Court of International Trade

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.

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.

The Court of International Trade stayed all proceedings in a case against 14 individuals for a scheme to evade antidumping and countervailing duties until criminal charges also levied against eight of the defendants are settled, in an April 22 procedural order. The defendants allegedly evaded duties on off-the-road tires, passenger vehicle and light truck tires and truck and bus tires from China. The case in CIT has the government seeking $20.9 million in penalties for customs fraud and $5.6 million in unpaid duties for the eight individuals with criminal charges, as well as six other defendants and the Houston-based company Winland International, which does business as Super Tire. The Section 1582 penalty case alternatively seeks $12.5 million in penalties and $2.2 million in unpaid duties for gross negligence.

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.

In dueling submissions to the Court of International Trade following oral arguments on April 19, DOJ and Ancientree made their final cases for the best surrogate country pick in the antidumping investigation on wooden cabinets and vanities from China. In a feud over whether Commerce should have picked Malaysia or Romania, the main contention was detailed financial statements versus more comparable producers in quantity and quality of product.

The Commerce Department will reverse course on a particular market situation adjustment to production costs for the purposes of a sales-below-cost test in an antidumping review on circular welded carbon steel standard pipe and tube products from Turkey, it said in a final remand redetermination filed with the Court of International Trade April 19. But it will only do so under protest, it said, noting the Federal Circuit has yet to weigh in with binding precedent on the issue.

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 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.

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.