The Court of International Trade on Dec. 7 suspended liquidation of all unliquidated entries involved in a case challenging a decision by President Donald Trump to revoke a tariff exclusion granted to bifacial solar panels. The liquidation suspension comes after the trade court struck down the tariff exclusion withdrawal, finding it to be a clear misconstruction of the law since the relevant law only permits trade liberalizing alterations to existing safeguard measures (see 2111160032). After the ruling, the plaintiffs, led by the Solar Energy Industry Association, filed an unopposed motion for an order suspending liquidation, urging the court to halt liquidation until all appeals are final. Without such action from the court, it is possible that many of the subject entries will have liquidated and become final, the motion said (Solar Energy Industries Association, et al. v. United States, et al., CIT #20-03941).
Court of International Trade activity
The Court of International Trade partially sided with solar cell importer Aireko Construction, instructing CBP to properly liquidate its entries in accordance with the Commerce Department's instructions, but ruled against Aireko by finding that the importer did not properly challenge the instructions themselves. In a Dec. 7 opinion, Judge Claire Kelly said that CBP needs to correct its error by applying antidumping and countervailing duty rates different from those listed in Commerce's instructions but that Aireko failed to launch a challenge under Section 1581(i) -- CIT's "residual" jurisdiction -- to challenge the instructions.
The Court of International Trade cannot set aside case law finding that subassemblies do not qualify for the finished merchandise exclusion in antidumping and countervailing duty order scope rulings, Judge Stephen Vaden said in a Dec. 6 opinion. Siding with the Commerce Department over plaintiffs China Customs Manufacturing and Greentec Engineering, the court said the plaintiffs' solar roof mountings fall within the scope of the AD/CVD orders on aluminum extrusion from China.
The Court of International Trade on Dec. 8 sustained the Commerce Department's fourth remand results in a case over an administrative review of the antidumping duty order on crystalline silicon photovoltaic cells from China, covering entries from 2013-14. Judge Claire Kelly upheld Commerce's switch to valuing a key solar cell input using Bulgarian imports rather than Thai imports after the court previously said the agency's use of the Thai surrogate data was improper. Under "respectful protest," Commerce used the Bulgarian data, and none of the plaintiffs, led by Solarworld Americas, Inc., objected.
The Court of International Trade on Dec. 8 sustained the Commerce Department's fourth remand results in a case over an administrative review of the antidumping duty order on crystalline silicon photovoltaic cells from China, covering entries from 2014-15. In her second opinion of the day, nearly identical to the first, Judge Claire Kelly upheld Commerce's switch to valuing nitrogen using Mexican imports rather than Thai imports after the court previously said the agency's use of the Thai surrogate data was improper. Under "respectful protest," Commerce used the Mexican data, and none of the plaintiffs, led by Canadian Solar International Limited, objected.
The Court of International Trade remanded the Commerce Department's final results in the first administrative review of the antidumping duty order on hot-rolled steel flat products from Australia, in a Nov. 30 opinion made public Dec. 8. Judge Richard Eaton remanded Commerce's use of total adverse facts available after finding that the agency failed to show that mandatory respondent BlueScope's responses created a gap in the record and didn't provide the company with a notice of deficient responses. The court ordered that Commerce shall use BlueScope's quantity and value submissions unless it gives a "reasoned explanation" as to why this data is unusable for key considerations in the review.
Surety company International Bond & Marine is responsible for over $730,000 in unpaid duties resulting from a diamond jewelry company's fraudulent import scheme, the Department of Justice alleged in a Dec. 6 complaint filed at the Court of International Trade. Due to the terms of the bond agreement between International Bond and the jewelry company, Anaya Gems, the surety must cover the unpaid duties that accrued as a result of Anaya Gems' efforts to undervalue its jewelry shipments and underpay customs duties owed, DOJ said (United States v. International Bond & Marine, Ltd., CIT #21-00611).
The following lawsuits were recently filed at the Court of International Trade:
The Court of International Trade granted a preliminary injunction against the liquidation of two plaintiffs' pig farrowing crate imports after they argued that their case raises serious legal questions over an antidumping and countervailing duty evasion case. In a Dec. 6 brief, the plaintiffs, Ikadan System USA and Weihai Gaosai Metal Product Co., said that since they have made a showing of irreparable harm, the burden in showing its success on the merits is lowered and that the mere questions raised by the case clear this hurdle. The Department of Justice also signed off on the injunction motion (Ikadan System USA, Inc., et al. v. United States, CIT #21-00592).
A confidential opening brief from appellant ABB Enterprise Software is not in compliance with the U.S. Court of Appeals for the Federal Circuit's rules, the appellate court said in a Dec. 6 notice of non-compliance. The Federal Circuit said that the document "does not contain the required proof of service or the proof of service indicates improper service of material that cannot be served through the court’s electronic filing system." ABB's case appeals a Court of International Trade ruling that sided against the Commerce Department's use of adverse facts available in an antidumping duty review. The opening brief in question argued that the CIT wrongly held that Commerce impermissibly speculated when finding that an antidumping duty respondent's reporting error supported disregarding the respondent's entire U.S. and home market databases (see 2111230087) (Hyundai Electric & Energy Systems, fka Hyundai Heavy Industries Co., Ltd., et al. v. United States, Fed. Cir. #21-2312).