The massive Section 301 litigation that has inundated the U.S. Court of International Trade since the first cases were filed 16 months ago enters a critical new phase Feb. 1 when oral argument is scheduled for 10 a.m. EST before the three-judge panel of Mark Barnett, Claire Kelly and Jennifer Choe-Groves. Virtually all the thousands of complaints seek to vacate the lists 3 and 4A tariffs on Chinese imports and get the duties paid refunded with interest on grounds that the Office of the U.S. Trade Representative overstepped its tariff-wielding authority under the 1974 Trade Act and violated protections in the 1946 Administrative Procedure Act (APA) against sloppy federal agency rulemakings.
The Court of International Trade partially granted the U.S.' partial remand request in a challenge of over 54 Section 232 steel tariff exclusion denials. In the Feb. 1 order, the court allowed the Commerce Department to take another look at 15 of the 54 exclusion denials, per its request, but only gave the agency 106 days to do so, as opposed to the 150-day timeline for which Commerce asked. While the plaintiff, NLMK Pennsylvania, consented to both Commerce's remand request and the agency's condition that a new decision maker be involved in the denials, the steel company sought further conditions such as the identities of the officials who would conduct the new reviews. The trade court denied NLMK's requests.
The 15% tariff on most solar panels and the 15% tariff on imported solar cells past a 2.5 gigawatt threshold are slated to expire Feb. 6, and, according to Reuters, the White House is considering accepting some of the International Trade Commission's recommendations on extending the solar panel and cell safeguard, and rejecting others. The ITC recommended reducing the current 15% rate by just .25% in 2022, and by another quarter point each year, until early 2026, when the safeguard would expire.
The following lawsuits were recently filed at the Court of International Trade:
Importer Meyer Corporation filed a corrected reply brief in a key case over the use of "first sale" valuation on goods from China after its initial brief was found to not be in compliance with the U.S.Court of Appeals for the Federal Circuit's rules. The Federal Circuit said that the contact information for Meyer's lawyers didn't match the information on the individuals' entries of appearance on the docket (see 2201240043). Meyer's lead counsel is John Peterson of Neville Peterson. Meyer's resubmission purportedly fixes this error. The brief came in Meyer's appeal based on a Court of International Trade ruling that held that first sale treatment may not be applicable to non-market economy exports (see 2201190059). Meyer argued in the brief that CIT improperly applied the "dual burden of proof" when it denied the importer first sale valuation on its cookware from China (Meyer Corporation v. United States, Fed. Cir. #21-1932).
The Commerce Department can use adverse facts available over the Chinese government's failure to provide information on its electricity price-setting practices in a countervailing duty review, the U.S. Court of Appeals for the Federal Circuit said in a Jan. 28 opinion. Upholding a decision from the Court of International Trade, the Federal Circuit affirmed Commerce's CV duties for the provision of electricity for less than adequate remuneration (LTAR) after the Chinese government failed to explain price variations across different provinces.
CBP doesn't need to establish intent to defraud the U.S. in order to find an importer evaded antidumping and countervailing duties under the Enforce and Protect Act statute, CBP told the Court of International Trade in its Jan. 27 remand results. Continuing to find that Diamond Tools Technology (DTT) evaded the ADD/CVD order on diamond sawblades from China, CBP said that it only needs to show that DTT submitted false statements to prove evasion. This is in line with the purpose of the law, CBP said, since the purpose is to merely collect AD/CV duties owed to the U.S. (Diamond Tools Technology v. U.S., CIT #20-00060)
The U.S. Court of International Trade is limiting in-person attendance at Tuesday’s oral argument in the Section 301 cases, “due to the ongoing COVID-19 pandemic" and to "facilitate social distancing in the courtroom,” said a procedural order signed Jan. 27 by Chief Judge Mark Barnett. An audio feed of the 10 a.m. proceeding will be livestreamed on YouTube, the order said. The court joined the federal judiciary’s “pilot” program in the fall to broadcast in-person proceedings on a dedicated YouTube channel, Barnett told a mid-November status conference (see 2111120069). The pilot enables anyone to listen in “without prior registration,” and “I’m sure there will be lots of folks intending to do that,” he said then. Thousands of Section 301 cases all seek to vacate the lists 3 and 4A tariffs on Chinese imports and get the paid duties refunded with interest.
The following lawsuits were recently filed at the Court of International Trade:
Nutricia seeks a Court of International Trade judgment overturning CBP's classification of its infant and children food formulas as food preparations of heading 2106, it said in a motion for summary judgment filed Jan. 24 in the hopes of bringing to a close an over 6-year-old test case. The importer says its formulas, intended to treat a variety of diseases and disorders in infants or children, are "medical foods" classifiable as medicaments of heading 3004 and also duty-free under special tariff provisions for articles for the handicapped under subheading 9817.00.96 (Nutricia North America v. United States, CIT #16-00008).