Jacob Kopnick

The following lawsuits were recently filed at the Court of International Trade:

Turkish steel exporter Habas Sinai ve Tibbi Gazlar Istihsal Endustrisi A.S. was denied a petition for a panel rehearing by the U.S. Court of Appeals for the Federal Circuit, a May 20 order said. Habas had been seeking to overturn a March 30 Federal Circuit decision that affirmed the Commerce Department's imposition of a 14.01% countervailing duty on its exports of steel concrete reinforcing bar from Turkey. In its investigation, Commerce imposed its facts otherwise available principle since the exporter was not forthcoming about benefits received under a Turkish duty drawback program. Commerce derived the 14.01% rate from a prior rate the agency assessed on an export tax rebate program in a 1986 CVD investigation on welded pipe and tube from Turkey. Habas requested a rehearing of the decision on the grounds that it is unlawful to use an adverse facts available (AFA) rate from a program that Commerce has verified to have been terminated and that it is unlawful for the agency to fail to apply its own practice in selecting a rate for application of AFA.

Importer Strategic Import Supply wants a reconsideration of its case in the Court of International Trade, seeing that CBP granted a nearly identical protest to the one that was the subject of dismissal in an April 21 opinion. In a May 19 motion for reconsideration, Strategic Import Supply argued that CBP's recent decision to assess a lower countervailing duty rate on imports of passenger vehicle and light truck tires from China is new evidence that the underlying protests in the CIT case were timely filed and that CBP acted in an "arbitrary and capricious manner" (Acquisition 362, LLC v. United States, CIT #20-03762).

The following lawsuits were recently filed at the Court of International Trade:

The Supreme Court of the U.S. denied a petition for a writ of certiorari filed by 24 importers challenging enhanced security fees (ESF) on goods collected by the Puerto Rico Ports Authority. Denying the petition on May 17, the Supreme Court ended the challenge of fees that importers claim cost more than $150 million. To collect the fees, PRPA contracted with Rapiscan Systems Inc., which conducted "non-intrusive scanning of shipping containers" entering Puerto Rico through the Port of San Juan. Despite a federal district court order enjoining Puerto Rico from collecting ESFs from operations not being scanned, Rapiscan, PRPA and Rapiscan's affiliate S2 Services Puerto Rico, continued to collect the ESFs for all cargo, including non-scanned containers. The practice only ended when the Puerto Rico Court of Appeals ordered PRPA to cease and desist from carrying out the collection of ESFs.

The Court of International Trade upheld the Commerce Department's second remand results which, under court order, added the full amount of duty drawback adjustment to two companies' export prices and nixed two circumstances of sale adjustments in an antidumping case on Turkish steel. Judge Gary Katzmann in his May 20 opinion ruled against arguments from petitioner Nucor Corporation that Commerce find another "duty neutral" methodology for allocating the drawback adjustment. Commerce had originally applied the adjustment to all production, effectively reducing the adjustment to export prices for Icdas Celik Enerji Tersane and Habas Sinai in an antidumping duty investigation on carbon and alloy steel wire rod from Turkey.

The following lawsuits were recently filed at the Court of International Trade:

Judge Claire Kelly at the Court of International Trade probed the Commerce Department's process of determining whether surrogate country data is aberrational in antidumping cases, during May 19 oral arguments. In a case where she granted a motion for reconsideration following a U.S. Court of Appeals for the Federal Circuit ruling on a nearly identical issue, Kelly questioned Commerce's lack of clear criteria and "know it when I see it" approach.

The Court of International Trade denied a stay of court proceedings in one antidumping challenge brought by South Korean steel exporter SeAH Steel, but it has yet to rule on a motion to stay in separate challenge by the same company. In a May 18 order, Judge Jennifer Choe-Groves shut the door on the possibility of a stay in a case challenging the final results of the 2016-17 antidumping duty administrative review of certain oil country tubular goods from South Korea, but did not comment on a case challenging the 2017-18 administrative review of the same product. In the latter case, Choe-Groves filed a letter last week informing the parties that the court is considering a stay pending a final decision in the appeal of a case in the U.S. Court of Appeals for the Federal Circuit over whether a particular market situation (PMS) existed in South Korea for the subject merchandise during the 2015-16 review period (see 2105140028).

A group of surety trade associations' attempt to file an amicus curiae brief in support of American Home Assurance Company in the Court of International Trade hit a snag when the Department of Justice opposed their filing. Though DOJ said it does not normally oppose such requests as an amicus brief, it nonetheless moved to block the brief, arguing it was untimely filed, in a May 19 memo. The surety groups consist of the Customs Surety Association, the Customs Surety Coalition, the International Trade Surety Association, the National Association of Surety Bond Producers, Inc. and the Surety & Fidelity Association of America.