Trade Law

International trade litigation requires patience. These disputes often span several years and involve multiple redeterminations by the agency whose action is subject to judicial review. The appeal can get even further complicated when the original proceeding becomes entangled with one or more subsequent administrative proceedings. And even if a party prevails on appeal, a victory may become hollow unless the appropriate agencies implement the redetermination in a timely fashion.

A new year brings new decisions. In the first opinion issued in 2019 by the U.S. Court of International Trade (CIT), Judge Choe-Groves addresses the application of a hot-button issue—the U.S. Department of Commerce’s recently expanded “particular market situation” authority—through a combination of procedure and record review.

Yesterday morning, the Office of the United States Trade Representative (USTR) formally notified Congress that the administration intends to initiate renegotiations with Mexico and Canada on the North American Free Trade Agreement (NAFTA). The administration is required to submit the notice to ensure that any legislation required to implement an updated agreement can receive fast-track protection under the Bipartisan Congressional Trade Priorities and Accountability Act of 2015 (TPA). Under the TPA, the USTR may not enter into formal negotiations until 90 days after this notice is provided to Congress. Thus, NAFTA renegotiations can start on August 16, 2017.

Invoking statutory authority not used in almost two decades, President Trump on April 20, 2017, directed the U.S. Department of Commerce (DOC) to conduct an investigation into the effects of steel imports on U.S. national security. Citing the more than 150 antidumping and countervailing orders currently in place on steel products imported from various countries, the Presidential Memorandum announcing the investigation claims that U.S. steel producers continue to be harmed by continued unfair trade practices, such as subsidies provided by foreign governments and excess production capacity in producing countries. These systemic trade abuses, according to the Presidential Memorandum, jeopardize long-term investment in the U.S. industry and weaken the pool of qualified workers for this strategic industry.

President Trump signed two EOs addressing trade on Friday, March 31: one addressing trade and customs enforcement, including the collection of antidumping and countervailing duties (AD/CVD), and a second requesting an omnibus report on significant trade deficits. While the EOs represent another of the administration’s major forays into trade, they set the table for increased enforcement of U.S. trade laws and scrutiny of U.S. trading partners.

CBP has released the highly anticipated AD/CV duty evasion regulations, which promulgate an administrative procedure for investigating AD/CV duty evasion allegations that CBP must follow. The regulations will undoubtedly require an increased number of importers and foreign manufacturers to formally respond to CBP’s questions and participate in a time-consuming process in the face of allegations brought against them. CBP has issued these regulations in accordance with Section 421 of the Trade Facilitation and Trade Enforcement Act (the Act), which the president signed into law in February of this year. The Act required that CBP establish a formal and transparent process for investigating AD/CV duty evasion allegations and that CBP prescribe regulations to implement this statutory mandate within 180 days of the Act’s enactment. Considering that the 180th day after enactment is today, August 22, CBP is foregoing the typical notice-and-comment period and making the regulations effective upon their publication in the Federal Register on August 22. Still, CBP is issuing the regulations in “interim” form and accepting comments on them until October 21, 2016.

Background

On April 18, 2016, the United Steel Workers filed a petition with the U.S. International Trade Commission (ITC), requesting the initiation of an investigation under Section 201 of the Trade Act of 1974 on imports of primary unwrought aluminum. A Section 201 investigation, also known as a “safeguard” investigation, examines the impact on the domestic industry of all imports of a particular product without regard to their country of origin, with a limited exception for NAFTA countries. The purpose of the rare Section 201 remedy is to provide temporary import relief that will allow a U.S. industry facing serious import injury to adjust to unforeseen and increasing import competition. This Section 201 investigation is the first since 2001, when the ITC investigated imports of certain steel products, resulting in a safeguard of up to a 30 percent tariff rate on certain steel imports. In their petition, the United Steel Workers are seeking the imposition of a provisional 50 percent tariff during the pendency of the investigation and a graduated declining tariff rate for the four years following the investigation. This petition comes only 10 days after the ITC, at the request of the House Committee on Ways and Means, initiated a separate investigation of the global competitive conditions affecting the U.S. aluminum industry pursuant to Section 332(g) of the Tariff Act of 1930.

Background

On April 6, 2016, the ITC announced the initiation of an investigation to examine global competitive conditions affecting the U.S. aluminum industry. The ITC’s investigation was requested by the House Committee on Ways and Means (the “Committee”) amidst growing pressure from the U.S. aluminum industry for the U.S. government to address increasing foreign production capacity, particularly in China, and the trade practices of foreign aluminum producers. In its request, the Committee identified the U.S. aluminum industry as important to the American economy and “vital” for national defense. Since January 2015, nine U.S.-based aluminum smelters, representing 65 percent of U.S. production capacity, have been curtailed or closed.