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 did not properly explain why it was appropriate to inflate a Mexican labor wage rate using Brazilian data in an antidumping duty investigation, the Court of International Trade ruled in a Sept. 13 opinion, made public Sept. 21. Commerce requested a voluntary remand in the case to further explain its decision, since it admitted to the court that it did not explain this position. Judge M. Miller Baker also sent the case back so the agency can identify the evidence in the record that supports granting Guangzhou Ulix Industrial & Trading Co. a separate rate.

The U.S. cannot seize or forfeit imports that are federally deemed "drug paraphernalia" but whose delivery, possession and manufacture were made legal at the state level, the Court of International Trade ruled Sept. 21. Judge Gary Katzmann found Washington state's move to make the marijuana-related drug paraphernalia legal allows interested parties to import the paraphernalia under the federal exemption laid out in the Controlled Substances Act.

The U.S. was wrong to argue that the Commerce Department does not need to satisfy any criteria when refusing to start a successor-in-interest changed circumstances review, plaintiff GreenFirst Forest Products argued in a Sept. 19 reply brief at the Court of International Trade. The government ignored that both Commerce and the trade court have recognized the agency's practice of looking at whether the agency individually calculated the former company's subsidy rate to deny the successor-in-interest CCR, the plaintiff said (GreenFirst Forest v. U.S., CIT #22-00097).

The Court of International Trade in a Sept. 20 order denied a motion from John Liu and GL Paper Distribution, defendants in a Section 592 penalty case, to strike a portion of the complaint. Liu moved to toss elements of the complaint he deemed to not be relevant to the imports at issue. Judge Jane Restani ruled that striking these parts of the complaint would be "premature," since the matter of relevancy is a "question of evidence" and not meant to be subject to a motion to strike.

The U.S. Court of Appeals for the Federal Circuit should allow the U.S. to double its word count in its reply brief in a case on President Donald Trump's move to revoke a tariff exclusion for bifacial solar panels, the U.S. argued in a Sept. 15 brief at the appellate court. The government argued that good cause exists for their motion since it must reply to the issue of presidential authority raised by the appellees along with several alternative problems, and because the importance of the issues in question warrant an enlargement of the word count (Solar Energy Industries Association v. United States, Fed. Cir. #22-1392).

The Commerce Department properly dropped its use of facts available over a South Korean port usage rights program in a countervailing duty review, the Court of International Trade ruled Sept. 19. Judge Jennifer Choe-Groves also found that because the result is a de minimis rate, reviewing whether the program is countervailable "would have no practical significance and is mooted," sustaining Commerce's remand results.

The Commerce Department is finalizing a two-year waiver from antidumping and countervailing duties for solar cells and modules from Cambodia, Malaysia, Thailand and Vietnam that are subject to ongoing anticircumvention inquiries. The agency’s Sept. 16 final rule mandates that no suspension of liquidation, cash deposit requirements or AD/CV duty assessments will apply until June 6, 2024, in the event that Commerce finds circumvention of Chinese solar cells duties, though the grace period could be terminated earlier, and the solar cells must now be used within a certain period to qualify.

The Commerce Department properly found that the South Korean government did not provide a countervailable subsidy via the provision of electricity below cost, the U.S. argued in a Sept. 12 reply brief at the U.S. Court of Appeals for the Federal Circuit in the case's second visit to the appellate court. Replying to countervailing duty petitioner and plaintiff-appellant Nucor Corp., the government said that it carried out a lawful "Tier 3" less than adequate remuneration (LTAR) analysis, looking at whether the Korean government sets its tariffs pursuant to market principles, and that it did not violate the Federal Circuit's prior ruling in the case since it did not undertake a preferentiality analysis. Nucor ignored the "lion's share of Commerce's actual determination," when arguing that the agency did carry out a preferentiality analysis, the brief said (POSCO v. United States, Fed. Cir. #22-1525).

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).