CIT OKs Inclusion of Cabinets, Vanities Processed in 3rd Countries in Scope of Chinese AD/CVD Orders

The Court of International Trade, in a pair of decisions issued on April 21, sustained a Commerce Department scope ruling that included Chinese-origin wooden cabinets and vanities further processed in Malaysia and Vietnam within the scope of the antidumping and countervailing duty orders on Chinese wooden cabinets and vanities. Judge Leo Gordon held that Commerce didn't unlawfully initiate the scope inquiry, concluding that the agency didn't fail to "identify a particular product" when opening the inquiry, as argued by the plaintiffs, led by importer ACProducts. The judge also concluded that Commerce's substantial transformation analysis was backed by substantial evidence, declining the plaintiffs' invitation to have the court reweigh the substantial transformation factors and concluding that the agency's determinations were properly supported by the record.

CIT Sustains Commerce’s Interpretation of Scope of AD/CVD Orders on Chinese Wood Mouldings

Court of International Trade Judge Joseph Laroski sustained the Commerce Department’s remand redetermination results on an agency scope ruling on the antidumping duty and countervailing duty orders on wood mouldings and millwork products from China. In an April 21 opinion, Laroski ruled that the agency’s interpretation of the threshold phrase “wood mouldings and millwork products” didn’t unlawfully expand the scope of the orders and lawfully included Hardware Resources’ products within the scope. Laroski also ruled that the agency lawfully determined that the scope didn’t include an end-use requirement and that “a product with a UV coating,” such as Hardware Resources’ products, “remains in scope.”

CIT Says Importer's Planners Properly Classified as 'Other' Diaries, Notebooks

The Court of International Trade on April 21 held that importer Blue Sky the Color of Imagination's "weekly/monthly planners" are properly classified as "other" registers, account books, notebooks, diaries and the like under Harmonized Tariff Schedule subheading 4820.10.40, rather than as calendars of heading 4910. Following a remand from the U.S. Court of Appeals for the Federal Circuit, Judge Jane Restani said Blue Sky's planners can't be classified under heading 4910, since the "articles, as a whole, exceed the definition of a calendar." The judge said the planners aren't "merely charts for showing the division of a given year, but rather bound notebooks that include such charts, other features, and copious space to record various types of information." The planners have the "same essential characteristics or purposes that unite" registers, account books, notebooks and diaries.

CIT Partially Sustains Commerce’s Remand Redetermination in Korean Emissions Permits CVD Case

Court of International Trade Judge Jane A. Restani sustained in part and remanded in part Commerce’s final remand redetermination of its 2021 administrative review of the countervailing duty order on carbon and alloy steel cut-to-length plate from South Korea. Restani sustained the agency’s determination that there was insufficient evidence to find that the Korean government’s “provision of electricity for [less than adequate remuneration (LTAR)] is specific and countervailable,” and she said the agency didn’t “abuse its discretion in not reopening the record.”

Restani also sustained the agency’s “determination that Korea’s allocation of additional ten percent [emissions permits] to a select group of industries is a direct transfer of funds under Section 1677(5)(D)(i).” However, Restani remanded Commerce’s finding that “the additional ten percent allocation by Korea is specific under Sections 1677(5A)(A) and (B) because it meets the criteria for an ‘export subsidy,’” and instructed the agency to do an analysis to “evaluate whether the subsidy is de facto specific under Section 1677(5A)(D).” The agency must issue a determination no later than 75 days from April 17.

CIT Allows Importer to Depose BIS in Section 232 Exclusion Case

The Court of International Trade on April 15 allowed importer G&H Diversified Manufacturing to depose both the Bureau of Industry and Security and CBP in its case seeking an exclusion from Section 232 tariffs. Judge Timothy Reif rejected the government's attempt to exclude BIS from G&H's deposition notices, finding BIS and CBP are governmental agencies under CIT Rule 30(b)(6), which governs deposition. However, the judge limited the scope of the deposition topics. For instance, Reif found G&H's request to depose BIS about its "authority and role under section 232, including the relationship between" BIS, the Commerce Department, CBP and the president in administering steel tariffs and exclusions, to be overbroad. The judge limited the topic to the "specific relationship" between CBP and BIS in administering Section 232 steel tariffs and exclusions.

CBP Launching the First Phase of IEEPA Refund Tool in ACE on April 20

CBP will on April 20 launch the first phase of the Consolidated Administration and Processing of Entries, CAPE, tool for International Emergency Economic Powers Act duty refunds, according to a CSMS message. CAPE phase one is limited to certain unliquidated entries and entries that have liquidated in the past 80 days.

"CAPE is designed to consolidate refunds of IEEPA duties including interest rather than processing refunds on an entry-by-entry basis. CBP plans to implement CAPE through a phased development approach, adding more functionality in subsequent phases for more complicated scenarios."

Importers of record and authorized brokers must have an established ACE portal account. Refund recipients will have to use ACE to provide CBP with bank account information and importers and brokers will have to submit CAPE declarations on the ACE portal.

The CAPE process will start with the filing the CAPE Declaration in the ACE portal by the importer or authorized broker. CBP will remove the IEEPA HTS number and recalculate duties, updating the entry to a new version, which CBP will review and reliquidate or liquidate. Refunds will be consolidated by the importer, or designated party, and the liquidation date.

CIT Sustains Commerce’s Use of Adverse Inference in Nippon Steel Case

Court of International Trade Judge Jennifer Choe-Groves sustained, in an April 8 opinion, the Commerce Department’s second remand redetermination in its 2018-19 review of the antidumping duty order on hot-rolled steel flat products from Japan. Plaintiff Nippon Steel argued it cooperated “to the best of its ability” to induce its affiliates to provide downstream sales data and was prohibited by Japanese law from refusing to trade with the affiliate or using its “superior bargaining position” to induce cooperation. However, Choe-Groves ruled that Commerce adequately supported its determination that Japanese law doesn’t prohibit these actions and that the company failed to act to the best of its ability. Additionally, Choe-Groves ruled in favor of Commerce’s determination that it was reasonable to “expect that Nippon do more to induce compliance with a known-noncooperative affiliate to meet the ‘best of its ability’ standard” due to the company’s participation in past administrative reviews. CIT sustained the agency’s use of adverse inference.

CIT Stays Case on Duties Collected on Imported Solar Cells Pending Auxin Appeal

The Court of International Trade on April 8 granted the government's motion to stay a case from importer Veregy Central contesting protests denied by CBP regarding the collection of duties on imported solar cells from Thailand and Vietnam pending resolution of Auxin Solar v. U.S. at the U.S. Court of Appeals for the Federal Circuit. Auxin concerns the validity of a pause on duties set in anti-circumvention inquiries on solar cells and modules from Thailand, Vietnam, Cambodia and Malaysia. Judge Timothy Reif found that Veregy's claims either directly or implicitly rely on the validity of the duty pause at issue in Auxin.

Atmus Filtration Dismisses Lead IEEPA Refund Suit

Importer Atmus Filtration dismissed its case seeking refunds of tariffs imposed under the International Emergency Economic Powers Act. Until now, Atmus' case was treated as the lead lawsuit on the provision of IEEPA refunds by Judge Richard Eaton, who the court has tasked with overseeing all refund matters. In the case, Eaton issued an order compelling CBP to liquidate unliquidated entries without the tariffs, as well as reliquidate both finally and not finally liquidated entries without the tariffs, though that order was suspended while CBP developed an administrative system for refunds. In the case, Eaton also rejected efforts by Atmus to establish a plaintiffs' steering committee.

CIT Dismisses Challenge of Comparability Finding on NZ Fisheries

Court of International Trade Judge Jennifer Choe-Groves dismissed Maui and Hector’s Dolphin Defenders NZ’s case challenging the National Marine Fisheries Service’s 2024 comparability finding on set net and trawl fisheries off New Zealand's North Island without prejudice, according to her April 6 opinion. The conservation group moved to voluntarily dismiss its case while it instead challenged NMFS’s 2025 comparability finding after the 2025 finding supplanted the 2024 finding. While the group argued the case should be dismissed without prejudice, the U.S. argued the group lacked standing because it allegedly couldn’t establish causation and redressability. Choe-Groves agreed with the conservation group that the case became moot when the NMFS’s 2025 finding took effect on Jan. 1, and she said “dismissals based on jurisdictional issues, such as standing or mootness, are often without prejudice, and the Court will not depart from that well-established principle.”

CIT Remands Parts of Commerce’s Chinese Solar Cell AD Review

The Court of International Trade on March 30 sustained in part and remanded in part Commerce’s redetermination of its 2019-2020 review of the antidumping order on solar cells from China. Judge Claire Kelly remanded Commerce’s use of Romanian data as a surrogate value for solar glass, holding that “[b]ecause the record contains evidence that the Romanian HTS classification excludes anti-reflective solar glass, Commerce cannot reasonably rely on the Romanian HTS." Kelly also remanded the agency's determination that Malaysian data is unreliable and requested further explanation for “why [control number]-specific rates are too complex to be reasonable.” Additionally, Kelly remanded Commerce’s decision to assign separate rates to exporters BYD and JA Solar. Kelly sustained Commerce’s application of adverse facts available for exporter Risen Energy.

CIT Broadens IEEPA Tariff Refund Order to Include Finally Liquidated Entries

Court of International Trade Judge Richard Eaton on March 27 broadened his IEEPA tariff refund order to include finally liquidated entries. On March 27, the judge said "[a]ny liquidated entries for which liquidation is final shall be reliquidated without regard to the IEEPA duties." However, the judge continued his suspension of the order "to the extent that it requires immediate compliance."

Eaton's original refund order only covered non-finally liquidated entries, and in another previous order, the judge indicated that importers with finally liquidated entries should be aware of their protest rights. A group of importers, led by AGS Company Automotive Solutions, subsequently asked the judge to lift the stay of their case to address whether protests are needed to get refunds for finally liquidated entries.

CIT Amends IEEPA Tariff Refund Order to Include Brazil, India Tariffs, Continues Pause of Order

The Court of International Trade on March 20 amended its order requiring CBP to begin paying refunds for tariffs imposed under the International Emergency Economic Powers Act to include refunds of IEEPA tariffs imposed on Brazil and India that came on top of reciprocal tariffs for those two countries. Previously, the order only covered the tariffs at issue in the lead tariffs case before the Supreme Court, namely reciprocal tariffs and IEEPA tariffs on Canada, Mexico and China. However, Judge Richard Eaton continued his pause of the order "to the extent that it requires immediate compliance," also ordering CBP to file a report on March 31 discussing the progress it has made towards standing up an administrative refund process.

CIT Sustains Circumvention Finding on Vietnamese Solar Cells

The Court of International Trade on March 17 sustained the Commerce Department's finding that solar cell imports from Vietnam circumvent the antidumping and countervailing duty orders on the same goods made in China. Judge M. Miller Baker said that exporter Trina Solar failed to exhaust the sole argument raised before the court on remand, namely the company's claim that the "nature of the production process of solar cells in Vietnam compelled a negative circumvention conclusion." Trina had argued that Baker's previous remand order didn't concern the "nature of the production process," which is a factor Commerce is required to consider, thus making it futile to raise the issue on remand. But the judge said this wasn't the case, since the previous remand order told Commerce to "address all the statutory factors, balance them, and consider the parties' arguments."

CIT Judge Finds CBP Progress on IEEPA Refunds Satisfactory; Some Aspects 70 to 80% Done

Court of International Trade Judge Richard Eaton described CBP's work to set up an automated reciprocal tariff refund process as satisfactory, and continued to suspend his order to liquidate entries without International Emergency Economic Powers Act tariffs.

Brandon Lord, executive director of trade programs at CBP, filed an update on the progress on March 12 at the trade court, where he said there will be a claim portal as the importers' and customs brokers' interface with the Consolidated Administration and Processing of Entries, or CAPE. The development of the claim portal is 70% done, Lord said.

Once filers submit information about the entries that included IEEPA tariffs, CBP will use a mass processing program to remove IEEPA HTS numbers, and run the duty calculations for the other tariffs owed. The development for that segment of the process is 40% complete, Lord said.

The next component of CAPE will review and liquidate or reliquidate entries. It will set the entries to liquidate or reliquidate after a number of days that Lord did not specify, enough to give CBP the chance to do a manual review if needed. This part of the program will calculate interest. These liquidations will happen Monday through Thursday, rather than the typical once a week Friday liquidations. That segment of CAPE is 80% complete, Lord said.

The refund segment will consolidate refunds by importer of record and liquidation date, though IORs can also designate a party to receive refunds on its behalf. That part of the system is 60% complete, Lord said.

"CBP has completed developing CAPE-specific refund processing functionality within the ACE Collections framework. Currently, CBP is performance testing the CAPE refund consolidation process," the filing said.

CIT Remands Scope Ruling on Enriched Ammonium Sulfate

The Court of International Trade on March 11 remanded the Commerce Department's scope ruling including importer Cambridge Isotope Laboratories' enriched isotope compounds within the scope of the antidumping and countervailing duty orders on ammonium sulfate from China. Judge M. Miller Baker said that despite claiming to have only looked at the orders' plain scope language, Commerce actually considered one of the (k)(2) factors in its analysis. The judge said the agency therefore erred in failing to consider the other four (k)(2) factors.

CIT Suspends Order Directing CBP to Issue IEEPA Tariff Refunds

The Court of International Trade on March 6 suspended its order directing CBP to immediately begin paying refunds of tariffs imposed under the International Emergency Economic Powers Act. Judge Richard Eaton paused his prior order "to the extent that it directs immediate compliance." The judge issued the suspension after a conference held on March 6 and considering the "declaration" of CBP official Brandon Lord, which discussed the practical difficulties in complying with the order while also noting that CBP is considering a system to automatically issue refunds that could be ready in 45 days.

CBP Considering Process to Automate IEEPA Tariff Refunds

CBP is considering a system to automatically issue refunds of International Emergency Economic Powers Act tariffs that it hopes could be ready for use in 45 days, said Brandon Lord, CBP executive director-trade programs, in a March 6 filing at the Court of International Trade.

The process would include the importer filing a declaration in ACE that lists entries on which IEEPA duties were paid, followed by a series of ACE validations and other automated processes. The end result would be electronic refunds of the aggregate total of IEEPA tariffs paid by each importer, rather than paying the refunds on each entry summary.

Lord said the new process is necessary because of the amount of manual work that would currently be required to issue IEEPA tariff refunds. Under current processes, CBP import and entry specialists would have to sift through the many entries where importers included all duties paid, including IEEPA tariffs, into the Chapter 1-97 tariff classification, despite the agency’s instructions to the contrary.

Manual work also is currently required to calculate interest payments where duty deposits were made on different dates for the same entry summary, such as when an importer submits a correction, and CBP must also manually certify refunds for accuracy. Many importers also haven’t taken the necessary steps to set up electronic refunds in ACE, as has been required since Feb. 6.

The filing comes in a case wherein CIT directed CBP to refund IEEPA tariffs on all entries not finally liquidated. A hearing in the case was set for today. It’s unclear whether the court will adopt the refund process Lord described in the filing, and if it does, the ruling would be subject to appeal.

Suit Against Section 122 Tariffs filed by 24 States at CIT

Twenty-four states filed suit against the Trump administration's recently imposed Section 122 tariffs, asking the Court of International Trade to permanently enjoin the government from implementing the Section 122 proclamation and order the government to refund any Section 122 tariffs collected from the states and their "instrumentalities."

The complaint, filed March 5, argues that the balance of payments crisis that forms the basis for the tariffs doesn't exist, and is instead a pretext for President Donald Trump to "impose, modify, and reinstate tariffs by executive order, memoranda, social media post, and other means" based on his whims. It also argued that the 80 pages of products that are not subject to the 122 tariffs, as well as certain products from various countries, are not justified by the statute's language about exceptions.

CIT Upholds AD Review on Chinese Tires for Passenger Vehicles, Light Trucks

The Court of International Trade on March 4 sustained the Commerce Department's third remand results in the 2016-17 review of the antidumping duty order on passenger vehicle and light truck tires from China. In the remand results, Commerce deselected exporter Shandong Linglong Tyre as a mandatory respondent but granted it separate rate status, assigning it a 41.36% AD rate. Judge Mark Barnett acknowledged that the decision to grant Linglong separate rate status but deny the same to other exporters "might reasonably be questioned on several fronts." But he said Commerce's conclusion was ultimately reasonable, since Linglong and the other exporters "are not similarly situated," given that Longling was omitted from the respondent selection process "through no fault of its own."

CIT Orders CBP to Refund All IEEPA Tariffs on Non-Final Entries

The Court of International Trade on March 4 ordered CBP to liquidate all unliquidated entries that were subject to tariffs imposed under the International Emergency Economic Powers Act, and reliquidation of such entries for which liquidation isn't final, "without regard to the IEEPA duties." Judge Richard Eaton said in light of the Supreme Court's decision finding that IEEPA doesn't contain any tariff authority and the trade court's unique ability to issue nationwide relief, such relief is warranted. Eaton also said CIT Chief Judge Mark Barnett indicated Eaton will be the only judge presiding over cases involving IEEPA duty refunds.

CIT Grants Reconsideration of Prior Decision Sustaining Evasion Finding

The Court of International Trade on Feb. 27 granted importer InterGlobal Forest's motion for reconsideration of the court's previous decision sustaining CBP's conclusion that InterGlobal evaded antidumping and countervailing duties on Chinese plywood. After rejecting a host of arguments from InterGlobal contesting the court's previous decision, Judge M. Miller Baker said InterGlobal "finally lands a punch" in arguing CBP's decision is "arbitrary and capricious" in light of the agency's negative evasion finding for another importer, Richmond International, that used the same manufacturer as InterGlobal. The judge also said CBP must also add data to the record concerning Richmond's evasion proceeding that CBP left off the record in InterGlobal's review.

CAFC Sends IEEPA Cases Back to CIT to Address Refunds Over Objection From US

The U.S. Court of Appeals for the Federal Circuit on March 2 granted a motion for immediate issuance of the mandates in the lead cases on the legality of tariffs imposed under the International Emergency Economic Powers Act, concurrently sending the case back to the Court of International Trade to sort out how to issue refunds. The court granted the motion over the objections of the government, which said the court should wait the ordinary amount of time before issuing its mandate or stay the issuance of the mandate to give Congress time to come up with a solution on tariff refunds.

US Urges CAFC to Slow Down Implementation of IEEPA Tariff Decision

The U.S. on Feb. 27 opposed a motion before the U.S. Court of Appeals for the Federal Circuit for the immediate issuance of a mandate in the lead case on the legality of tariffs imposed under the International Emergency Economic Powers Act. While counsel for the five importers that filed suit said an immediate mandate is needed to begin the process of issuing refunds at the Court of International Trade, the U.S. said these companies' "apparent desire to be the center of attention in remedial proceedings in the CIT" doesn't support departing from the "ordinary course," in which the CAFC waits until the Supreme Court sends down its judgment either 32 days after judgment or after the denial of rehearing. The government said the importers haven't shown they will suffer irreparable harm without proceeding at "breakneck speed," adding that, if anything, the appellate court should wait 90 days to give Congress a chance to come up with a solution.

CIT Says Mastectomy Bras Are Bras, Not Accessories to Artificial Breast Forms

The Court of International Trade on Feb. 27 held that importer Amoena USA's mastectomy bras are properly classified under Harmonized Tariff Schedule heading 6212 as brassieres rather than under subheading 9021 as an accessory to an artificial part of the body. Defining "brassiere" as an "undergarment worn to support breasts," Judge Leo Gordon found that the term "brassiere" in heading 6212 isn't confined to "only natural breasts," as claimed by Amoena. In addition, the judge said the importer's mastectomy bras aren't accessories to an "artificial breast form," since they are a "distinct and separate commercial entity" from artificial breast forms.

CIT Upholds Partial AFA in Anti-Circ Proceeding, Remands Certification Eligibility Decision

The Court of International Trade on Feb. 24 upheld the Commerce Department's use of partial adverse facts available against exporter Tanghenam Electric Wire & Cable Co. in a proceeding on whether the company circumvented the antidumping and countervailing duty orders on aluminum wire and cable from China. Judge Joseph Laroski said the agency reasonably determined that Tanghenam didn't act to the "best of its ability," since it reported the countries where its input suppliers were located rather than the countries the inputs themselves originated in, despite having access to the correct information. However, Laroski remanded Commerce's conclusion that Tanghenam was ineligible to take part in the agency's certification process on the basis that Commerce failed to address the company's claims regarding its "reconstruction-based accounting method for tracing inputs from purchase to sale of the finished goods."

CIT Says President's End of Section 232 Exclusion Process Valid Reason to Deny Pending Requests

The Court of International Trade on Feb. 23 upheld the Bureau of Industry and Security's denial of importer Prysmian Cables and Systems USA's requests for exclusions from Section 232 steel and aluminum tariffs. Judge Mark Barnett held that two exclusions either denied in full or in part by BIS prior to the elimination of the exclusion process weren't required to be granted but instead were reviewed for being arbitrary or capricious. The judge concluded that the denials weren't arbitrary or capricious given the government's national security interests in denying exclusions for Russian products. In addition, Barnett said BIS didn't act unlawfully when denying two exclusions that were pending when the President ordered the end of the exclusion process, since the exclusion process completely derives from the president's power under Section 232, and the president has the power to rescind that process fully.

CAFC Affirms CIT's Rejection of Importer's Claim for Deemed Duty Drawback

The U.S. Court of Appeals for the Federal Circuit on Feb. 24 affirmed the Court of International Trade's decision to reject importer Performance Additives' drawback claim, which was premised on the notion that the claim was deemed liquidated. Judges Sharon Prost, Evan Wallach and Leonard Stark said 19 U.S.C. 1504(a)(2)(A), which says drawback claims shall be deemed liquidated after one year of being filed except as found in Section 1504(a)(2)(B), doesn't apply when the conditions set forth in subsection (B) are present." The conditions of subsection (B) include that the underlying import entries be "final," which the court said occurs after the liquidation protest window closes. Since Performance Additives' underlying import entries were liquidated but not final, (B) applied and the importer "could have taken" steps "to liquidate the drawback claims but did not."

Trade Court Upholds Most of Commerce's Findings in Turkish Aluminum Foil Case

The Court of International Trade made public Feb. 23 its decision upholding Commerce’s determination in the antidumping duty investigation of aluminum foil from Turkey. Judge M. Miller Baker found the department had now adequately explained its raw material cost calculation, and he sustained Commerce’s adjustment to exporter Assan Aluminyum Sanayi’s use of a Turkish duty drawback. He remanded again for Commerce to further explain its decision regarding Assan's hedging revenue. The department's determination resulted in a .02% increase in the AD calculated for both Assan and companies subject to the Turkish all-others rate.

CIT Sustains Commerce's Finding That Boiled Garlic Is Excluded From AD on Chinese-Origin Garlic

The Court of International Trade affirmed the Commerce Department's ruling, made on remand and under protest, that Chinese-origin garlic that had been boiled for 90 seconds was "heat-processed" and thus excluded from the scope of an antidumping duty order on garlic. The order specifically carved out an exclusion for heat-processed products, CIT Judge Jane Restani said, and Commerce couldn't demonstrate that the boiling process was anything other than heat processing.

10% Section 122 Tariff Takes Effect Feb. 24; IEEPA Tariffs to End, De Minimis Ban Stays

President Donald Trump on Feb. 20 issued a series of executive orders and proclamations setting a 10% across-the-board Section 122 tariff that takes effect Feb. 24 at 12:01 a.m., while directing an end to International Emergency Economic Powers Act tariffs “as soon as practicable” and keeping the current suspension of de minimis in place.

Goods that qualify for USMCA will be exempt from the Section 122 tariff, as will all goods subject to current or forthcoming Section 232 tariffs, the White House said in a fact sheet. The proclamation had not been released by the White House as of our press time.

Other exemptions from the reciprocal tariffs struck down by the Supreme Court will also be carried over to the 10% Section 122 tariff. That includes certain agricultural products, pharmaceuticals, electronics, passenger vehicles and medium and heavy trucks, aerospace products and informational materials, the fact sheet said.

Textiles and apparel that enter duty free from Central America Free Trade Agreement countries will also be exempt.

The executive order ending IEEPA tariffs directs federal agencies to “take all appropriate steps” to end the tariffs and end the collection of duties. It doesn't include an effective date for the end of tariff collection. Agencies may “consistent with applicable law,” including Section 301, “redelegate the authority to take such appropriate steps within the agency.”

Trump to Impose 10% Global Tariff Through Section 122 as IEEPA Replacement

President Donald Trump announced that he will be imposing a 10% global tariff through Section 122 as a replacement for tariffs imposed through the International Emergency Economic Powers Act, following the Supreme Court decision today striking down the IEEPA tariffs.

During a White House press briefing in the aftermath of his loss at the Supreme Court, Trump said that he will sign an executive order today "to impose a 10% global tariff under Section 122, over and above our normal tariffs already being charged."

He also said that his administration will be initiating "several Section 301 and other investigations to protect our country from unfair trading practices of other countries and companies."

He said he will not consult Congress to approve new tariff authorities.

SCOTUS Rules IEEPA Cannot Be Used to Impose Tariffs

The Supreme Court on Feb. 20 held that President Donald Trump can't use the International Emergency Economic Powers Act to impose tariffs. The court ruled 6-3 that the statute, which lets the president "regulate ... importation" to address an unusual or extraordinary threat, does not confer any tariff-setting authority. Chief Justice Roberts, writing for the majority on the issue of interpreting the statute, said that if Congress meant to give the president tariff authority under IEEPA, "it would have done so expressly, as it consistently has in other tariff statutes." The high court affirmed the decision of the U.S. Court of Appeals for the Federal Circuit, which sent the case back to the Court of International Trade to address whether the lower court can issue a "nationwide injunction" against tariffs imposed under IEEPA.

CIT Remands CVD Review, Injury Finding, Sustains CVD Investigation in 3 Opinions

Court of International Trade Judge Jennifer Choe-Groves issued a trio of opinions on Feb. 18, remanding the 2021 review of the countervailing duty order on chlorinated isocyanurates from China and the affirmative injury finding on aluminum lithographic printing plate from Japan and China, while sustaining the CVD investigation of Chinese pea protein.

In the case on the CVD review, Choe-Groves sent back the Commerce Department's use of facts otherwise available, which the agency relied on due to the "absence of land-use rights purchase contracts" for respondents Heze Huayi and Kangtai. The judge said the agency relied on "faulty records with incomplete translations and a lack of correlation with the missing information." Choe-Groves also remanded the ITC's decision not to exclude Fujifilm Greenwood from the domestic industry in the injury proceeding in light of evidence indicating the company is exactly the type of party related to a foreign exporter that "should be excluded from the domestic industry."

The judge also upheld Commerce's decision to use adverse facts available against respondent Zhaoyuan Junbang Trading in the CVD investigation regarding the company's supposed use of China's Export Buyer's Credit Program, since the respondent failed to submit non-use certifications from all of its U.S. customers.

CIT Reclassifies Importers' Counterclaims as Defenses in $15M Penalty Suit

The Court of International on Feb. 18 redesignated counterclaims from a group of five importers led by Lexjet in a $15 million penalty suit on the companies' alleged failure to pay antidumping duties on artist canvases from China as defenses. The importers asserted four counterclaims, arguing the AD order is void for vagueness, the Commerce Department wrongly expanded the scope of the order, CBP failed to consider "essential physical characteristics of the entries" and the importers are entitled to "equitable recoupment of overpayments." Judge Claire Kelly said that while the importers failed to state a cause of action for the first three arguments, they are properly construed as defenses, since the court is required to treat pleadings as though they were properly designated "where justice so requires." The judge added that the equitable recoupment claims are also a defense.

Commerce Can Consider (k)(1) Sources Regardless of Ambiguity in Scope Language, CAFC Says

The Commerce Department has the discretion to consider (k)(1) sources in interpreting the scope of antidumping and countervailing duty orders, "regardless of whether the language appears to be ambiguous or not," the U.S. Court of Appeals for the Federal Circuit held on Feb. 17. Judges Sharon Prost, Richard Linn and Jimmie Reyna said Commerce's scope regulations, which were amended in 2021, are clear that the agency can consider the (k)(1) sources "at the discretion of the Secretary." Rejecting petitioner Magnum Magnetics' challenge to Commerce's finding that importer Siffron's shelf dividers don't fall within the scope of the AD/CVD orders on raw flexible magnets from China, the court also held that Commerce's finding was supported by substantial evidence.

CIT Grants Injunction Pending Appeal in Case on AD Review of Canadian Pipe

The Court of International Trade on Feb. 11 granted exporter Pipe & Piling Supplies' motion for an injunction pending appeal of the company's case against the 2022-23 administrative review of the antidumping duty order on large diameter welded pipe from Canada. Since CIT previously found it lacked subject-matter jurisdiction over Pipe & Piling's case, the court terminated the temporary injunction in place and denied the exporter's motion for a statutory junction. However, Judge Jane Restani said that since the company will "lose the opportunity to press its appeal if liquidation is not enjoined, it will suffer irreparable harm," justifying an injunction pending appeal.

CIT Upholds 1 Subsidy Benchmark, Remands Another in CVD Review

The Court of International Trade upheld the Commerce Department's benchmark for measuring a natural gas subsidy provided by the Russian government in the 2021-22 countervailing duty review of Russian phosphate fertilizers, though the court remanded the benchmark for measuring the CVD rate for the provision of phosphate ore mining rights. Judge Jane Restani held that Commerce adequately explained its decision to use global natural gas prices for the benchmark used to measure the natural gas subsidy, though the judge said the agency failed to explain its benchmark of "phosphate rock exports from countries with igneous ore deposits and comparable [bone phosphate of lime] grades to Russia."

CIT Sustains 0% Dumping Margin for Pipe Exporter in AD Review

The Court of International Trade on Feb. 4 sustained the Commerce Department's decision on remand to calculate a zero percent dumping margin for respondent Saha Thai in the 2018-19 review of the antidumping duty order on circular welded carbon steel pipes and tubes from Thailand. Judge Gary Katzmann rejected petitioner Wheatland Tube's argument that an intervening decision from the U.S. Court of Appeals for the Federal Circuit on the scope of the AD order impacts Katzmann's previous decision rejecting the use of adverse facts available against Saha Thai. The judge said his previous decision was made independent of the scope issue before the Federal Circuit, since Commerce failed to provide Saha Thai an opportunity to remedy its submission and thus improperly resorted to AFA.

CAFC Affirms CIT's Rejection of ITC's Automatic Questionnaire Redaction Policy

The U.S. Court of Appeals for the Federal Circuit on Feb. 2 affirmed the Court of International Trade's ruling that the International Trade Commission's policy of automatically redacting questionnaire responses violates the "common-law right of public access to judicial records." Judges Timothy Dyk, Richard Taranto and Raymond Chen said their ruling merely requires the ITC to comply with the relevant statute's "affirmative disclosure obligations" on remand in the present case "and in any other CIT review proceedings in this case." The court held that the statute on the courts' ability to disclose confidential information, 19 U.S.C. 1516a(b)(2)(B), doesn't abrogate the common-law right of public access to judicial records, and that the commission's practice isn't allowed under the statute requiring submitter to designate information sought to be protected as confidential, 19 U.S.C. 1677f.

CIT Sustains in Part, Remands in Part AD Review of Chinese-Origin Xanthan Gum

The Court of International Trade released an opinion Jan. 30 remanding in part and sustaining the Commerce Department’s final results of an antidumping duty review of xanthan gum from China. Judge Gary Katzmann said Commerce committed a "harmless error" in directly rather than indirectly valuing mandatory respondent Neimenggu Fufeng Biotechnologies' administrative costs, but misleadingly characterized Fufeng’s arguments regarding the classification of an input, coal.

CIT Allows 1581(i) Case Challenging Changed Circumstances Review

The Court of International Trade on Jan. 29 held that importer Houston Shutters properly filed suit under Section 1581(i) to contest the Commerce Department's decision not to open a changed circumstances review in regard to whether wood shutter parts were within the scope of the AD/CVD investigations on wood mouldings and millwork products from China. Concurrently, Judge Leo Gordon dismissed a separate but identical lawsuit from Houston Shutters filed under Section 1581(c). Gordon held that Houston Shutters "has alleged facts that reveal new information not available" during the AD/CVD investigations, meaning it couldn't have raised its claims during the investigations and challenged the orders under Section 1581(c).

CIT Denies Section 301 Exclusions for Crypto Mining Chips

The Court of International Trade on Jan. 27 agreed to importer Atlas Power's preferred customs classification of its NVIDIA Crypto Mining Processor 170HX printed circuit assemblies, though it held that the goods failed to qualify for three different Section 301 China tariff exclusions. Judge Lisa Wang first held that the assemblies fit under Harmonized Tariff Schedule subheading 8473.30.1180 as "parts and accessories of [automatic data processing] machines." However, the judge also held that the assemblies don't qualify for the Section 301 exclusions covering graphics-related printed circuit assemblies given that Atlas' products were stripped of their graphics-related functions and solely exist for crypto mining purposes. Wang added that the imports don't qualify for the Section 301 exclusion for "unfinished logic boards," since Atlas' products weren't "unfinished" at the time of importation.

CIT Sustains Benchmark Pick for Vietnamese Land Rental Subsidy

The Court of International Trade on Jan. 8 sustained the Commerce Department's final determination in the countervailing duty investigation of frozen warmwater shrimp from Vietnam. Judge Leo Gordon held that the court "cannot agree" with plaintiff Soc Trang Seafood that Commerce acted unreasonably when it found that the Thailand Board of Investment's "Cost of doing Business in Thailand 2023" report constituted the "best available information on the record for establishing a benchmark to value land rented from government authorities."

CIT Sustains Commerce's Overhead Ratio Calculations in AD Review on Solar Cells

The Court of International Trade on Jan. 8 sustained the Commerce Department's remand results in the 2017-18 review of the antidumping duty order on solar cells from China following a remand from the U.S. Court of Appeals for the Federal Circuit on Commerce's overhead ratio calculations due to issues with the agency's energy and manufacturing overhead determinations. For energy costs, the judge said Commerce adequately supported its decision to use inventories costs in the denominator of the overhead ratio, since "some amount of energy costs is contained in inventories costs" and the agency can't strip out the non-energy costs. Regarding the manufacturing overhead costs, Kelly said the evidence supports Commerce's inferences that "inventories costs include some energy costs" and "the difference between cost of sales and inventories costs reflects manufacturing overhead."

CAFC Says Domestic Sales Can Serve As Basis for Transaction Value Appraisement

The U.S. Court of Appeals for the Federal Circuit on Jan. 8 affirmed the Court of International Trade's ruling that sales from importer Midwest-CBK's Canadian warehouse to U.S. customers are "sales for export to the U.S." rather than "domestic sales" and thus were properly appraised using transaction value rather than deductive value. CAFC Judges Sharon Prost and Tiffany Cunningham, along with District Court for the District of Delaware Judge Richard Andrews, sitting by designation, held that the transaction value statute doesn't "expressly require that a sale be international or occur abroad." The court added that the case law and the statutory scheme don't support Midwest's claim, since they establish that "domestic sales may in fact serve as the basis of a transaction value appraisement."