The Court of International Trade found again that President Donald Trump violated procedural time limits when expanding Section 232 tariffs to steel and aluminum “derivatives,” in a June 10 decision. Citing CIT's prior case on the topic, PrimeSource Building Products Inc. v. United States (see 2104050049), Judges Jennifer Choe-Groves and Timothy Stanceu awarded refunds for tariffs paid to steel fastener importers Oman Fasteners, Huttig Building Products and Huttig Inc. In Oman Fasteners, LLC. et al. v. United States, the court 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. The panel's third member, Judge Miller Baker, concurred in part and dissented in part.
Court of International Trade activity
The Court of International Trade sustained the final results of the second administrative review of the antidumping duty order on steel nails from Oman, in a June 14 decision. Judge Richard Eaton held that there was substantial evidence to back the Commerce Department's decision to use a Japanese company's financial statement to determine constructed value profit and indirect selling expenses for mandatory respondent Oman Fasteners, as opposed to an Indian company's financial statement. Petitioner and plaintiff in the case, Mid Continent Steel & Wire, originally contested the selection.
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. Dismissing a lawsuit from importers ARP Materials and Harrison Steel Castings, Judge Miller Baker found the court did not have jurisdiction to hear their challenge since the importers did not timely file protests of the CBP liquidations assessing the Section 301 duties.
The Commerce Department and the International Trade Commission published the following Federal Register notices June 11 on AD/CV duty proceedings:
The Court of International Trade consolidated two cases challenging CBP's Enforce and Protect Act administrative review on carbon steel butt-weld pipe fittings, a June 8 order said. The two now-consolidated plaintiffs, Norca Industrial Co. and International Piping & Procurement Group, were subject to an EAPA investigation for allegedly evading antidumping duties on pipe fittings from China by transshipping them through Vietnam. IPPG's case, filed under case number #21-00193, will be consolidated under Norca's case, #21-00192. Both parties alleged due process violations under the EAPA investigation and claimed that the AD order does not cover their imported products (Norca Industrial Co., LLC v. United States, CIT #21-00192).
Kazakhstan's Ministry of Trade and Integration should be barred from intervening as a plaintiff-intervenor in a case challenging a countervailing duty investigation on silicon metal from that country, petitioners Globe Specialty Metals and Mississippi Silicon said in a June 9 brief in the Court of International Trade. The ministry's motion for intervention failed to state the administrative determination to be reviewed and the issues the intervenor wanted to litigate, the petitioners said. The ministry's brief contains only three “misnumbered” paragraphs that simply say it is an “interested party.” Also, since the ministry and the plaintiff in the case have the same counsel, “it is not immediately apparent how participation by [the ministry] could bring any different analyses or arguments to the Court on the very limited issues addressed by [the ministry] in the underlying proceeding” (Tau-Ken Temir LLP et al. v. United States, CIT #21-00173).
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).
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.