CBP misclassified imports of dried botanicals that are painted, dyed or glittered, importer Second Nature Designs argued in a Sept. 26 complaint at the Court of International Trade. The botanicals were liquidated under Harmonized Tariff Schedule subheading 0604.90.6000, dutiable at 7%, though Second Nature believes they should be classified under subheading 0604.90.3000, free of duty, the complaint said (Second Nature Designs v. United States, CIT #18-00131).
The Court of International in a Sept. 27 order denied a joint motion from plaintiffs in an Enforce and Protect Act case and the U.S. to stay proceedings pending the trade court's resolution of an action looking into whether the Commerce Department's relevant scope determination was legal. Judge Mark Barnett held that the claims in the EAPA case "are largely independent of Commerce's scope ruling."
The Court of International Trade should reconsider its decision upholding the Commerce Department's differential pricing analysis in an antidumping duty review given the U.S. Court of Appeals for the Federal Circuit's decision calling the use of a statistical test underpinning the analysis into question, plaintiff SeAH Steel Corp. argued in a Sept. 26 motion. SeAH said the opinion also should be revisited over its move to uphold Commerce's inclusion of SeAH's inventory valuation losses as general and administrative (G&A) expenses (SeAH Steel Corp. v. United States, CIT Consol. #19-00086).
The following lawsuits were recently filed at the Court of International Trade:
Antidumping duty respondent Asia Pacific Fibers (APF) failed to exhaust its administrative remedies in its challenge of the Commerce Department's use of a questionnaire instead of on-site verification, the U.S. argued in a Sept. 26 reply brief at the Court of International Trade. Given this failure, the U.S. had no chance to consider and address the issues raised by the respondent for the first time, the brief said. Further, the U.S. defended Commerce's use of total adverse facts available over APF's failure to supply "critical" supplementary information over the respondent's cost and sales data (PT. Asia Pacific Fibers v. United States, CIT #22-00007).
Importer Maple Leaf Marketing (MLM) filed a complaint at the Court of International Trade on Sept. 23 seeking duty-free treatment for its boronized steel tubing that was made in the U.S., exported to Canada for alteration, then brought back into the U.S. MLM said that its imports qualify for classification under Harmonized Tariff Schedule secondary subheading 9802.00.50. The importer further sought to clear its goods of Section 232 steel and aluminum duties since the products are of U.S. origin (Maple Leaf Marketing v. United States, CIT #20-03839).
Steel company NLMK Pennsylvania has "no basis" to argue that the Court of International Trade should take over the Section 232 tariff exclusion process and simply award the importer hundreds of millions of dollars, the U.S. argued in a reply brief at the trade court. Looking to rebut NLMK's arguments seeking to discredit the Commerce Department's denials of NLMK's 58 Section 232 exclusion requests, the U.S. said that the relief that the steel company seeks is "clear overreach" (NLMK Pennsylvania v. United States, CIT #21-00507).
The U.S. Court of Appeals for the Federal Circuit issued its mandate on Sept. 23 in a case brought by Vicentin on the antidumping duty investigation on biodiesel from Argentina. In the opinion, the Federal Circuit held that tradeable tax credits fall within the regulatory definition of a "price adjustment," meaning the Commerce Department properly deducted the credits from respondent LDC Argentina's export price (see 2208020052). The court said that the agency's use of an international market price for soybeans in its constructed value calculation for biodiesel does not count as a double remedy, even though the U.S. imposed countervailing duties on Argentine soybeans (Vicentin v. United States, Fed. Cir. #21-1988).
The Commerce Department must provide further explanation for, and if needed, reconsider its finding as to whether the "likely selling price" of non-prime plate set in antidumping respondent AG der Dillinger Huttenwerke's books is the best available information for evaluating the cost of production, the Court of International Trade ruled in a Sept. 23 opinion. Given the U.S. Court of Appeals for the Federal Circuit's opinion in a "parallel matter" instructing Commerce to find the actual cost of production for prime and non-prime cut-to-length plate, Judge Leo Gordon sent back Commerce's reliance on Dillinger's "likely selling price" of non-prime plate.
The Commerce Department properly hit antidumping respondent Shanxi Pioneer Hardware Industrial with total adverse facts available for its failure to report all of its factors of production data on a control number (CONNUM)-specific basis, the U.S. Court of Appeals for the Federal Circuit held in a Sept. 23 opinion. Judges Kimberly Moore, Pauline Newman and Kara Stoll ruled that the CONNUM-specific reporting requirement is an interpretive rule and not a legislative one requiring a notice-and-comment period, and found Pioneer failed to cooperate to the best of its ability by not maintaining adequate records and not developing a proper reporting methodology.