Court of International Trade activity

Kazakhstan's Ministry of Trade and Integration wanted to intervene in a countervailing duty case on silicon metal from Kazakhstan in the Court of International Trade in June. It was denied for failing to comply with CIT Rule 24 -- the rules governing intervention. In particular, the defendant-intervenors and petitioners in the underlying CVD case, Globe Specialty Metals and Mississippi Silicon, said the trade ministry failed to state the issues it wanted to litigate (see 2106110029). Now, the ministry is back in CIT, filing a "renewed motion to intervene as plaintiff-intervenor" on June 16 (Tau-Ken Temir LLP et al. v. United States, CIT #21-00173).

By subjecting aluminum extrusion importer Global Aluminum Distributor to two antidumping and countervailing duty evasion investigations for the same conduct and entries, CBP violated Global Aluminum's rights to due process, the importer said. Filing a July 2 complaint in the Court of International Trade, Global Aluminum called out the customs agency for breaking "long-standing principles of fundamental fairness" by including the importer in multiple evasion investigations under the Enforce and Protect Act -- a process already riddled with due process violations, according to the complaint (Global Aluminum Distributor LLC v. United States, CIT #21-00312).

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The Court of International Trade will stop liquidation of unliquidated entries subject to litigation over List 3 and List 4A Section 301 China tariffs, a CIT panel said in a July 6 opinion (Court No. 21-00052). Granting a preliminary injunction, Judges Claire Kelly and Jennifer Choe-Groves held that questions over limitations on CIT's ability to reliquidate the entries or grant a monetary judgment mean the Section 301 plaintiffs risk irreparable harm in the absence of one. Chief Judge Mark Barnett dissented, arguing that the court does have the power to reliquidate, and that the resulting lack of irreparable harm weighed against granting the injunction.

Tools of the trade returned after temporary use abroad do not have to been actually used to be eligible for duty-free treatment under subheading 9801.00.85 Porsche Motorsports North America, said in a reply brief filed June 25. CBP has ruled in the past that it’s enough for goods to be made available for use to qualify for duty-free treatment, PMNA said in the brief, filed in support of its motion for judgment in a case at the Court of International Trade (Porsche Motorsports North America, Inc. v. U.S., CIT # 16-00182).

The Commerce Department's decision to assume 24 working days per month for calculating surrogate labor rates, instead of 21 days, in an antidumping administrative review is unsupported, the Coalition for Fair Trade in Hardwood Plywood said in a June 24 motion for judgment in the Court of International Trade. The coalition said the agency failed to properly explain its switch to 24 working days after originally relying on 21 days in its preliminary determination (Coalition for Fair Trade in Hardwood Plywood v. United States, CIT #20-03930).

The Court of International Trade will stop liquidation of unliquidated entries subject to the List 3 or 4A Section 301 China tariffs imported by the thousands of plaintiffs in the Section 301 litigation, a majority of judges on the three-judge CIT panel said in a July 6 opinion that granted a preliminary injunction. "To give the parties time to implement appropriate procedures, gather pertinent information, and otherwise take necessary action to comply with this order, the court will temporarily restrain liquidation of any unliquidated entries of merchandise imported from China by any plaintiffs in the Section 301 Cases which are subject to List 3 or List 4A duties," it said.

Many cases challenging findings of antidumping or countervailing duty evasion under the Enforce and Protect Act include claims that the process has violated an importer's constitutional rights, particularly under the Fifth Amendment. Case after case in the Court of International Trade argues elements of the EAPA process -- from the lack of notice provided to an importer that it's under investigation to the insufficient public summaries of proprietary information in the investigation -- violate importers' due process rights under the U.S. Constitution. However, the circumstances under which these claims may actually be heard by CIT may have yet to come, trade lawyers said.

Steel nail importer Hilti, Inc. filed a consent motion to stay proceedings on June 30 in its Court of International Trade case challenging the legality of the expansion of the Section 232 tariffs to cover steel and aluminum “derivatives” pending a key U.S. Court of Appeals for the Federal Circuit opinion on the same topic. CIT recently halted liquidation of Hilti's entries pending the resolution of the case (see 2106300032). Hilti wants to pause the case until the Federal Circuit reaches an opinion in PrimeSource Building Products v. U.S. CIT previously held in the PrimeSource case that the Section 232 tariff expansion onto derivative products violated statutory time limits. Counsel for Hilti conferred with Ann Motto of the Justice Department, who consented to the stay (Hilti, Inc., v. U.S. et al., CIT # 21-00216).

The Commerce Department continued to use Malaysia as its primary surrogate country in an antidumping administrative review after the Court of International Trade told the agency to further explain the departure from using Romania, Commerce said in June 30 remand results. The agency did, however, grant that Romania classifies as a "significant producer" of activated carbon, the subject merchandise, a departure from its final results. The agency also switched to using Malaysian surrogate values for a key input in activated carbon for most of the mandatory respondents' suppliers.