would be available to the importers if they prevail in the litigation (see 2104230069). Akin Gump asked for the opportunity to file a reply brief “no longer than half the length” of DOJ’s May 14 response, and offered to voluntarily withdraw the motion if the government dropped its opposition and agreed to the refund stipulation.

Plaintiffs HMTX Industries and Jasco Products in the massive Section 301 litigation’s sample case moved April 23 in the U.S. Court of International Trade for a “protective preliminary injunction” to suspend liquidation of all unliquidated customs entries imported from China with Lists 3 and 4A tariff exposure. The Akin Gump motion on behalf of HMTX-Jasco came days before the court’s three-judge panel convenes a status conference in which plaintiffs are expected to air their demands for stipulated refunds of all liquidated entries if they prevail in the litigation.

With increased False Claims Act enforcement, an executive willing to get more aggressive on fraud enforcement, and legislative action expanding the FCA's reach expected, trade exposure to FCA risk has nowhere to go but up, lawyers from Sidley Austin said. In an April 20 analysis, Sidley discussed recent trends in the so-called "reverse false claim," which focuses on money owed to the government rather than by it.

CBP's process for carrying out Enforce and Protect Act investigations could eventually be found by the courts to be unconstitutional, trade lawyers Jen Diaz and David Craven of Diaz Trade Law said during an April 21 webinar. The EAPA investigations, which seek to determine if a company evaded antidumping or countervailing duty orders, are mostly secret and do not inform entities if they are being investigated or what evidence stands against them.

The Court of International Trade's newest judge, Stephen Vaden, issued his first opinion with the court on April 21, dismissing tire importer Strategic Import Supply's challenge of CBP's assessment of countervailing duties on its imports of passenger vehicle and light truck tires from China. Vaden found that the importer's protest was filed too late, holding the 180-day deadline for protests runs from the date of liquidation, rather than the date CBP received updated assessment instructions from Commerce after Commerce amended rates set in the relevant CV duty administrative review.

Following a Court of International Trade opinion that appeared to question first sale import valuations from non-market economies, the court's observations may not be as disruptive as they first appear, KPMG said in an April 19 analysis. The judge's questioning of whether first sale could be used on non-market economies was non-binding and an issue only lightly explored at the agency level and during litigation, the firm said.

The Department of Justice continued to raise jurisdictional issues in support for a motion to dismiss a challenge from steel exporter Voestalpine USA and importer Bilstein Cold Rolled Steel seeking a refund of Section 232 duties paid on steel entries in the Court of International Trade. In an April 19 filing, the DOJ challenged the jurisdiction of Voestalpine and Bilstein's challenge while pointing out that the plaintiffs are not entitled to a refund on the duties paid since they forgot to complete one key step in the tariff exclusion process -- alerting CBP that the Commerce Department issued an exclusion in the first place.