The Department of Justice wants a stay in a case involving the Commerce Department's use of its non-market economy policy, arguing that issues in a related appeals court case have implications for the case in the Court of International Trade. In a May 25 motion, DOJ argued that since the Federal Circuit case, China Manufacturers Alliance, LLC v. United States, Fed. Cir. #2020-1159, deals with whether the statute authorizes Commerce to apply a China-wide rate to an exporter that failed to show freedom from government control in an antidumping investigation, the outcome of the case will "likely impact the outcome of this remand" (Jilin Forest Industry Jinqiao Flooring Group Co., Ltd., v. United States, CIT #18-00191). In the CIT case, the court remanded an antidumping investigation on multilayered wood flooring, finding that the agency's determination that Chinese exporter Jilin Forest Industry Jinqiao Flooring Group was de facto controlled by the Chinese government lacked substantial evidence (see 2104300079). The decision took issue with Commerce's application of the China-wide rate to Jilin, given that Commerce's NME policy was meant to incentivize greater compliance and Jilin fully complied with all Commerce requests.

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

The Court of International Trade on May 27 upheld remand results from the Commerce Department that reversed a scope ruling that included ready-to-assemble kitchen cabinets in antidumping and countervailing duty orders on hardwood plywood products from China. While the agency continued to hold the request for the scope ruling was specific enough, despite concerns in his initial remand from Judge Gary Katzmann, Commerce on further examination found that the scope requests lacked sufficient supporting evidence and explanation.

Tool retailer Stanley Black & Decker filed a lawsuit in the Court of International Trade, hoping to piggyback on a recent decision striking down the Section 232 tariffs on steel and aluminum "derivatives," according to a May 27 complaint. The decision, PrimeSource Buildnig Products, Inc. v. United States, et al., CIT #20-00032, found that President Donald Trump violated procedural time limits when expanding the Section 232 tariffs onto derivative products (see 2104050049). A three-judge panel at the court made the decision, ultimately finding that only PrimeSource would be granted refunds for payments made toward the 25% steel derivatives tariffs. While the decision stopped imposing the tariffs for imports and unliquidated goods, it found that it would only grant refunds on a per-case basis. The company is seeking a refund with interest for any payments made toward the duties.

The U.S. Court of Appeals for the Federal Circuit should rule that pencil importer Prime Time exhausted its administrative options by asking the Commerce Department five times for "gap-filling" information that was necessary to determine the correct antidumping duty rate, the company said in a May 26 filing with the CAFC. The company "seeks remand here, directing the Trade Court to instruct Commerce to place gap-filling information only Commerce can access on the record to give Prime Time the meaningful opportunity provided by the statute to show the margin for its entries to be less than the highest prior margin," it said in its opening brief.

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

Plaintiffs' arguments on why they should be able to file a reply brief in discussions on a preliminary injunction in the massive Section 301 litigation disregard and misunderstand the law, as well as the Department of Justice's previous arguments, DOJ said in a May 26 response. DOJ deferred to the court's discretion whether they believe the plaintiff's proposed reply "aids the court's understanding of the disagreement between the [p]arties."

A Michigan-based vaporizer, rolling paper and pipe importer, ASHH, is challenging CBP’s seizure of its goods, saying that the agency wrongly characterized its imports as “drug paraphernalia.” Even if the goods were labeled as such, they would still be exempt from seizure since the plain text of two Michigan laws legalizing marijuana exempts the goods from seizure, the importer said. ASHH is also seeking a permanent injunction against CBP from further violations of Michigan’s marijuana legalization laws or federal regulations defining drug paraphernalia, according to a May 24 complaint in the U.S. District Court for the Eastern District of Washington.

Importers filed a daily average of 1.25 new Section 301 cases in the 20 business days since Chief Judge Mark Barnett of the U.S. Court of International Trade signed his April 28 administrative order automatically staying any new complaints without assigning them to the three-judge panel he shares with Judges Claire Kelly and Jennifer Choe-Groves (see 2104290048). Court records show that’s slightly fewer than the 1.45 daily average of cases filed in the 20 days before Barnett’s order, all of which were also stayed but assigned to the panel. There’s no evidence suggesting Barnett’s order is reducing the influx of new Section 301 challenges, nor was that his intent. His rationale, he told an April 26 status conference, was his worry that a future case would create a "conflict" forcing the recusal of one or more of the judges (see 2104280035).

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