Court of International Trade activity

Chinese exporter Changzhou Trina Solar Energy's case was severed from a consolidated action in the Court of International Trade because the other plaintiffs are appealing the trade court's decision in the U.S. Court of Appeals for the Federal Circuit, a June 9 order said. Trina originally filed its lawsuit in CIT to challenge the final results of the fourth administrative review of the countervailing duty order on crystaline silicon photovoltaic cells from China. As a result of the CIT decision, Trina's total CVD rate dropped from 9.12% to 2.93%. CIT also ordered entries related to Trina's case liquidated (Canadian Solar Inc. et al v. United States, CIT Consol. #18-00184).

The U.S. Court of International Trade scheduled oral argument for 10 a.m. June 17 via Webex on the preliminary injunction Section 301 sample case plaintiffs HMTX Industries and Jasco Products seek to freeze the liquidation of unliquidated customs entries from China with lists 3 and 4A tariff exposure. Akin Gump lawyers for HMTX and Jasco last week asked for oral argument (see 2106070017). They filed for the injunction April 23 after the government refused to stipulate that the plaintiffs will be entitled to refunds of liquidated entries if they win the litigation and the court declares the tariffs unlawful. The Justice Department opposes the injunction.

Even if the Commerce Department did not act within its authority when deciding not to include the views of countertop fabricators in its industry support determination before beginning an antidumping and countervailing duty investigation on quartz surface products from India, the agency still had the requisite level of industry support and the authority to start the investigation anyway, petitioner Cambria Company said in a June 9 brief backing the Department of Justice's defense in a case at the Court of International Trade (Pokarna Engineered Stone Limited v. United States, CIT #20-00127).

Importers must file protests to preserve their ability to obtain refunds under exclusions from Section 301 tariffs, the Court of International Trade said in a June 11 decision. Judge Miller Baker dismissed a lawsuit from importers ARP Materials and Harrison Steel Castings Co., finding the court did not have jurisdiction to hear their challenge since they did not timely file protests of the CBP liquidations assessing the Section 301 duties. The importers had filed their lawsuits under CIT's residual Section 1581(i) jurisdiction, but that provision was unavailable because the importers were actually challenging a CBP classification decision, CIT said.

The Court of International Trade again found that President Donald Trump violated procedural time limits when expanding Section 232 tariffs to steel and aluminum "derivatives" in a June 10 decision. Relying on its recent ruling in a similar case involving nail importer PrimeSource, Judges Jennifer Choe-Groves and Timothy Stanceu, as part of a three-judge panel, awarded refunds to Oman Fasteners, Huttig Building Products and Huttig Inc. The panel ruled that the president illegally announced the tariff expansion after the 105-day deadline laid out by Section 232, but denied the plaintiff's other two claims, without prejudice, on the procedural violations of the tariff expansion.

Coinciding with an increased use of CBP's Enforce and Protect Act process for investigating possible antidumping and/or countervailing duty evasion is a feeling among importers that EAPA action is largely skewed toward the alleger. “Typically, the first notice the importer receives is after the agency has already accepted the allegation and imposed draconian ‘Interim Measures’ that treat the importers’ goods as subject to anti-dumping and countervailing duties, a process" that "has proven to be massively unjust,” Mary Hodgins, a lawyer at Morris Manning, said by email. The process is facing increased scrutiny, with several lawsuits that raise due process questions making their way through the courts.

An importer’s lawsuit claiming it should have been assessed AD duties at a lower import-specific antidumping duty rate has run into jurisdictional issues, and a recently filed amended complaint from the importer that was accepted by the Court of International Trade on June 9 aims to clear them up.

Steel rebar importer Power Steel Co. paid Section 232 duties on its imports, and those payments were eligible to be deducted from its U.S. price in an antidumping case, the Department of Justice argued in a June 9 brief in the Court of International Trade (Power Steel Co., Ltd. v. United States, CIT #20-03771).

The Commerce Department can apply total adverse facts available for a mandatory respondent's failure to provide its factors of production (FPO) data on a control number (CONNUM)-specific basis in an antidumping case, the Court of International Trade ruled in a June 9 opinion. Judge Leo Gordon, in a consolidated action challenging an antidumping administrative review on certain steel nails from China, said that Commerce had the right to switch to a CONNUM-specific reporting requirement and that the mandatory respondent should have known about this switch. Gordon also found that Commerce was justified in using a total AFA rate for two mandatory respondents to calculate the non-individually reviewed respondent rate.

JSW Steel (USA) is accusing three U.S. steelmakers of a conspiracy and group "boycott" to hinder JSW's ability to make and sell competing steel products, according to a June 8 complaint in the U.S. District Court for the Southern District of Texas. Following the imposition of Section 232 tariffs on steel and aluminum in 2018, JSW claims U.S. Steel, Nucor and AK Steel owner Cleveland-Cliffs, which control 80% of domestic steel capacity, colluded to refuse to sell raw material to JSW.