Language disagreements remain between the Section 301 plaintiffs and the government in proposing modifications to the July 6 preliminary injunction (PI) order at the U.S. Court of International Trade that would eliminate the need for a Customs and Border Protection repository for customs entries from China with Lists 3 and 4A tariff exposure, said the two sides in a joint status report (in Pacer) Friday. It was the last date proposed modifications in the PI order were due. DOJ wants the order worded to say that refunds of liquidated entries would be available only to importers of record who paid the tariffs, if plaintiffs prevail on the merits at the end of the litigation, it said. It makes “no sense” for plaintiffs to oppose the language, as the plaintiffs said they do, because “only importers of record who are plaintiffs could possibly seek reliquidation and, if approved by the courts, be directly affected by any reliquidation,” said the government. Akin Gump lawyers for sample case plaintiffs HMTX Industries and Jasco Products responded that while the “vast majority” of the Section 301 cases involve importers of record, some of the stayed cases involve plaintiffs that don’t fit that description. The issue hasn't been raised in recent status conferences and filings, and modifying the PI order is not the “proper vehicle” for resolving it, they said. Plaintiffs “stand ready” to continue working with the government on “streamlining the process for implementing the refund remedy in preparation for the end of this litigation” if the plaintiffs win, said the Akin Gump attorneys. But DOJ took a different tone. “In our view, plaintiffs are unlikely to succeed on the merits of the Section 301 cases, and no such resource-intensive task will be necessary” at the end of the trial to properly dole out tariff refunds, it said. “In light of the extensive resources we have already dedicated to compliance with the preliminary injunction, unless ordered by the Court, we have no reason to continue working on a reliquidation or refund process unless and until the plaintiffs prevail on the merits.” Akin Gump's lawyers, on the other hand, said they defer to the court “on the proper schedule for such efforts.”
The Commerce Department switched its original determination and relied on the actual costs of prime and non-prime products as reported by an antidumping respondent in Sept. 2 remand results filed at the Court of International Trade. Following the second remand in the case, Commerce made the change after the court sustained the other seven issues under contention in the first remand (Husteel Co., Ltd., et al. v. United States, CIT #19-00112).
The following lawsuits were recently filed at the Court of International Trade:
Aluminum extrusion producer Kingtom Aluminio's move for partial access under a protective order in an Aug. 27 filing to file additional affidavits and a brief in support of its motion to intervene in an antidumping duty evasion case met with light resistance from the U.S. and defendant-intervenor. Needing the go-ahead from the Court of International Trade, Kingtom also filed for an extension of time to submit its response (Global Aluminum Distributor LLC, et al. v. United States, CIT Consol. 21-00198).
Tapered roller bearing importer Wanxiang America Corporation does not have jurisdiction to challenge guidance issued from the Commerce Department to CBP on the assessment of antidumping duties, the U.S. Court of Appeals for the Federal Circuit said in a Sept. 2 decision upholding a ruling from the Court of International Trade. Jurisdiction under the court's residual jurisdiction, Section 1581(i), cannot be claimed by "creative pleading," and proper jurisdiction for Wanxiang America's case could have been claimed elsewhere based on the "true nature of the action," the court said. The Federal Circuit pointed to a CIT's denied protest jurisdiction under Section 1581(a), and antidumping and countervailing duty challenge jurisdiction under Section 1581(c), as potential jurisdictional homes for the action.
Chinese wood cabinet and vanities exporter Dalian Meisen Woodworking Co. moved, unopposed, for a preliminary injunction against liquidation of its entries in a countervailing duty challenge at the Court of International Trade, in a Sept. 1 filing. That's despite the fact that the challenge is of the underlying countervailing duty investigation on the wood cabinet and vanities from China, and liquidation of the entries is suspended until the conclusion of the first administrative review (Dalian Meisen Woodworking Co., Ltd. v. U.S., CIT #20-00110).
The three-judge panel presiding over the Section 301 litigation at the U.S. Court of International Trade appeared during a 27-minute status conference Wednesday to be edging closer to resolving the two-month impasse over suspending liquidations of customs entries with Lists 3 and 4A tariff exposure.
The Court of Appeals for the Federal Circuit upheld a Court of International Trade ruling in a Sept. 2 order, finding it does not have jurisdiction to hear Chinese automobile parts exporter Wanxiang America Corporation's lawsuit. Claiming the trade court's residual Section 1581(i) jurisdiction, Wanxiang filed a due process claim against the Commerce Department's guidance to CBP instructing the customs agency to deny Wanxiang the company-specific antidumping duty rate for its tapered roller bearings entries and apply the country-wide rate. The appellate court found it would have had jurisdiction if there were a denied customs protest under Section 1581(a). CAFC also could have had Section 1581(c) jurisdiction if Wanxiang initiated a test shipment and sought an administrative review and remained unsuccessful in pursuing the company-specific rate, the court said.
The proposed merger between Magnachip Semiconductor and Wise Road Capital (see 2106150039) was likely never going to avoid U.S. scrutiny, a trade lawyer said, and it is puzzling why the two companies didn’t voluntarily submit a declaration to the Committee on Foreign Investment in the U.S. Scott Flicker, who advises clients on CFIUS matters for Paul Hastings, said the decision was either a mistake or a calculated decision by the two companies’ lawyers.
The three-judge panel presiding over the Section 301 litigation at the U.S. Court of International Trade appeared during a brief, 27-minute status conference Sept. 1 to be edging closer to resolving the two-month impasse over suspending the liquidation of customs entries with lists 3 and 4A tariff exposure.