Court of International Trade

A proper extension of liquidation cannot be challenged in court before the entry liquidates, said the U.S. Court of Appeals for the Federal Circuit in a decision issued June 24. Only if CBP doesn’t extend liquidation or gives improper notice to the importer can a lawsuit be filed to obtain a court order that says its entries have liquidated, said CAFC as it affirmed the Court of International Trade’s decision that it couldn’t hear a lawsuit related to extensions of liquidation while the entries were under CBP and ICE investigation.

Court of International Trade Chief Judge Donald Pogue is retiring effective July 1, and will assume senior status on the court, according to a notice on the CIT website. Judge Timothy Stanceu will assume the chief judgeship, it said. The move leaves a spot open on the trade court for a new judge.

“Sports equipment” does not include clothing, confirmed the U.S. Court of Appeals for the Federal Circuit June 20 as it upheld a lower court ruling that football uniforms imported by Riddell should be classified as apparel. Regardless of whether it is for exclusive use in a sport, apparel should be classified as apparel in the Harmonized Tariff Schedule unless it contains a “character-transforming” amount of protection, said CAFC. Riddell’s football uniforms, imported without pads, do not, it said.

The back-and-forth between domestic petitioners and the Commerce Department during antidumping and countervailing duty investigations is an important factor in deciding whether products are included within the scope of duties, said the U.S. Court of Appeals for the Federal Circuit on June 20 as it reversed a lower court ruling. The Court of International Trade had in 2013 found Fedmet’s magnesium alumina carbon bricks (MACBs) to be covered by AD and CV duties on magnesia carbon bricks from China, along the way affirming Commerce’s determination that the scope itself was ambiguous. But according to CAFC, communications between Commerce and Resco Products, the domestic company that had originally requested the duties, resolved all ambiguity in favor of excluding MACBs from the scope.

The Court of International Trade on June 17 again dismissed a lawsuit brought by Ford on whether reconciliation entries it had filed had deemed liquidated. The court found that Ford’s lawsuit was too late because it was filed over two years after the entries would have deemed liquidated. Ford argued that the two-year statute of limitations should run from when it found out about the issue only two months prior to filing suit, but the court found that Ford should have known the entries hadn’t deemed liquidated when one year came and went after filing the entries without any notice of liquidation from CBP.

The Court of International Trade has put liquidation on hold for entries in 2011-12 of frozen fish fillets from Vietnam exported by eight companies, while it considers a challenge to the final results of an antidumping duty administrative review. CIT’s preliminary injunction prevents liquidation of any unliquidated entries of frozen shrimp entered between Aug. 1, 2011 and July 31, 2012 that were exported by the following companies: An Giang Fisheries Import and Export Joint Stock Company; Asia Commerce Fisheries Joint Stock Company; Cuu Long Fish; Hiep Thanh Seafood; International Development and Investment Corporation; NTSF Seafoods; QVD Food Company; and Southern Fishery Industries. The companies are challenging the AD duty rates they were assigned in April (see 14040412).

The Court of International Trade on June 11 reversed position on its award of attorney's fees to the Commerce Department and US Magnesium for alleged misconduct by Tianjin Magnesium International (TMI) during an antidumping duty administrative review on pure magnesium from China and a subsequent court case. CIT Judge Nicholas Tsoucalas had excoriated TMI in an April opinion (see 13042503), awarding fees because of “TMI’s repeated efforts -- through counsel -- to obstruct Commerce’s exercise of its statutory duties, to delay proceedings through frivolous argumentation and filings, and to mislead the court on material matters of fact and law constitute an intolerable level of vexatiousness and bad faith.” But after TMI filed a motion for reconsideration, Judge Richard Eaton disagreed that the company’s conduct was egregious. In each instance cited by Tsoucalas, Eaton found a reasonable explanation for TMI’s actions. “The invocation of the court’s inherent power to award attorney’s fees must be done with ‘restraint and discretion,'” said Eaton. “On reconsideration, the court finds plaintiff’s behavior, taken as a whole, did not warrant the imposition of attorney’s fees.”

The Commerce Department can’t expand the scope of antidumping or countervailing duty orders to include third-country merchandise unless it conducts an anticircumvention inquiry, said the Court of International Trade on June 10 as it ordered the agency to reconsider the 2008-09 antidumping duty administrative review on tapered roller bearings from China. Commerce had found roller bearings that had been finished in Thailand to be subject to duties on Chinese product, after concluding that under the “totality of the circumstances” they hadn’t much changed from their Chinese-made inputs. But Commerce ignored the established procedure for making third-country merchandise subject to AD duties, possibly because an anticircumvention inquiry would have yielded a different result, said CIT.

The Court of International Trade is finalizing the deletion of a rule on payment of costs related to depositions. CIT is deleting Rule 26.1, which had said “the party requesting the deposition, unless otherwise provided for by stipulation or by court order, will pay all costs, charges, and expenses incident to taking it.” The trade court had proposed the change in April, and says it got no comments in response. The change conforms CIT rules to the Federal Rules of Civil Procedure, it had said.

In a move that could lower the “all others” countervailing duty rate on aluminum extrusions from China, the U.S. Court of Appeals for the Federal Circuit ruled on June 3 that the Commerce Department has to include the rates of voluntary respondents in the “all others” rate it calculates in countervailing duty proceedings.