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.
Court of International Trade activity
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 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 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 State Department released the 2020 Digest of United States Practice in International Law, detailing developments in the field for the 2020 calendar year. The publication provides a record of the “views and practice of the U.S. Government in public and private international law,” the State Department said Aug. 18. The publication discusses key court decisions on topics ranging from nationality, citizenship and passports to international crimes. A section on international trade covers investment disputes under free trade agreements, World Trade Organization developments and intellectual property and Section 301 proceedings.
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).
The following lawsuits were recently filed at the Court of International Trade:
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).
OtterBox's victory in a Court of International Trade case setting a lower duty rate in a customs challenge on smartphone covers cannot be extended to a prior disclosure made by OtterBox, CIT said in an Aug. 18 opinion. Judge Claire Kelly ruled that the court did not have the jurisdiction to make the determination that entries not part of the Summons of the case should be reliquidated.
The Court of International Trade sustained the Commerce Department's remand results in an antidumping duty case over the question of whether to "collapse" affiliate entities since they were owned by members of the "same, albeit estranged, family." In an Aug. 20 opinion, Judge Gary Katzmann held that Commerce properly reversed its original determination that the three companies were affiliated, since they did not clear the three requirements for collapsing given entities. In doing so, Commerce dropped its application of adverse facts available and gave Echjay Forgings Private Limited a 4.58% dumping margin.