The Commerce Department can use adverse facts available over the Chinese government's failure to provide information on its electricity price-setting practices in a countervailing duty review, the U.S. Court of Appeals for the Federal Circuit said in a Jan. 28 opinion. Upholding a decision from the Court of International Trade, the Federal Circuit affirmed Commerce's CV duties for the provision of electricity for less than adequate remuneration (LTAR) after the Chinese government failed to explain price variations across different provinces.
CBP doesn't need to establish intent to defraud the U.S. in order to find an importer evaded antidumping and countervailing duties under the Enforce and Protect Act statute, CBP told the Court of International Trade in its Jan. 27 remand results. Continuing to find that Diamond Tools Technology (DTT) evaded the ADD/CVD order on diamond sawblades from China, CBP said that it only needs to show that DTT submitted false statements to prove evasion. This is in line with the purpose of the law, CBP said, since the purpose is to merely collect AD/CV duties owed to the U.S. (Diamond Tools Technology v. U.S., CIT #20-00060)
The U.S. Court of International Trade is limiting in-person attendance at Tuesday’s oral argument in the Section 301 cases, “due to the ongoing COVID-19 pandemic" and to "facilitate social distancing in the courtroom,” said a procedural order signed Jan. 27 by Chief Judge Mark Barnett. An audio feed of the 10 a.m. proceeding will be livestreamed on YouTube, the order said. The court joined the federal judiciary’s “pilot” program in the fall to broadcast in-person proceedings on a dedicated YouTube channel, Barnett told a mid-November status conference (see 2111120069). The pilot enables anyone to listen in “without prior registration,” and “I’m sure there will be lots of folks intending to do that,” he said then. Thousands of Section 301 cases all seek to vacate the lists 3 and 4A tariffs on Chinese imports and get the paid duties refunded with interest.
The following lawsuits were recently filed at the Court of International Trade:
Nutricia seeks a Court of International Trade judgment overturning CBP's classification of its infant and children food formulas as food preparations of heading 2106, it said in a motion for summary judgment filed Jan. 24 in the hopes of bringing to a close an over 6-year-old test case. The importer says its formulas, intended to treat a variety of diseases and disorders in infants or children, are "medical foods" classifiable as medicaments of heading 3004 and also duty-free under special tariff provisions for articles for the handicapped under subheading 9817.00.96 (Nutricia North America v. United States, CIT #16-00008).
The Commerce Department can use adverse facts available in a countervailing duty review due to the Chinese government's failure provide information about how electricity processes and costs vary among its provinces, the Court of Appeals for the Federal Circuit said in a Jan. 28 opinion. The opinion, which upheld a Court of International Trade ruling, concerns the fourth administrative review of the CVD order on solar cells from China, in which Commerce identified electricity price variations across different provinces, resulting in a finding of the provision of electricity for less than adequate remuneration.
Although attorneys were expecting further guidance from the Court of International Trade over how best to claim "first sale" valuation with the CBP, they got even more questions about how the valuation tactic will be applied, Kevin Leonard, international trade lawyer at Grunfeld Desiderio, said at a Jan. 26 webinar hosted by the U.S. Fashion Industry Association. Speaking about CIT's March decision in Meyer Corp. v. U.S., Leonard discussed what he saw as the opinion's impacts and flaws, including a failure to look at the "second sale" price in the case and the addition of a new requirement for parties looking to claim first sale.
Erik Autor, former president of the National Association of Foreign-Trade Zones, has joined customs and trade law firm Barlow & Co. as of counsel, he announced on LinkedIn. Autor's background includes a clerkship at the Court of International Trade and working at Skadden Arps as a lawyer in its international trade practice group. He will assist companies with their customs and trade matters, the firm said.
In-person oral argument in the Section 301 cases is scheduled for Feb. 1 at 10 a.m. in the Ceremonial Courtroom of the U.S. Court of International Trade, the court confirmed in a Jan. 25 amended courthouse activities report. A previously posted report dated Jan. 24 had the Section 301 oral argument missing from the schedule. Mindful of the enormous attention the litigation has generated through the thousands of cases filed, the court said in a Nov. 12 scheduling order that it “anticipates that in-person attendance will be limited” but that a remote audio feed would be provided. All the cases seek to have the lists 3 and 4A tariffs on Chinese imports vacated and the paid duties refunded with interest.
The following lawsuits were recently filed at the Court of International Trade: