The preliminary injunction that the Section 301 plaintiffs seek to freeze liquidations of unliquidated customs entries from China with lists 3 and 4A tariff exposure (see 2104260010) is “unwarranted,” falls short of the high legal "bar" required and “would impose an enormous administrative burden” on CBP when the agency’s resources already are stretched thin, DOJ’s May 14 opposition argued at the Court of International Trade. Importers filed for the injunction April 23 after DOJ wouldn't stipulate it would support refunds of liquidated entries if the plaintiffs won the litigation and the tariffs were ruled unlawful.
Court of International Trade activity
The Court of International Trade on May 18 sustained a scope revision in antidumping and countervailing duty investigation on steel trailer wheels from China, backing the Commerce Department's addition to the scope in its final determinations of language covering Physical Vapor Deposition (PVD) chrome-covered wheels. In a pair of opinions, Judge Gary Katzmann said Commerce had authority to determine the scope of its investigations, and found that the agency "provided adequate explanation" for its decision to include PVD chrome wheels. However, Katzmann did remand the cases due to Commerce's retroactive imposition of antidumping and countervailing duties, instructing the agency to assess the duties from the final scope memo that made the scope changes, and not the date of the preliminary determination.
The following lawsuits were recently filed at the Court of International Trade:
The Department of Justice defended CBP's classification of five different categories of automobile parts in a May 13 reply brief further supporting its cross-motion for summary judgment in the Court of International Trade. The classification case involves 28 products from Jing Mei Automotive (USA), including: 1) interior trim, 2) door handles, 3) exterior trim, 4) mirror scalps and 5) emblems or wheel trim parts. After agreeing with Jing Mei on the proper classification for two side mirror scalp types and two plastic emblems, DOJ now asserts that the remaining parts under consideration are classifiable under Harmonized Tariff Schedule Chapter 39 while Jing Mei argues for Chapter 87.
The Court of International Trade is considering staying two antidumping cases until a related question has concluded litigation in the U.S. Court of Appeals for the Federal Circuit, Judge Jennifer Choe-Groves said in a May 13 letter. In the Federal Circuit, a particular market situation (PMS) finding for certain oil country tubular goods from South Korea is being challenged and could be determined to be directly relevant to exporter SeAH Steel Corp.'s cases in CIT (SeAH Steel Corp. v. United States, CIT # 19-00086 and # 20-00150). The Department of Justice broached the idea of a stay until the Federal Circuit case, brought by Nexteel Co., is settled in another SeAH challenge of the same Commerce Department determination (see 2105120028). Responses in both SeAH cases to the question of a stay are due by May 17.
Chinese tire exporters argued against the Commerce Department's choice to only use one mandatory respondent in an antidumping case on certain passenger vehicle and light truck tires from China, filing opening briefs in the U.S. Court of Appeals for the Federal Circuit on May 11. Exporters and appellants ITG Voma Corporation, Suton Tire Resources, YC Rubber Co. and Mayrun Tyre submitted two briefs in the appeal of a Court of International Trade opinion that determined that the statute allows for Commerce to select only one respondent. The exporters argue this is a misinterpretation of the law, citing the language of the governing statute, which includes the plural terms "exporters" or "producers."
The Court of International Trade remanded an antidumping case on off-the-road tires from China for a second time, ruling that the Commerce Department failed to provide substantial evidence in determining that two respondents were under de facto government control and not warranting of an individual AD rate. Commerce had determined the Chinese government controlled export functions for Aeolus Tyre and Guizho Tyre Co. (GTC). Judge Timothy Stanceu disagreed in a May 14 opinion. The first remand was in 2019.
The U.S. Court of Appeals for the Federal Circuit upheld the Court of International Trade's decision to reject a Commerce Department methodology for calculating antidumping duty margins, in a May 14 opinion. In the ruling, the Federal Circuit found Commerce's attempt to allocate import duties exempted or rebated "based on the import duty absorbed into, or imbedded in, the overall cost of producing the merchandise under consideration," when constructing the export price in an AD review, was unsupported by the law. Commerce attempted this new methodology for calculating the U.S. price for Indian exporter Uttam Galva Steels Limited in an antidumping duty investigation into corrosion-resistent steel products (CORE) from India.
The following lawsuits were recently filed at the Court of International Trade:
A domestic producer initiated a challenge to the Commerce Department's countervailing duty determination on phosphate fertilizers from Morocco, in the Court of International Trade, arguing that the agency failed to properly consider four subsidy programs from the Moroccan government (GOM). In a May 12 complaint, The Mosaic Co., said it wants the court to grant relief on a slew of mistakes made by Commerce in the investigation, including its determination that value-added tax exemptions, the provision of the phosphogypsum waste disposal program and VAT refunds did not constitute benefits to the mandatory respondent in the CVD investigation.