Customs Duty

The Customs Rulings Online Search System (CROSS) was updated Sept. 9 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):

The Commerce Department continued to apply adverse facts available relating to the agency's inability to verify two mandatory respondents' non-use of China's Export Buyers Credit Program in a countervailing duty case, despite lengthy remand instructions from the Court of International Trade. Answering a series of nine questions from Judge Timothy Reif, Commerce thoroughly explained why it continues to apply AFA on this critical issue absent further collaboration with the Chinese government, in its remand results. Likening the saga over the EBCP in the court to the film Groundhog Day, Reif sought an explanation from Commerce that would firmly answer the question of whether AFA was legitimately applied on the issue (Guizhou Tyre Co. Ltd. v. United States, CIT #19-00032).

SMA Surfaces, Inc., formerly known as Polarstone US, and Cheng Shin Rubber Ind. Co. each filed a complaint at the Court of International Trade challenging two different scope rulings on antidumping and countervailing duty orders. SMA challenged the Commerce Department's decision to not exclude three specific surface products from the AD/CVD orders on quartz surface products from China, while Cheng Shin appealed Commerce's decision to not exclude the company's light-truck spare tire models from the less-than-fair-value investigation into passenger vehicle and light truck tires from Taiwan (SMA Surfaces, Inc. (F/K/A Polarstone US) v. U.S., CIT #21-00399) (Cheng Shin Rubber Ind. Co. Ltd. v. U.S., CIT #21-00398).

Plaintiff Nucor Corp. ignored the "thorough explanation" that the Commerce Department gave in its remand results showing how the agency conducted its less-than-adequate remuneration (LTAR) analysis regarding the electricity market in South Korea, the U.S. said in a Sept. 7 reply brief. Further backing its remand at the Court of International Trade, the Department of Justice argued that Commerce's remand complies with the mandate issued by the U.S. Court of Appeals for the Federal Circuit by properly analyzing whether the Korean Electricity Corp. (KEPCO) recovered its costs of production plus a profit (POSCO, et al. v. United States, CIT #17-00137).

Dr. Bronner's Magic Soaps' Court of International Trade case challenging CBP's antidumping and countervailing duty evasion finding should continue, even though the relevant entries have liquidated, because the lawsuit was properly filed under Section 1581(c), the company said in a Sept. 1 reply brief. Responding to a partial motion to dismiss from the Department of Justice, Dr. Bronner's said that since the Enforce and Protect Act, under which the evasion finding was made, is codified under 19 USC 1517, the proper jurisdiction for its challenge of an EAPA investigation is Section 1581(c) (All One God Faith, Inc., et al. v. United States, CIT #20-00164).

The U.S. Court of International Trade vacated the repository requirement imposed in its July 6 preliminary injunction (PI) order for importers to request suspending the liquidation of customs entries from China with Section 301 lists 3 or 4A tariff exposure, said an order signed Sept. 8 by Judges Claire Kelly and Jennifer Choe-Groves. The government will liquidate those entries “in the ordinary course” and refund the money with interest if the tariffs are declared unlawful, “should that decision become final and conclusive, including all appeals,” it said. The court also vacated the PI order’s temporary restraining order period when no entries could have liquidated, with or without the repository.

Furniture importer Aspects Furniture International has a protectable interest in an antidumping duty evasion case at the very least due to "goodwill, reputation, and freedom to take advantage of business opportunities" concerns, the importer said in an Aug. 30 filing in the Court of International Trade. Responding to the Department of Justice's arguments countering its initial motion for judgment, AFI also said that, contrary to the government's position, CBP's limited administrative avenues to submit written arguments during the investigation were insufficient from a constitutional perspective to reject AFI's due process violation claims (Aspects Furniture International, Inc. v. United States, CIT #20-03824).

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A lawsuit in the U.S. District Court for the Western District of North Carolina over a shipping company's alleged gross negligence in handling a hemp shipment should be tossed for lack of jurisdiction, defendant Planet Nine Private Air said in a Sept. 1 brief. If the court decides not to dismiss the matter, it should be transferred to the U.S. District Court for the Central District of California, since that is where Planet Nine primarily does business and the signing of the contract in dispute was held there, the brief said (We CBD, LLC et al. v. Plante Nine Private Air, LLC, W.D.N.C. #21-00352).

The Court of International Trade remanded parts and sustained parts of the Commerce Department's final results in the fifth administrative review of the countervailing duty order on crystaline silicon photovoltaic cells from China, in a Sept. 3 order. Judge Jane Restani sustained Commerce's specificity finding for the aluminum extrusions for less than adequate remuneration (LTAR) program, the agency's chosen benchmark for the land value for the LTAR program, and plaintiff and mandatory respondent Canadian Solar's lack of creditworthiness in 2016. Conversely, the judge remanded Commerce's entered value adjustment finding for Canadian Solar and its determination that the respondents benefited from China's Export Buyer's Credit Program.