Court of International Trade

The Court of International Trade will stop liquidation of unliquidated entries subject to the List 3 or 4A Section 301 China tariffs imported by the thousands of plaintiffs in the Section 301 litigation, a majority of judges on the three-judge CIT panel said in a July 6 opinion that granted a preliminary injunction. "To give the parties time to implement appropriate procedures, gather pertinent information, and otherwise take necessary action to comply with this order, the court will temporarily restrain liquidation of any unliquidated entries of merchandise imported from China by any plaintiffs in the Section 301 Cases which are subject to List 3 or List 4A duties," it said.

The Commerce Department's decision to assume 24 working days per month for calculating surrogate labor rates, instead of 21 days, in an antidumping administrative review is unsupported, the Coalition for Fair Trade in Hardwood Plywood said in a June 24 motion for judgment in the Court of International Trade. The coalition said the agency failed to properly explain its switch to 24 working days after originally relying on 21 days in its preliminary determination (Coalition for Fair Trade in Hardwood Plywood v. United States, CIT #20-03930).

Many cases challenging findings of antidumping or countervailing duty evasion under the Enforce and Protect Act include claims that the process has violated an importer's constitutional rights, particularly under the Fifth Amendment. Case after case in the Court of International Trade argues elements of the EAPA process -- from the lack of notice provided to an importer that it's under investigation to the insufficient public summaries of proprietary information in the investigation -- violate importers' due process rights under the U.S. Constitution. However, the circumstances under which these claims may actually be heard by CIT may have yet to come, trade lawyers said.

Tools of the trade returned after temporary use abroad do not have to been actually used to be eligible for duty-free treatment under subheading 9801.00.85 Porsche Motorsports North America, said in a reply brief filed June 25. CBP has ruled in the past that it’s enough for goods to be made available for use to qualify for duty-free treatment, PMNA said in the brief, filed in support of its motion for judgment in a case at the Court of International Trade (Porsche Motorsports North America, Inc. v. U.S., CIT # 16-00182).

A particular market situation will no longer be part of the dumping margin calculation for oil country tubular goods from Korea after the Commerce Department submitted its remand results to the Court of International Trade on June 30. Commerce dropped the PMS finding after the court said that there was not enough evidence to support the agency's finding that the Korean steel market was heavily subsidized (SeAH Steel Co. v. United States, CIT #19-00086).

The Commerce Department continued to use Malaysia as its primary surrogate country in an antidumping administrative review after the Court of International Trade told the agency to further explain the departure from using Romania, Commerce said in June 30 remand results. The agency did, however, grant that Romania classifies as a "significant producer" of activated carbon, the subject merchandise, a departure from its final results. The agency also switched to using Malaysian surrogate values for a key input in activated carbon for most of the mandatory respondents' suppliers.

Steel nail importer Hilti, Inc. filed a consent motion to stay proceedings on June 30 in its Court of International Trade case challenging the legality of the expansion of the Section 232 tariffs to cover steel and aluminum “derivatives” pending a key U.S. Court of Appeals for the Federal Circuit opinion on the same topic. CIT recently halted liquidation of Hilti's entries pending the resolution of the case (see 2106300032). Hilti wants to pause the case until the Federal Circuit reaches an opinion in PrimeSource Building Products v. U.S. CIT previously held in the PrimeSource case that the Section 232 tariff expansion onto derivative products violated statutory time limits. Counsel for Hilti conferred with Ann Motto of the Justice Department, who consented to the stay (Hilti, Inc., v. U.S. et al., CIT # 21-00216).

The Department of Justice said in June 30 oral argument before the Court of International Trade that its positions on the proper jurisdiction for cases challenging either the exclusion or seizure of goods identified as drug paraphernalia are consistent in district courts and CIT. If an import is excluded from entry by CBP, CIT has jurisdiction. If the good is seized, the district court has jurisdiction, it said. DOJ argues that CIT doesn't have jurisdiction to hear a case brought by Root Sciences since CBP seized a cannabis crude extract recovery machine from the importer rather than excluding it (Root Sciences, LLC v. United States, CIT # 21-00123).

The Court of International Trade ruled June 29 it doesn't have jurisdiction over one of 12 entries of plywood from China in a customs case because the plaintiff didn't protest that entry's reliquidation. The lawsuit will continue over the remaining 11 entries.

Plexus Corp., the plaintiff in a customs classification case over printed circuit board assemblies used in audio-visual transmission equipment, wants proceedings stayed pending the Department of Justice's consideration of its settlement offer. According to the June 30 motion to stay in the Court of International Trade, Plexus said that a stay would help avoid "incurring unnecessary significant additional expenses" should the settlement offer be accepted (Plexus Corp. v. United States, CIT #13-00343).