Jacob Kopnick

The Court of International Trade on April 29 sustained the Commerce Department's second remand results in a countervailing duty administrative review on corrosion-resistant steel products from India. Upholding the agency's application of adverse facts available to Indian steel producer Uttam Galva Steels in Commerce's 2016 review, Judge Leo Gordon found that Commerce adequately explained its decision to apply full AFA to Uttam Galva and not to the other mandatory respondent in the case, JSW, because Uttam Galva failed to provide information about its affiliation with Lloyds Steel Industry Ltd. (LSIL).

Aluminum extrusion importer Hialeah Aluminum Supply on April 29 filed a Court of International Trade complaint challenging an Enforce and Protect Act final affirmative determination. Hialeah argues that CBP's process in the investigation violated its Fifth Amendment due process rights and violated the agency's own regulations (Hialeah Aluminum Supply, Inc. v. United States, #21-00207).

At the same time that trade-related False Claims Act cases cover an increasing number of types of allegations against importers and exporters, the rewards doled out to whistleblowers seems to be on the rise, Sidley Austin said in an April 29 analysis. Discussing increasing trade exposure in FCA cases in part two of a series on the practice (see 2104210028), Sidley said there is a trend of increased payout size. "These factors foreshadow an increase in trade-related FCA actions in the near future,” the firm said.

The Court of International Trade granted the Justice Department's request for a voluntary remand in the antidumping duty investigation on polyethylene terephthalate sheet from Oman, in an April 30 order. OCTAL says it was not given the chance to comment during the investigation on a Commerce determination that the exporter was affiliated with one of its customers. OCTAL also said the trade court should give Commerce greater than 90 days for the remand in order to reopen the record in the investigation to account for new information. DOJ agreed that the case should be remanded, but not to an extension of the 90-day deadline to reopen the record. CIT's order says the remand must be filed within 90 days.

The Court of International Trade remanded an antidumping case to the Commerce Department, finding that the agency's determination that wood flooring importer Jilin Forest Industry Jinqiao Flooring Group Co. was de facto controlled by the Chinese government lacked substantial evidence. Judge Richard Eaton, in the April 29 opinion, also found that Commerce's application of its non-market economy policy to Jilin did not clear the proper evidentiary standard, launching into an elongated discussion of the policy's original intent.

Following a court-ordered remand to address due process concerns in an Enforce and Protect Act case, CBP has failed again to provide Royal Brush Manufacturing “notice and a meaningful opportunity to be heard,” the importer argued in an April 26 response to CBP's remand redetermination. Despite some changes to comply with the Court of International Trade decision that found fault with CBP's finding that Royal Brush evaded antidumping duties on cased pencils from China by way of transshipment through the Philippines, Royal Brush continued to take issue with CBP's public summaries of key case information and the agency's failure to properly notify the company when new factual information surfaced via a verification report.

Aluminum extrusion importer Global Aluminum Distributor filed a lawsuit challenging the constitutionality of Enforce and Protect A investigations, becoming the latest to challenge the process for countering antidumping duty evasion. In an April 28 complaint, Global Aluminum said CBP's EAPA process violated procedural requirements and the importer's constitutional rights related to due process and excessive fines, and that CBP is unfairly subjecting a company to two EAPA investigations for the same conduct and entries. Separate from other EAPA complaints, Global Aluminum claims that the duties assessed via the evasion finding constitutes a violation of the Eight Amendment for excessive fines.

Court of International Trade Chief Judge Mark Barnett suggested during an April 26 status conference that an automatic stay could be in order for all cases challenging Lists 3 and 4A of the Section 301 tariffs that are unassigned to the three-judge panel. The government defense and the 15-member steering committee representing the plaintiffs did not object. Under Barnett's suggested order, all new cases without assignment to the panel would automatically be stayed and would follow comparable procedures to other cases under the HMTX Industries and Jasco Products test case to lift the stay.

Porsche Motorsports North America filed a motion for summary judgment in the Court of International Trade, hoping to sway the court that automobile repair tools and parts the company exported to Canada then brought back into the U.S. should return duty free. In the April 26 filing, Porsche argued for classification under Harmonized Tariff Schedule subheading 9801.00.85 -- the subheading granting duty-free access to goods returning to the states after having been exported for use temporarily abroad -- claiming the parts are “tools of the trade” of car racing.

Steel importer Norca Industrial Company filed a challenge to an affirmative Enforce and Protect Act determination, claiming that CBP did not have a legal basis to initiate the investigation and violated its due process rights. In an April 27 complaint in the Court of International Trade, Norca made six claims against its EAPA investigation, including on the constitutionality of the process and whether CBP unfairly made adverse inferences against the company to determine that evasion took place (Norca Industrial Company LLC v. U.S., CIT # 21-00192).