The Court of International Trade on Dec. 5 partly remanded and partly sustained a Commerce Department countervailing duty investigation of Malaysian wind towers. It sustained the use of a Singaporean Tier III electricity benchmark, but remanded to have Commerce explain how it now calculates entered value adjustments and address exporter CS Wind’s concern about Malaysian land benchmarks.

The U.S. Court of Appeals for the Federal Circuit on Dec. 5 held that the countervailing duty statute doesn't require the Commerce Department "to compare the enterprise or industry at issue with all users of the subsidy." Interpreting the statute, which says Commerce can find de facto specificity if a company or industry is "a predominant user of the subsidy," Judges Jimmie Reyna, Sharon Prost and Raymond Chen said the agency has "reasonable flexibility in determining the comparator group." Commerce's decisions to limit the comparator group is reviewed for its reasonableness, the court said.

The U.S. Court of Appeals for the Federal Circuit held on Dec. 4 that the Court of International Trade erred in ruling that importer Blue Sky the Color of Imagination's planning calendars are classified as diaries under Harmonized Tariff Schedule subheading 4820.10.20.10. Judges Alan Lourie, William Bryson and Raymond Chen said the trade court violated the principle of stare decisis by going against the CAFC's 2002 ruling in Mead Corp. v. U.S., which interpreted the term "diary" as referring to "retrospective, not prospective" records. However, the Federal Circuit didn't settle on a final subheading for the products at issue, though it noted that the U.S. offered "some seemingly persuasive arguments" for why Blue Sky's goods fall under heading 4820 rather than under heading 4910 as calendars.

The Court of International Trade on Dec. 2 remanded the Commerce Department's treatment of the costs to convert steel plates into wind towers in the 2021-22 antidumping review of utility wind scale towers from South Korea. Judge Leo Gordon found that Commerce failed to adequately explain why it chose to accept respondent Dongkuk's reported conversion costs instead of the costs reported by the petitioner, the Wind Tower Trade Coalition. The judge rejected the government's "circular reasoning" that Dongkuk reported its conversion costs "based on its normal books and records," and the judge held that the agency didn't explain why the petitioner's costs analysis using the first control number characteristic, tower sections, is "inappropriate."

The Court of International Trade on Nov. 25 flipped its decision on the classification of Honeywell's precut, radial, chordal and web fabric pieces used in airplane brakes, finding on reconsideration that they are classifiable as fabrics under subheading 6307.90.98. Previously, Judge Mark Barnett had ruled the segments were "parts of an aircraft" under duty-free subheading 8803.20.00, but Barnett now found that, while the fabric pieces are finished parts of needled preforms, those preforms aren't finished parts, or blanks, of final brake discs. In doing so, he defined a "blank" as an article that undergoes finishing operations and not a substantial transformation.

The Court of International Trade on Nov. 26 found provisions of CBP's Enforce and Protect Act regulations violate importers' due process rights. Judge Jennifer Choe-Groves said a provision which requires notice to the importer no later than five business days after day 90 of an EAPA investigation doesn't give the importer a "procedural due process right to notice" and a "meaningful opportunity to be heard" prior to the imposition of interim measures. She also found CBP erred in taking more than 15 days to open an investigation after receiving an allegation. Instead of vacating the investigation, however, the judge ordered CBP to "rescind the interim and final enforcement measures imposed on quartz countertop products imported by" Superior water Sept. 29, 2022, the date on which the court said CBP was required to start its investigation.

The U.S. Court of Appeals for the Federal Circuit on Nov. 19 dismissed Nebraska man Byungmin Chae's second case challenging the results of his April 2018 customs broker license exam. Chae previously litigated the results of the exam in an earlier case before the Court of International Trade and CAFC, ultimately coming just one correctly answered question shy of a passing grade. After the Supreme Court declined to take up his first case, Chae filed another lawsuit to challenge one question on the test. The Federal Circuit dismissed the second lawsuit, finding that Chae should have brought any additional claims against the question in his first case.

The U.S. Court of Appeals for the Federal Circuit on Nov. 17 sustained the Commerce Department's decision not to attribute subsidies received by Nur, an affiliated input supplier of countervailing duty respondent Kaptan Demir, to Kaptan in the 2018 CVD review of Turkish rebar. Juges Raymond Chen, Richard Linn and Todd Hughes held that the Court of International Trade didn't abuse its discretion in initially remanding the review. They said that Commerce properly found that the "unprocessed steel scrap" provided by Nur "was a common input used in a variety of products and industries" and that "Nur’s business activities were not dedicated almost exclusively to the production of a higher value-added product."

The U.S. Court of Appeals for the Federal Circuit on Nov. 17 held that five types of medical foods imported by Nutricia North America are properly classified as "medicaments" under Harmonized Tariff Schedule heading 3004 and not as "food preparations" under heading 2106. Reversing the Court of International Trade's decision, Judges Sharon Prost, Richard Taranto and Leonard Stark found that Nutricia's goods plainly fall within heading 3004, particularly due to the fact that they qualify as "medical foods" as defined by Congress and the FDA in implementing the Federal Food, Drug and Cosmetics Act. Taranto, writing for the court, added that the entries aren't excluded from heading 3004 due to Chapter 30's note 1(a), which says Chapter 30 doesn't include foods or beverages "(such as dietetic, diabetic or fortified foods, food supplements, tonic beverages and mineral waters), other than nutritional preparations for intravenous administration."

The Court of International Trade on Nov. 12 granted the government's motion for default judgment in a customs penalty suit against importer Rago Tires, imposing a $14,108.87 civil penalty against the company. Judge Joseph Laroski found that Rago violated customs laws "by means of negligence" and not gross negligence, as the U.S. argued. The judge said that although the company's filing error, in which it failed to declare its goods were subject to antidumping and countervailing duties, was "material," the facts don't show "willful, wanton, or reckless misconduct."