Jacob Kopnick

The Court of International Trade's recent decision denying first sale valuation for cookware importer Meyer Corp. likely won't lead to the end of first sale treatment for goods originating from non-market economies, said customs lawyers in interviews. Despite broader questions raised by CIT Senior Judge Thomas Aquilino, it's unlikely that courts will do away with first sale for non-market countries entirely, but the decision does highlight the burden of demonstrating eligibility for first sale, lawyers said.

The Justice Department has moved to dismiss a case at the Court of International Trade that challenges the legality of President Donald Trump's move to withdraw a tariff exclusion for bifacial solar panels. The move indicates that the new Biden administration will, at least for the time being, not back down from its defense of the tariff exemption withdrawal, instead declaring that the president's actions were lawful.

First sale treatment may not be applicable to transactions involving non-market economies, including China, Court of International Trade Senior Judge Thomas Aquilino said in a March 1 decision. In a ruling on cookware imported by Meyer from Thailand and China through a Chinese middleman, the trade court found the involvement of Chinese companies made it difficult to determine whether the transaction was at arm's length and undistorted by non-market influences, as required for first sale valuation. Though he stopped short of saying imports originating in non-market economies could never receive first sale valuation, he called on the U.S. Court of Appeals for the Federal Circuit to clarify.

Keirton USA Inc., a manufacturer based in Washington state, filed a complaint with the U.S. District Court for the Western District of Washington, calling for CBP to stop seizing, denying entry to or detaining any of the company's products. The company makes machinery used to harvest hemp, kale, hops and other farm goods and has had continued troubles with CBP dating back to 2012, with the real issues beginning in May 2020. Keirton's flagship product is the Twister Trimmer -- a cannabis and hemp trimmer that the company assures is only used in a legal capacity.

The following lawsuits were filed at the Court of International Trade during the week of Feb. 15-21:

The Court of International Trade ordered the Commerce Department to reconsider its determination that certain hardwood plywood with outer veneers of radiata or agathis pine is circumventing antidumping and countervailing duties on hardwood plywood from China. CIT Judge Jane Restani found that Commerce had insufficient evidence to prove that the type of plywood in question was developed after the duties were imposed, in a Feb. 18 decision.

The U.S. Court of Appeals for the Federal Circuit ordered the delay of a ban on imports of a rival product to Allergan's Botox. The day before the 21-month limited exclusion order was to take effect on South Korean company Daewoong Pharmaceutical's anti-wrinkle treatment Jeuveau, the court temporarily halted the International Trade Commission's ban while the case is being heard. Any oppositions to the motion -- a position held by Allergan and its Korean partner Medytox -- are due by March 2, and any support of the delay must be submitted by March 5. The exclusion order stems from an ITC investigation into allegations that imports of botulinum toxin products violate Section 337 by way of theft of Medytox's and Allergan's trade secrets (see 1903080013). Daewoong and its U.S. subsidiary Evolus oppose the ban, claiming that the ITC has weaponized these investigations against rival manufacturers even when no violation of U.S. law has been committed. “Evolus is pleased with this decision as it allows us to continue to sell Jeuveau® to our customers without interruption,” a spokesperson for Evolus said.

Importers of steel and aluminum could be facing higher antidumping duty rates, after the Court of International Trade ruled Feb. 17 that Section 232 tariffs are a form of normal import duties that should be deducted from foreign exporters' U.S. prices in AD duty rate calculations. The trade court held that, unlike Section 201 safeguard duties and AD/CV duties, which are not deducted, the national security-based Section 232 tariffs have a different purpose unrelated to remediating injury from an import surge or underpriced imports.

The following lawsuits were filed at the Court of International Trade during the week of Feb.8-14:

Importer E.G. Plastics failed to pay antidumping duties on 25 entries of polyethylene retail carrier bags and now must pay $1.1 million plus pre-judgment interest. Court of International Trade Judge Gary Katzmann issued a default judgment against E.G. Plastics after the company failed to defend itself in court against allegations that it failed to pay the duties on bags imported between 2008 and 2009. “Because E.G. Plastics failed to protest the liquidations of the entries at issue and E.G. Plastics failed to appear, plead, or otherwise defend itself in this action, the court grants the Government’s motion for default judgment,” the decision said.