Arguments from plaintiffs in the massive Section 301 litigation against the Office of the U.S. Trade Representative's remand submission at the Court of International Trade lack merit and reveal a "misunderstanding of judicial remands," the U.S. argued in a Nov. 4 brief defending the remand results. The plaintiffs said that USTR cannot take another look at the record to defend its tariff action under Section 301 from public comments and can only "parrot existing statements" on the record. The government said that this view is not compatible with a key Supreme Court precedent, and that under this interpretation, no agency would be able to stand by its decision in fixing a failure to respond to public comments (In Re Section 301 Cases, CIT #21-00052).
Country of origin cases
The Customs Rulings Online Search System (CROSS) was updated Nov. 4 with the following headquarters rulings (ruling revocations and modifications will be detailed elsewhere in a separate article as they are announced in the Customs Bulletin):
Chief Judge Kimberly Moore at the U.S. Court of Appeals for the Federal Circuit, during Nov. 3 oral argument, questioned plaintiff-appellant M S International's (MSI's) position that the Commerce Department failed to include quartz surface product (QSP) fabricators as part of the domestic industry for quartz surface products when initiating the antidumping and countervailing duty investigations on QSPs from India (Pokarna Engineered Stone Limited v. United States, Fed. Cir. #22-1077).
The following are short summaries of recent CBP NY rulings issued by the agency's National Commodity Specialist Division in New York:
Antidumping duty petitioners' "notice of supplemental authority" in a case over whether Amsted Rail Co.'s former counsel violated ethical rules in an injury proceeding is neither supplemental nor an authority, plaintiffs in the matter, led by ARC, argued in a Nov. 3 reply brief. The supplemental authority, which included a declaration from Georgetown University Law Center ethics professor Michael Frisch and accused the plaintiffs of abusing the litigation system, could have been filed "contemporaneous with the [petitioner's] motion to vacate the temporary restraining order," and it is not an authority since "it is not a statute, regulation, or decisional law," the motion said (Amsted Rail v. ITC , CIT #22-00307).
Selective Cushioning Units (SCUs) are products of Mexico due to their complex assembly, not products of China subject to Section 301 duties, Strato argued in a Nov. 3 complaint to the Court of International Trade (Strato, Inc., v. U.S., CIT #22-00315).
Plaintiff AA Metals cannot prove that its Chinese-origin aluminum coils are outside the scope of the antidumping and countervailing duty orders on common alloy aluminum sheet from China, petitioner Texarkana Aluminum argued in a Nov. 3 reply brief at the Court of International Trade in an Enforce and Protect Act case. The plaintiff "does not -- and cannot -- dispute" the finding that the physical dimensions of its product match the description laid out in the orders' scope, the brief said (AA Metals v. United States, CIT #22-00051).
The U.S. Court of Appeals for the Federal Circuit in a Nov. 2 oral argument questioned importer Acquisition 362, doing business as Strategic Import Supply, over its jurisdictional grounds to challenge a CBP decision, given that the company failed to file a protest. SIS argued that it didn't need to file a protest to challenge the liquidation of its entries, given that there was nothing to protest within 180 days of liquidation. At oral argument, Judges Timothy Dyk, Richard Taranto and Todd Hughes probed this position, with Hughes in particular expressing doubt over the claim, given the finality surrounding CBP's liquidation of imports (Acquisition 362 v. United States, Fed. Cir. #22-1161).
Antidumping duty petitioners submitted various supplemental authorities in Amsted Rail Co.'s case over its former counsel's purported "betrayal" in using a former client's information against it in a later injury proceeding at the International Trade Commission. The petitioners, collectively referred to as the Coalition of Freight Coupler Producers, included a declaration from Georgetown University Law Center ethics professor Michael Frisch discussing whether ARC's former counsel, Daniel Pickard, now-partner at Buchanan Ingersoll, committed an ethics violation. Frisch said that the D.C. Bar Rule 1.9 concerning conflicts of interest does not apply to ARC since the only party affected by the injury proceeding is ASF-K de Mexico, a Mexican maquiladora factory affiliated with ARC that did not formerly employ Pickard, and that ARC's lawsuit is an "abuse of the litigation process" (Amsted Rail Co. v. United States International Trade Commission, CIT #22-00307).
CBP announced that it has initiated and consolidated two Enforce and Protect Act investigations on whether Double L Group, LLC (Double L) and Manufacturing Network Inc. (MNI) evaded antidumping and countervailing duty orders on Chinese-origin steel grating, according to a notice dated Oct. 26. The investigations were launched on July 21, following allegations by Hog Slat that Double L and MNI misclassified imported steel grating as non-covered merchandise.