The government must go beyond merely asserting intentional misclassification even when dealing with a nonresponsive defendant, Court of International Trade Judge Mark Barnett said in an Oct. 30 ruling. The Department of Justice requested a default judgment in a case against NYWL Enterprises. DOJ alleged that the company purposefully and misclassified 107 entries of Siamese coaxial cable, and sought “a penalty in the amount of $3,760,070.00 (equal to eight times the total lost revenue) plus interest" for fraud.
Court of International Trade
The United States Court of International Trade is a federal court which has national jurisdiction over civil actions regarding the customs and international trade laws of the United States. The Court was established under Article III of the Constitution by the Customs Courts Act of 1980. The Court consists of nine judges appointed by the President and confirmed by the Senate and is located in New York City. The Court has jurisdiction throughout the United States and has exclusive jurisdictional authority to decide civil action pertaining to international trade against the United States or entities representing the United States.
The Commerce Department is amending countervailing duty cash deposit rates for some exporters subject to CV duties on crystalline silicon solar cells from China (C-570-980), it said in a notice implementing a recent Court of International Trade decision that invalidated rates the agency set in the final results of an administrative review it issued in 2018 (see 1807200007 and 1810290015). Commerce is lowering cash deposit rates for Canadian Solar International, ET Solar Industry Limited and Hangzhou Zhejiang University Sunny Energy as a result of the decision, according to the notice released Oct. 28. Changes are applicable to entries on or after Oct. 29, as follows:
The International Trade Commission updated the tariff schedule late Oct. 26 to restore an exemption for bifacial panels from safeguard duties on crystaline solar photovoltaic cells pursuant an order from the Court of International Trade. The exemption had been eliminated under an Oct. 10 presidential proclamation, but the CIT issued a temporary restraining order Oct. 24 that blocked the proclamation from taking effect. The court order specifically ordered the government to make no changes to the tariff schedule that would end the bifacial panel exemption.
The following lawsuits were filed at the Court of International Trade during the week of Oct. 19-25:
The International Trade Commission updated the tariff schedule late Oct. 26 to restore an exemption for bifacial panels from safeguard duties on crystalline solar photovoltaic cells pursuant an order from the Court of International Trade. Revision 25 to the Harmonized Tariff Schedule of the United States again adds U.S. note 18(c)(iii)(15), which provides for the exemption, to subchapter III of chapter 99. The provision had been removed in the prior HTS revision (see 2010260025).
CBP issued a CSMS message Oct. 26 announcing changes to the tariff schedule to implement a recent proclamation amending safeguard duties on crystalline silicon photovoltaic cells, including the elimination of an exemption for bifacial panels (see 2010130028). The announcement came despite a last-minute court order blocking the proclamation’s withdrawal of the bifacial panel exclusion. The CSMS message does not mention the court order. A CBP spokesperson said the agency "is in the process of issuing additional guidance on this subject." The Office of the U.S. Trade Representative and the Justice Department didn’t comment.
Law firm Husch Blackwell has no objection to a Department of Justice proposal to designate the first-filed HMTX Industries-Jasco Products complaint as a test case in the massive Section 301 litigation, but “there is no reason that it should be chosen as the only test case without further analysis,” it said Oct. 22 in a partial opposition to the government’s Oct. 19 motion for case management procedures (see 2010200022). It told the Court of International Trade that it represents 75 “individually named plaintiffs” of the “approximately 6000 plus” importers seeking to vacate the lists 3 and 4A tariff rulemakings and get the duties refunded.
Joseph Barloon, general counsel for the Office of the U.S. Trade Representative and acting deputy USTR, was nominated by the White House to be a judge on the Court of International Trade. Before joining USTR, Barloon was a partner at Skadden Arps.
HMTX Industries and Jasco Products, the initial filers of the Section 301 litigation seeking to vacate the lists 3 and 4A tariff rulemakings and get the duties refunded, strongly oppose the Department of Justice’s prolonged briefing format and schedule proposed Oct. 19 in a motion for case management procedures (see 2010200022), Akin Gump said in a response Oct. 22 at the Court of International Trade. Under the government’s proposal, the parties would not begin to argue the “merits of this dispute” before 2022 or beyond, it said. “Given the ongoing harms to thousands of plaintiffs, among others, that protracted schedule is unacceptable.”
Grunfeld Desiderio counseled clients in the Section 301 litigation to consider a “sliding scale” of options on filing timely complaints within the two-year statute of limitations window that qualifies importers to recover duties paid if the suits are successful, partner Ned Marshak said in an Oct. 19 interview. The firm filed more than 800 of the nearly 3,600 complaints inundating the Court of International Trade. Its Sept. 16 complaint on behalf of YC Rubber was the first to follow Akin Gump's suit for lead plaintiff HMTX Industries.