Court of International Trade activity

The following lawsuits were recently filed at the Court of International Trade:

The U.S. Court of Appeals for the Federal Circuit issued a mandate Sept. 7 in a case in which it dismissed the proceedings due to a lack of jurisdiction. In its July 14 opinion, the Federal Circuit said that the Court of International Trade was correct in dismissing an importer's challenge of CBP's assessment of antidumping and countervailing duties (see 2107140028). The plaintiff, TR International Trading Co., erred when it filed its case under the trade court's Section 1581(i) "residual" jurisdiction, since it could have challenged a denied protest under Section 1581(a) or a scope ruling under Section 1581(c), rendering Section 1581(i) unavailable, the appellate court said. In particular, TRI challenged CBP's finding that the company's citric acid imports from India were of Chinese origin and subject to AD/CV duties (TR International Trading Company, Inc. v. United States, CIT #19-00022). CAFC ordered TRI to pay court costs totaling $28.32 to the U.S. government.

The Justice Department should not be permitted an extension of time to respond to a complaint and file the administrative record in a Court of International Trade challenge of Commerce Department assessment instructions issued for hot-rolled steel imported by Optima Steel International, the steel distributor said in a Sept. 7 filing, adding it is "extremely frustrated" with another request for delay. The defendant's request should be denied since it "requests far too much time to accomplish the tasks identified, and cites to no good cause other than a claim of internal deliberations that might yield a resolution," the brief said. Also, there's no reason DOJ can't answer the complaint and file the administrative record while the government discusses how to resolve the issues raised in the litigation, Optima argued. "The two are not mutually exclusive," it said (Optima Steel Internaitonal, LLC et al. v. U.S., CIT #21-00327).

Dr. Bronner's Magic Soaps' Court of International Trade case challenging CBP's antidumping and countervailing duty evasion finding should continue, even though the relevant entries have liquidated, because the lawsuit was properly filed under Section 1581(c), the company said in a Sept. 1 reply brief. Responding to a partial motion to dismiss from the Department of Justice, Dr. Bronner's said that since the Enforce and Protect Act, under which the evasion finding was made, is codified under 19 USC 1517, the proper jurisdiction for its challenge of an EAPA investigation is Section 1581(c) (All One God Faith, Inc., et al. v. United States, CIT #20-00164).

The U.S. Court of International Trade vacated the repository requirement imposed in its July 6 preliminary injunction (PI) order for importers to request suspending the liquidation of customs entries from China with Section 301 lists 3 or 4A tariff exposure, said an order signed Sept. 8 by Judges Claire Kelly and Jennifer Choe-Groves. The government will liquidate those entries “in the ordinary course” and refund the money with interest if the tariffs are declared unlawful, “should that decision become final and conclusive, including all appeals,” it said. The court also vacated the PI order’s temporary restraining order period when no entries could have liquidated, with or without the repository.

The Commerce Department's proposed schedule to review Section 232 exclusion requests on remand is "necessary in light of Commerce's current limited resources," the agency said in a Sept. 9 brief. Replying to the plaintiffs' opposition to Commerce's voluntary remand motion at the Court of International Trade, the agency also urged the court to simply defer to the proposed schedule due to Commerce's limited resources and the non-prejudicial nature of the schedule to the lawsuit's parties. Many of the consolidated plaintiffs opposed the schedule, arguing that it was "unreasonable" with a "nonsensical" rationale (see 2108170072).

The Commerce Department and the International Trade Commission published the following Federal Register notices Sept. 8 on AD/CV duty proceedings:

No lawsuits were recently filed at the Court of International Trade.

Defendant-intervenor ABB Enterprise Software will appeal a Court of International Trade decision upholding a zero percent antidumping rate for respondents Hyundai Heavy Industries Co. and Hyosung Corporation. ABB filed its intent to appeal the decision to the U.S. Court of Appeals for the Federal Circuit in a Sept. 7 notice at CIT. In the case, Chief Judge Mark Barnett only upheld the Commerce Department's remand after the agency dropped its adverse inference against Hyundai and Hyosung, as part of the fourth administrative review of the antidumping duty order on large power transformers from South Korea (see 2107120032). Commerce initially applied total adverse facts available to Hyundai, finding that the company understated its home market gross unit prices by failing to consistently report parts of its home market sales as foreign like product.

Furniture importer Aspects Furniture International has a protectable interest in an antidumping duty evasion case at the very least due to "goodwill, reputation, and freedom to take advantage of business opportunities" concerns, the importer said in an Aug. 30 filing in the Court of International Trade. Responding to the Department of Justice's arguments countering its initial motion for judgment, AFI also said that, contrary to the government's position, CBP's limited administrative avenues to submit written arguments during the investigation were insufficient from a constitutional perspective to reject AFI's due process violation claims (Aspects Furniture International, Inc. v. United States, CIT #20-03824).