The Court of International Trade struck down the U.S. Trade Representative's attempt to withdraw an exclusion on bifacial solar panels from the Section 201 safeguard measures on solar cells in a Nov. 17 decision. Judge Gary Katzmann found that USTR lacked the statutory authority to withdraw the exclusion. The opinion is the second in as many days over the Trump administration's termination of the exclusion, following a Nov. 16 decision that struck down the presidential proclamation issued after CIT imposed a preliminary injunction on USTR's action.
Court of International Trade activity
In remand results filed at the Court of International Trade, the Commerce Department continued to find that antidumping respondent Jilin Forest Industry Jinqiao Flooring Group Co. has failed to establish its eligibility for a separate rate, making it part of the China-wide entity, and that the application of Commerce's non-market economy definition to Jinqiao Flooring was reasonable. The remand results relied heavily on a June U.S. Court of Appeals for the Federal Circuit case, China Manufacturers Alliance v. U.S., which established that China-wide rates can still be based on adverse facts available even if no members of the country-wide entity were found to be uncooperative (Jilin Forest Industry Jinqiao Flooring Group Co., Ltd., v. United States, CIT #18-00191).
The DOJ further argued for the dismissal of a lawsuit seeking Section 232 steel and aluminum tariff exclusions since the 19 entries that are the subject of litigation have not been liquidated. In a Nov. 12 brief filed at the Court of International Trade, DOJ said that the plaintiffs, Borusan Mannesmann and Gulf Coast Express Pipeline, wrongly argue that their protests don't concern the tariff classification of their merchandise. The protests at issue seek use of a tariff exclusion, which is a challenge of the tariff classification, DOJ said (Borusan Mannesmann Boru Sanayi ve Ticaret A.S., v. U.S., CIT #21-00186).
The 1974 Trade Act “does not authorize” the Office of the U.S. Trade Representative to increase the “original” Section 301 lists 1 and 2 tariffs on Chinese goods under the “circumstances present” in the lists 3 and 4A duties, argued Akin Gump lawyers for sample case plaintiffs HMTX Industries and Jasco Products, in their final written brief Nov. 15 at the Court of International Trade before the litigation moves to oral argument Feb. 1, 2022. HMTX and Jasco, plus the thousands of complaints their September 2020 lawsuit sparked, seek to get the lists 3 and 4A tariffs thrown out and the paid duties refunded with interest.
The U.S. Court of Appeals for the Federal Circuit dismissed on Nov. 16 a case challenging a 2020 amendment to an antidumping suspension agreement on sugar from Mexico following a voluntary dismissal motion from the Department of Justice. The appellate court previously upheld the Court of International Trade's denials of two related cases (see 2107190038). Earlier this month, both DOJ and the plaintiff-appellee CSC Sugar said they believe it would be appropriate for the court to dismiss the consolidated appeal (see 2111020069) (CSC Sugar LLC v. U.S., Fed. Cir. #20-1275).
The International Trade Commission's finding that imports of methionine from Spain and Japan injured the domestic methionine industry is not based on substantial evidence and should be remanded, exporter Adisseo Espana and its U.S. subsidiary argued in a Nov. 12 complaint to the Court of International Trade. In finding domestic industry harm, the ITC spurned the commission's own traditional quarterly price comparisons in favor of "less reliable, anecdotal evidence," Adisseo said (Adisseo Espana S.A., et al. v. United States, CIT #21-00562).
Antidumping petitioner Wheatland Tube Company and the Department of Justice will appeal a Court of International Trade ruling on the 2017-18 administrative review of the antidumping duty order on circular welded carbon steel pipes and tubes from Thailand, the petitioner and DOJ said in two Nov. 15 notices of appeal. In the case, CIT found that the Commerce Department cannot make a cost-based particular market situation adjustment in the sales-below-cost test. On remand, Commerce dropped the PMS adjustment but continued to find that a PMS existed in Thailand (see 2106010026). The case is being appealed to the U.S. Court of Appeals for the Federal Circuit (Saha Thai Steel Pipe Public Co. Ltd. v. United States, CIT #19-00208).
CBP erred in its classification of importer Alpi International's stress toys, since the agency's classification decision cut against its practice regarding the same toys for nearly 30 years, Alpi argued in its Nov. 12 complaint filed at the Court of International Trade (Alpi International, Ltd. v. United States, CIT #21-00064). Since 1993, Alpi imported Squeezies stress toys under Harmonized Tariff Schedule subheading 9503.00.90, which provides for toys. This changed in November 2019, however, when CBP then changed its classification decision, instead liquidating the stress toys under HTS subheading 3926.40.0090. CBP said that the toys fit under this subheading since they are not shaped like a ball and ornamental plastic statuettes. Alpi argued that the toys are more accurately described under its preferred HTS subheading and that CBP failed to give the toys the disputed classification throughout the years it was being imported. As early as July 2018, CBP examined the toys and came up with the decision that they should be classified under subheading 9503.00.0090, the complaint said. Lastly, CBP violated its past practice by failing to classify the toys under Alpi's preferred classification, the company said.
A key U.S. Court of Appeals for the Federal Circuit decision that found that the president can impose greater Section 232 national security tariffs beyond the 105-day deadline for action laid out in the statute is being appealed to the U.S. Supreme Court. Transpacific Steel, Borusan Mannesmann and The Jordan International Company filed a petition Nov. 12 in an attempt to get the high court to side with the original Court of International Trade decision, which held that the president may not make such adjustments.
The Court of International Trade on Nov. 16 ruled against President Donald Trump's decision to revoke an exclusion for bifacial panels from Section 201 safeguard duties on solar cells. The trade court ruled his proclamation revoking the exclusion, issued in the midst of litigation over a similar action previously taken by the U.S. Trade Representative, was a "clear misconstruction" of the law and amounted to action outside the president's authority. The court said that the law only permits the president to make "trade-liberalizing modifications" to existing safeguards.