The president may impose greater Section 232 national security tariffs beyond the 105-day timeframe for action set out in the statute, the U.S. Court of Appeals for the Federal Circuit said in a July 13 ruling. Overturning a lower court ruling, the Federal Circuit found that the underlying law's deadline for the president to take "action" can refer to a "plan of action" carried out over a period of time following the 105-day deadline. That authority is not unlimited, though, in that modifications must be related to the underlying reasoning for the tariffs and those reasons can't be "stale," CAFC said.
Jacob Kopnick
Jacob Kopnick, Associate Editor, is a reporter for Trade Law Daily and its sister publications Export Compliance Daily and International Trade Today. He joined the Warren Communications News team in early 2021 covering a wide range of topics including trade-related court cases and export issues in Europe and Asia. Jacob's background is in trade policy, having spent time with both CSIS and USTR researching international trade and its complexities. Jacob is a graduate of the University of Michigan with a B.A. in Public Policy.
President Donald Trump did not violate procedural timelines when he raised tariffs on Turkish steel from 25 to 50% in August 2018, beyond the 90-day deadline and 15-day implementation period for initial Section 232 tariffs, the U.S. Court of Appeals for the Federal Circuit said in a July 13 opinion. Reversing a Court of International Trade decision, the Federal Circuit threw a wrench in a key argument against certain Section 232 tariffs that action beyond the statutory timelines should not be allowed.
A group of surety associations should not be able to argue against when the six-year limitations period begins for a customs bond due to their role in "abetting the new shipper bond disaster," a group of domestic agricultural goods producers said in a July 8 amicus brief in the Court of International Trade. The brief was filed to oppose the surety associations' motion to intervene in the lawsuit (United States v. American Home Assurance Company, CIT #20-00175).
The Court of International Trade sustained the Commerce Department's second remand results in the fourth administrative review of the antidumping duty order on large power transformers from Korea, in a July 9 opinion. Chief Judge Mark Barnett upheld the results after Commerce dropped its adverse inference against Hyundai Heavy Industries Co. and Hyosung Corporation when calculating their antidumping duty rate. The result left both respondents in the review with a zero percent duty rate.
Commercial airline operator NetJets Aviation's lawsuit in the Court of International Trade over CBP's assessment of customs user fees on certain of its flights should be partially dismissed since NJA, in part, is claiming the wrong jurisdiction, the Department of Justice said. NJA challenged CBP's denial of its customs protest, filing its case under Section 1581(a) and 1581(i) in CIT, the latter being a challenge to agency action. Submitting a partial motion to dismiss on July 7, DOJ said that NJA's 1581(i) claim should be tossed since 1581(a) exists as the proper avenue of jurisdiction (NetJets Aviation, Inc. v. United States, CIT #21-00142).
A furniture importer's argument that the Enforce and Protect Act investigation finding it guilty of antidumping duty evasion was unconstitutional is not valid since the importer does not have a protectable interest, the Department of Justice said in a July 9 brief in the Court of International Trade. Since a protectable interest is necessary to claim a due process violation has been committed, Aspects Furniture International's constitutional arguments against the EAPA process fall flat, DOJ said (Aspects Furnitre International, Inc. v. United States, CIT #20-03824).
The following lawsuits were recently filed at the Court of International Trade:
The Commerce Department was permitted to apply "facts otherwise available" in an antidumping duty investigation where it was unable to verify certain information due to the COVID-19 pandemic, the Department of Justice said in a July 2 brief to the Court of International Trade. Responding to plaintiffs, led by Bonney Forge Corp., DOJ said that the pandemic and travel restrictions prohibited Commerce from conducting on-site verifications during an investigation on forged steel fittings from India (Bonney Forge Corporation et al. v. United States, CIT #20-03837).
Global Aluminum Distributor backed Kingtom Aluminio's renewed bid to join a lawsuit over an Enforce and Protect Act investigation that found it helped importers evade antidumping and countervailing duties on aluminum extrusions from China, while the original EAPA alleger, Ta Chen International, disputed Kingtom's motion for reconsideration in the case, in briefs filed July 7 (Global Aluminum Distributor LLC v. U.S., CIT #21-00198). Kingtom asks the Court of International Trade to reverse its own June 21 decision that Kingtom can't intervene in the case, brought by the importers found to have evaded AD/CV duties.
Among the recent plethora of lawsuits filed in the Court of International Trade challenging the constitutionality of the Enforce and Protect Act process for investigating evasion of antindumping and countervailing duty orders (see 2106070011), at least one invokes the Eighth Amendment, a rarely litigated part of the U.S. Constitution. Filed by trade lawyer David Craven on behalf of Global Aluminum Distributor, the lawsuit challenges EAPA penalties based on the amendment's prohibition on excessive fines.