The U.S. Court of Appeals for the Federal Circuit upheld a Court of International Trade ruling dismissing an importer's challenge of CBP's assessment of antidumping and countervailing duties, for improper jurisdiction, in a July 14 opinion. The Federal Circuit found that TR International Trading Company, which filed its case under the trade court's Section 1581(i) "residual" jurisdiction provision, could have instead challenged a denied protest under 1581(a) or a scope ruling under 1581(c), rendering Section 1581(i) unavailable.
Jacob Kopnick
Jacob Kopnick, Associate Editor, is a reporter for Trade Law Daily and its sister publications Export Compliance Daily and International Trade Today. He joined the Warren Communications News team in early 2021 covering a wide range of topics including trade-related court cases and export issues in Europe and Asia. Jacob's background is in trade policy, having spent time with both CSIS and USTR researching international trade and its complexities. Jacob is a graduate of the University of Michigan with a B.A. in Public Policy.
The Commerce Department will only partially apply adverse facts available for sales a diamond sawblade exporter made to its U.S. affiliate, which used a first-in-first-out methodology to keep track of its country of origin data when calculating the exporter's antidumping rate, it said in remand results filed by the agency July 13. The filing comes to the Court of International Trade after the U.S. Court of Appeals for the Federal Circuit left it up to the trade court to determine if a further remand was needed. The Federal Circuit held that a remand was appropriate for Commerce to determine if it could disregard the exporter's U.S. sales using the FIFO methodology (Diamond Sawblades Manufacturers' Coalition v. United States, CIT #17-00167).
The Court of International Trade on July 12 upheld the Commerce Department's pick of Romania over Malaysia as a surrogate country in an antidumping case, but sent back to the agency the resulting financial ratio calculation of a Romanian company. Since Commerce failed to address the concerns of mandatory respondent Ancientree Cabinets, Judge Gary Katzmann directed Commerce to reconsider Ancientree's objections. Other aspects of the investigation under contention, namely the selection of Romania over Malaysia and Commerce's picks for product input surrogate values, were upheld by Katzmann.
The president may impose greater Section 232 national security tariffs beyond the 105-day timeframe for action set out in the statute, the U.S. Court of Appeals for the Federal Circuit said in a July 13 ruling. Overturning a lower court ruling, the Federal Circuit found that the underlying law's deadline for the president to take "action" can refer to a "plan of action" carried out over a period of time following the 105-day deadline. That authority is not unlimited, though, in that modifications must be related to the underlying reasoning for the tariffs and those reasons can't be "stale," CAFC said.
The Court of International Trade sustained the Commerce Department's second remand results in the fourth administrative review of the antidumping duty order on large power transformers from Korea, in a July 9 opinion. Chief Judge Mark Barnett upheld the results after Commerce dropped its adverse inference against Hyundai Heavy Industries Co. and Hyosung Corporation when calculating their antidumping duty rate. The result left both respondents in the review with a zero percent duty rate.
President Donald Trump did not violate procedural timelines when he raised tariffs on Turkish steel from 25 to 50% in August 2018, beyond the 90-day deadline and 15-day implementation period for initial Section 232 tariffs, the U.S. Court of Appeals for the Federal Circuit said in a July 13 opinion. Reversing a Court of International Trade decision, the Federal Circuit threw a wrench in a key argument against certain Section 232 tariffs that action beyond the statutory timelines should not be allowed.
A group of surety associations should not be able to argue against when the six-year limitations period begins for a customs bond due to their role in "abetting the new shipper bond disaster," a group of domestic agricultural goods producers said in a July 8 amicus brief in the Court of International Trade. The brief was filed to oppose the surety associations' motion to intervene in the lawsuit (United States v. American Home Assurance Company, CIT #20-00175).
The following lawsuits were recently filed at the Court of International Trade:
Commercial airline operator NetJets Aviation's lawsuit in the Court of International Trade over CBP's assessment of customs user fees on certain of its flights should be partially dismissed since NJA, in part, is claiming the wrong jurisdiction, the Department of Justice said. NJA challenged CBP's denial of its customs protest, filing its case under Section 1581(a) and 1581(i) in CIT, the latter being a challenge to agency action. Submitting a partial motion to dismiss on July 7, DOJ said that NJA's 1581(i) claim should be tossed since 1581(a) exists as the proper avenue of jurisdiction (NetJets Aviation, Inc. v. United States, CIT #21-00142).
The Commerce Department was permitted to apply "facts otherwise available" in an antidumping duty investigation where it was unable to verify certain information due to the COVID-19 pandemic, the Department of Justice said in a July 2 brief to the Court of International Trade. Responding to plaintiffs, led by Bonney Forge Corp., DOJ said that the pandemic and travel restrictions prohibited Commerce from conducting on-site verifications during an investigation on forged steel fittings from India (Bonney Forge Corporation et al. v. United States, CIT #20-03837).