The Court of International Trade in its April 1 remand order gave the Office of the U.S. Trade Representative “one final opportunity” to cure its Administrative Procedure Act violations and "flesh out" the reasons why it rejected the 9,000+ comments it received in the lists 3 and 4A Section 301 tariff rulemakings, without devising “new rationales for dismissing them,” Akin Gump lawyers for lead Section 301 plaintiffs HMTX Industries and Jasco Products said in comments on USTR’s Aug. 1 remand determination. “USTR’s response to that directive flunks the Court’s test,” they said (In Re Section 301 Cases, CIT #21-00052).

The Court of International Trade “bent over backwards” to allow the Office of the U.S. Trade Representative to comply with its Administrative Procedure Act obligations in its imposition of the lists 3 and 4A Section 301 tariffs on Chinese goods when it remanded the duties to the agency for further explanation on the rationale for the actions it took in the context of the comments it received, said an amicus brief filed Sept. 14 in the massive Section 301 litigation from the Retail Litigation Center, CTA, the National Retail Federation and four other trade associations. With USTR’s “non-responsive” answer to the remand order, the time has come for the court “to impose the normal remedy for unlawful agency action” and to vacate the lists 3 and 4A tariffs, it said (In Re Section 301 Cases, CIT #21-00052).

The Court of International Trade, in a departure from a string of past rulings, said in a Sept. 13 opinion that the Commerce Department properly used adverse facts available over China's Export Buyer's Credit Program in a countervailing duty case. Judge M. Miller Baker ruled that Commerce "reasonably explained" why it needed key information from the Chinese government, which wasn't provided, to determine whether the CVD respondents and their U.S. customers used the EBCP. Otherwise, the attempt at verification "amounted to 'looking for a needle in a haystack with the added uncertainty that Commerce might not even be able to identify the needle when it was found,'" the judge said.

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The Commerce Department has the authority to address a particular market situation in an antidumping case when normal value is based on home market sales, AD petitioner Wheatland Tube argued in its Sept. 12 opening brief at the U.S. Court of Appeals for the Federal Circuit. The Federal Circuit should overturn the Court of International Trade's ruling, which found that Commerce acted illegally in relying on constructed value when it found that a PMS distorted the cost of production of the home market sales (Saha Thai Steel Pipe Public Co. v. United States, Fed. Cir. #22-1175).

CBP must refund the interest accrued on duty overpayments, phone case importer Otter Products argued in a Sept. 12 motion for judgment at the Court of International Trade. Having had the duty overpayments themselves refunded following prior court action at CIT and the U.S. Court of Appeals for the Federal Circuit, Otter took to the court again to request the interest. The plaintiff argued that since the full payments were never made voluntarily, it is entitled to a refund of the interest accrued on the payments made in connection with prior disclosures, and that the statute unambiguously mandates the maximum penalty for prior disclosures involving negligent conduct (Otter Products v. United States, CIT #22-00033).

CBP unlawfully began an Enforce and Protect Act investigation into CEK Group since the allegation submitted by M&B Metal Products didn't support the start of the investigation, CEK Group argued in a Sept. 12 motion for judgment at the Court of International Trade. To start an EAPA action, there must be an allegation with specific information -- something CBP did not receive from M&B, the brief said. The plaintiff said the Royal Brush v. U.S. case at the trade court "has now constrained CBP" in EAPA cases from making decisions based on confidential information not made available to the parties via public summaries -- something CBP allegedly did in CEK Group's case (CEK Group v. U.S., CIT #22-00082).

CBP unlawfully changed exporter J.D. Irving's antidumping duty cash deposit rate on its 2020 entries months after the rate had been confirmed when no administrative review had been requested of the exporter, J.D. Irving argued in a Sept. 9 complaint at the Court of International Trade. Because the change came after assessment instructions had been issued for the 2020 review period, it improperly set a cash deposit that was not based on same dumping margin as its most recent assessment rate, the exporter said (J.D. Irving v. U.S., CIT #22-00256).

The Court of International Trade denied a motion by Midwest-CBK that asked the court to have two issues appealed to the U.S. Court of Appeals for the Federal Circuit, in a Sept. 7 order from Judge Jennifer Choe-Groves. The order said that the issues at hand did not meet the requirements for an interlocutory appeal because they involved questions of fact, not purely law (Midwest-CBK, LLC v. United States, CIT Consol. #17-00154).

The Commerce Department in a pair of remand results submitted to the Court of International Trade stuck by its position to exclude importers Worldwide Door Components' and Columbia Aluminum Products' door thresholds from the scope of the antidumping and countervailing duty orders on aluminum extrusions from China. After the trade court remanded the case for a second time, finding that the previous remand results were not submitted in a form the trade court could sustain, Commerce offered a further explanation for its decision to find that the thresholds fit under the finished merchandise exclusion to the orders (Worldwide Door Components v. U.S., CIT #19-00012) (Columbia Aluminum Products v. U.S., CIT #19-00013).