The Court of International Trade should dismiss an importer's challenge of CBP's deemed exclusion of its apparel imports because the protest was filed the day before the apparel was actually deemed excluded, the Department of Justice said in a July 19 brief backing the motion to dismiss. Due to this premature filing, DOJ said the court lacks Section 1581(a) jurisdiction on the matter (Alive Distributor Inc. v. United States, CIT #21-00236).

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

Importers ARP Materials and Harrison Steel Castings will file an appeal of a Court of International Trade opinion to the U.S. Court of Appeals for the Federal Circuit, according to a July 21 notice of appeal. The decision, penned by Judge Miller Baker, found importers must file protests to preserve their ability to obtain refunds under Section 301 tariff exclusions (see 2106110053). The court said it did not have the jurisdiction to hear ARP and Harrison's challenge because the importers did not timely file protests of the CBP liquidations imposing the Section 301 tariffs (The Harrison Steel Castings Co. v. United States, CIT #20-00147).

The Court of International Trade remanded the Commerce Department's particular market situation adjustment to sales-below-cost test and use of partial adverse facts available in a July 9 decision made public on July 19. As the court has repeatedly held, there is no statutory authority for Commerce to make a PMS adjustment to the cost of production for a sales-below-cost test when using normal value, leading to Judge Claire Kelly to send the case back to the agency for further consideration.

The Court of International Trade in a July 20 order granted the Commerce Department's request for a partial voluntary remand despite the mandatory respondent's objections. Judge Jane Restani allowed Commerce to take another look at its final results in the countervailing duty investigation into utility scale wind towers from Indonesia to reconsider whether it “improperly included an export subsidy in its upstream subsidy calculation.” The issue was broached with the court “some time ago,” so a simple decision on the matter appears likely, the judge said (PT. Kenertec Power System v. U.S., CIT #20-03687). The government's remand results are due Aug. 19, and the parties have until Aug. 23 to notify the court if a supplemental briefing is required, the order said.

Justice Department lawyers “are still conferring internally” about modifications proposed by the Section 301 plaintiffs to the July 6 preliminary injunction (PI) order freezing liquidations of unliquidated customs entries from China with lists 3 and 4A tariff exposure, said a government filing late Tuesday at the U.S. Court of International Trade, made “under protest” due to defendants’ opposition to the PI. “A lack of response to any specific proposal should not be interpreted as agreeing to that proposal,” Justice said. The government supports reliquidating, if the plaintiffs win the litigation, any entries that liquidated inadvertently during the PI order’s temporary restraining order (TRO) period due to CBP limitations, it said. “CBP only has the functionality to return liquidated entries to unliquidated status one entry at a time, and very few CBP personnel are knowledgeable and trained to utilize this very limited and extraordinary functionality,” Justice said.

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

The Court of International Trade on July 20 granted a request for voluntary remand from the Commerce Department to reconsider two denied requests from Maple Leaf Marketing for exclusions from Section 232 tariffs. In its motion requesting the remand, Commerce said that the redo was appropriate given the similarities between Maple Leaf's situation and a 2020 case in front of CIT, JSW Steel Inc. v. U.S. In that case, the court found that Commerce's exclusion denials were "devoid of explanation and frustrate judicial review." In its request in the Maple Leaf case, Commerce said that it "could grant one or both of the exclusion requests that Maple Leaf challenges in this case." Commerce originally rejected the exclusions since it found that the "domestic industry was capable of manufacturing sufficient quantities of merchandise of sufficient quality" (Maple Leaf Marketing, Inc. v. U.S., CIT #20-00125).

The Commerce Department resubmitted remand results on July 16, fixing clerical errors in the dumping margins for non-individually examined respondents in an antidumping review on certain oil country tubular goods from South Korea. After initially fixing clerical errors in a resubmission of the remand results, which stemmed from an April Court of International Trade decision, the July 16 filing marks the second time that Commerce has had to amend errors in its dumping margin calculation. The recalculated rates have now changed from 16.73% to 5.28% for SeAH Steel Corp., from 32.24% to 9.77% for Nexteel Co., and from 24.49% to 7.53% for the non-examined companies. The remand results also reversed Commerce's initial finding of a particular market situation in the South Korean steel market (see 2107010048) (SeAH Steel Co. v. United States, CIT #19-00086).

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