Although attorneys were expecting further guidance from the Court of International Trade over how best to claim "first sale" valuation with the CBP, they got even more questions about how the valuation tactic will be applied, Kevin Leonard, international trade lawyer at Grunfeld Desiderio, said at a Jan. 26 webinar hosted by the U.S. Fashion Industry Association. Speaking about CIT's March decision in Meyer Corp. v. U.S., Leonard discussed what he saw as the opinion's impacts and flaws, including a failure to look at the "second sale" price in the case and the addition of a new requirement for parties looking to claim first sale.

The Commerce Department's requirement that an antidumping respondent report all of its factors of production (FOP) data on a control number (CONNUM)-specific basis violated the law because it's a legislative rule subject to the Administrative Procedure Act but was imposed without the required notice-and-comment period, respondent Shanxi Pioneer Hardware Industrial Co. said in a Jan. 26 brief. Responding to arguments from the Department of Justice and the AD petitioner at the U.S. Court of Appeals for the Federal Circuit, Pioneer also said that even if the requirement isn't deemed a legislative rule, Commerce's CONNUM-specific rule is unlawful since it restricted the agency's ability to rely on non-CONNUM-specific data (Xi'an Metals & Minerals Import & Export Co. v. U.S., Fed. Cir. #21-2205).

The trade provisions of the America COMPETES Act of 2022, the House's answer to the Senate U.S. Innovation and Opportunity Act, proposes some dramatic changes to antidumping and countervailing laws. The ADD/CVD section draws on a bipartisan bill from the Senate led by Ohio's two senators, but co-sponsored by Sen. Todd Young, R-Ind. Young will be a major player on the conference committee, so that suggests that the ADD/CVD changes could well end up in the final package.

The lack of access to business confidential information (BCI) in an antidumping and countervailing duty evasion investigation violated wire hanger importer Leco Supply's due process rights, the importer told the Court of International Trade in a Jan. 24 brief. Responding to CBP's remand results in which it took another look at its initial finding of evasion under the Enforce and Protect Act, Leco said its lack of access to confidential information and the withholding of information not entitled to confidentiality at the administrative level "clearly risked erroneous deviation of Leco's private interests," the brief said. An administrative protective order issued during EAPA investigations would end this concern, the importer told the trade court (Leco Supply v. U.S., CIT #21-00136).

Trade Law Daily is providing readers with the top stories from last week in case you missed them. All articles can be found by searching on the title or by clicking on the hyperlinked reference number.

The Commerce Department must reconsider its final determination in an antidumping duty investigation into truck and bus tires from China, the Court of International Trade said in a Jan. 24 decision. Judge Timothy Stanceu sent the matter back to Commerce so it could reconsider its decision to deny the two groups of plaintiffs -- led by Guizhou Tyre Co. and Double Coin Holdings -- separate rate status in the investigation. The judge said that the agency's reasoning was "vague and ambiguous" as to whether its inquiry focused on the Chinese government's control of the plaintiffs' export activities.

The Commerce Department's decision to compare two foreign manufacturers' production processes with integrated steel mills from China was unreasonable, Bruneian company HLDS (B) Steel and Philippine company HLD Clark Steel Pipe Co. told the Court of International Trade in a Jan. 24 complaint. Such a comparison -- used in a recent anti-circumvention inquiry -- was unreasonable since integrated steel mills make primary steel in many forms, not just oil country tubular goods -- the merchandise subject to the anti-circumvention inquiry, the complaint said (HLDS (B) Steel SDN BHD v. United States, CIT #21-00638).

The Comfy, a wearable blanket imported by the Cozy Comfort Company, should be classified as a blanket rather than a pullover, the importer told the Court of International Trade in a Jan. 21 complaint. Due to its Sherpa interior lining and function as a blanket, The Comfy should be classified under the Harmonized Tariff Schedule subheading for a blanket, the complaint said (Cozy Comfort Company v. United States, CIT #21-00404).

Since antidumping duty respondent Hyundai Heavy Industries served as a mandatory respondent in five consecutive ADD reviews, the Commerce Department reasonably found that the company did not act to the best of its ability by not being entirely forthcoming in its reporting of the gross unit prices for its home market sales, ADD review petitioner ABB Enterprise said. Responding to Hyundai's arguments in its case at the U.S. Court of Appeals for the Federal Circuit in a Jan. 24 brief, ABB said that Hyundai's reporting error was the result of "carelessness and inattentiveness" while preparing its data. For this reason, the imposition of total adverse facts available is appropriate, ABB said (Hyundai Electric & Energy Systems v. United States, Fed Cir. #21-2312).

The Commerce Department violated the law when it found antidumping duty respondent Papierfabrik August Kohler's Blue4est developer-free paper to be within the scope of the AD duty order on thermal paper from Germany, the respondent told the Court of International Trade in a Jan. 21 complaint. Commerce, in its preliminary determination, found the Blue4est paper to be outside of the scope of the order but changed its decision in the final results. This decision wasn't based on a change in evidence but rather a "conclusory decision to ignore the limited scope of the term 'thermal paper' as defined in the petition," the respondent said (Koehler Paper SE v. U.S., CIT #21-00633).