Court of International Trade

CBP cannot limit the amount of drawback that can be claimed on excise taxes, the U.S. Court of Appeals for the Federal Circuit said in an Aug. 23 opinion upholding the Court of International Trade's ruling. Holding that the CBP regulation defied the "clear intent of Congress," the appellate court ruled against the government appeal of CIT's decision, providing a win for the plaintiffs, the National Association of Manufacturers and The Beer Institute.

The U.S. partially opposed Ashley Furniture Industries' motion for an open-ended statutory injunction against the liquidation of its mattress imports, saying that the injunction should only run to the end of the first antidumping administrative review period. Making its case in the Court of International Trade, the U.S. said that Ashley failed to show that it will suffer immediate and irreparable harm for its mattress entries made after April 30, 2022 -- the date that "corresponds to the end of the period of review for the first administrative review" (Ashley Furniture Industries, LLC, et al. v. U.S., CIT #21-00283).

CBP deprived Norca Industrial Company of its due process rights and engaged in "unlawful speculation" when finding that Norca evaded antidumping duties, the company said in its motion for judgment at the Court of International Trade. Another in a long line of importers to challenge the constitutionality of the Enforce and Protect Act process, Norca argued that CBP failed to grant it proper access to the record evidence during the investigation and based its determination on allegations of document discrepancies that the agency never gave the importer a chance to explain (Norca Industrial Company, LLC et al. v. U.S., CIT #21-00192).

There’s been a steady recent uptick in the volume of Section 301 complaints at the Court of International Trade, but lawyers with active cases told us they're not sure if that has anything to do with the two-year anniversary of the Federal Register notice on Aug. 20, 2019, that put the List 4A tariffs into effect on Sept. 1, 2019, on goods from China. All the roughly 3,800 complaints inundating the court, and counting, seek to vacate the lists 3 and 4A tariffs and get the paid tariffs refunded on grounds that the duties are unlawful under the 1974 Trade Act and violate 1930 Administrative Procedure Act protections against sloppy rulemakings.

Washington state-based importer Keirton USA filed a complaint in the Court of International Trade on Aug. 19 after the U.S. District Court for the Western District of Washington found that the trade court was the case's proper jurisdictional home. Keirton, a self-described importer of "agricultural equipment used to process cannabis and other farm goods, including hemp and kale" is challenging CBP's deemed exclusions of shipments of such machinery as "drug paraphernalia" (Keirton USA, Inc. v. U.S. Customs and Border Protection, CIT #21-00452).

The Commerce Department found that the Rediscount Loan Program offered to Kenertec Power System is an export subsidy and thus excluded from Kenertec's upstream subsidy calculation in a countervailing duty investigation on utility scale wind towers from Indonesia, it said in Aug. 19 remand results submitted to the Court of International Trade. Bringing the results of the review in line with CIT's decision in the matter, Commerce dropped the loan program from the CV rate it calculated in the investigation, resulting in a de minimis CVD rate for Kenertec (PT. Kenertec Power System & Wind Tower Trade Coalition v. U.S., CIT #21-03687).

A Spanish exporters association moved to stay proceedings in one of its Court of International Trade cases pending the resolution of another one of its CIT cases, both concerning countervailing duty administrative reviews on ripe olives from Spain. The case the association moved to stay concerns the first administrative review, and shares much of the same fact pattern in the other case, Asociacion de Exportadores e Industriales de Aceitunas de Mesa et al v. United States. The association believes staying the case would narrow the issues for the court to decide on, specifically "(i) whether Commerce’s interpretation and application of Section 771B of the Tariff Act of 1930 was lawful with respect to the attribution of grower subsidies to processors of the subject merchandise; and (ii) whether Commerce’s interpretation and application of Section 771(5A)(D)(i) of the Tariff Act of 1930 was lawful in relation to BPS and Greening support payments." Both the U.S. and the defendant-intervenor Musca Family Olive Company stated that they do not oppose the motion (Asociacion de Exportadores e Industriales de Aceitunas de Mesa et al v. United States, CIT #21-00338).

The Commerce Department effectively locked out Siemens Energy's Spanish subsidiary, Siemens Gamesa Renewable Energy, from an antidumping duty investigation on utility scale wind towers from Spain, the exporter argued in an Aug. 18 complaint at the Court of International Trade. Having applied adverse facts available and denied all exporters the right to be individually examined, Commerce failed to live up to its statutory obligations, SGRE said (Siemens Gamesa Renewable Energy v. United States, CIT #21-00449).

The U.S. Court of Appeals for the Federal Circuit agreed with the Court of International Trade's rejection of CBP regulations that limit the amount of drawback that can be claimed on excise taxes, the CAFC said in a ruling. "We conclude that the expansive definition in the Rule, which extends drawback to situations in which tax is never paid or determined, conflicts with the unambiguous text of the statute," said the CAFC.

The Commerce Department properly held that three companies owned by the same, although estranged, family are not affiliated for purposes of collapsing the entities in an antidumping case, the Court of International Trade said in an Aug. 20 opinion. The agency's contention that the companies did not clear any of the three standards for collapsing multiple companies for purposes of calculating a dumping margin was proper, Judge Gary Katzmann ruled.