The U.S. Court of Appeals for the Federal Circuit on May 9 issued a pair of decisions sustaining the Commerce Department's 2018-19 and 2019-20 reviews of the antidumping duty order on activated carbon from China. In the 2018-19 review, Judges Richard Taranto, Alvin Schall and Raymond Chen upheld Commerce's surrogate value pick for coal-based carbonized material, an input of activated carbon. In the 2019-20 review, the judges upheld the agency's pick of Malaysia as the primary surrogate country and the surrogate value selections for carbonized material, coal tar, hydrochloric acid, steam and ocean freight.

The Court of International Trade on May 8 held that CBP can't unilaterally reliquidate entries erroneously liquidated in violation of a suspension order from the court. Judge Gary Katzmann said CBP can't avoid the court's role in disturbing the finality of liquidation and ordering equitable relief. The judge went on to deny this equitable relief to the government, which inadvertently liquidated 174 entries of solar panels without applicable Section 201 safeguard duties. Katzmann declined to extend such relief to CBP on the basis that the agency inflicted the harm itself and failed to show it was adequately diligent in preventing the error.

The Court of International Trade on May 6 sustained the Commerce Department's antidumping duty investigation on forged steel fittings from India. After two remands for Commerce's decision to use a questionnaire in lieu of onsite verification, the agency conducted an in-person verification of respondent Shakti Forge Industries' facilities in India. Judge Stephen Vaden declared the procedural claims "vanquished," then sustained the agency's reliance on Shakti's reported costs. The judge noted that Commerce didn't find a "single inaccuracy" in the respondent's reporting and reasonably accepted the exporter's explanation of its finishing processes to be reasonable.

The Court of International Trade on May 6 upheld parts and sent back parts of the Commerce Department's 2020-21 review of the countervailing duty order on phosphate fertilizer from Russia. Judge Jane Restani remanded Commerce's benchmark calculations for the provision of phosphate rock mining rights for less than adequate remuneration and natural gas for LTAR programs. The judge said Commerce improperly excluded data on phosphate rock taken from sedimentary reserves and erred in using sales of natural gas from Kazakhstan to Russia. However, Restani sustained the use of data only from 2021 to calculate the mining rights subsidy, calculation of respondent JSC Apatit's phosphate rock cost of sales plus profit, and use of adverse facts available to find that Apatit's natural gas suppliers were government authorities.

Fish oil ethyl ester concentrates imported by BASF are "extracts of fish" under Harmonized Tariff Schedule heading 1603 and not food preparations under heading 2106, the Court of International Trade held on May 2. Judge Joseph Laroski said the concentrates are extracts of fish oil, since they maintain many key characteristics of the fish oil, and that fish oil is fish for purposes of the HTS heading. In granting BASF its preferred HTS classification, Laroski sidestepped the issue of whether the U.S. could seek a classification different from the one chosen by CBP through a counterclaim at the trade court.

The Court of International Trade ruled April 29 that importer Mitsubishi Power Americas’ catalyst blocks, which chemically convert nitrous oxide from industrial pollutant emitters into nitrogen and water, were filters, not “other” catalytic reactors. It acknowledged that Mitsubishi had defined a Section 301 exclusion for “other” catalytic reactors based on the products, but said the importer had been on notice that its products might not be covered by the language of the exclusion because the language of the exclusions themselves, not product descriptions contained in the exclusion requests, define what's subject to the exclusions (Mitsubishi Power Americas v. United States, CIT # 21-00573).

The U.S. Court of Appeals for the Federal Circuit in a pair of decisions on April 28 upheld the Commerce Department's separate antidumping duty rate decisions in the 2012-13 and 2014-15 reviews of the AD order on new pneumatic off-the-road tires. Judges Richard Taranto, Raymond Clevenger and Todd Hughes held that the companies' claims regarding whether Commerce could "deem decisive an exporter’s failure to establish lack of state control of management selection," without more proof of state control over export activities, were precluded by the court's recent decision in Pirelli Tyre Co. v. U.S. In Pirelli, the court directly answered this question and said the agency could consider state control of management selection without tying it to export activities. The judges then turned to the record and said Commerce's decision to reject the separate rate bids for all three companies was backed by substantial evidence.

The District Court for the District of Montana on April 25 transferred a case challenging tariff action taken under the International Emergency Economic Powers Act to the Court of International Trade. Judge Dana Christensen rested the decision on two prior cases that found challenges to tariff action taken under the Trading With the Enemy Act, IEEPA's predecessor, to belong in the U.S. Customs Court, the trade court's predecessor. While the plaintiffs said IEEPA has more restricted authority than TWEA, the judge said IEEPA has the "same operative language" as TWEA. The court said the plaintiffs failed to show how the "limits placed on the IEEPA’s grant of authority affect" CIT's jurisdiction. The plaintiffs, four members of the Blackfeet Nation tribe, have already filed a notice of appeal, declaring that they will take the matter to the U.S. Court of Appeals for the Ninth Circuit.

Twelve U.S. states, led by Oregon, filed a lawsuit at the Court of International Trade challenging President Donald Trump's ability to impose tariffs using the International Emergency Economic Powers Act. The complaint contests all of Trump's tariff orders issued under IEEPA as a violation of both the statutory authority conveyed by IEEPA and the Constitution's principle of separation of powers. The suit, filed by Oregon Attorney General Dan Rayfield, also challenges CBP's series of Cargo Systems Messaging Service notices implementing the tariffs under the Administrative Procedure Act.

The U.S. Court of Appeals for the Federal Circuit on April 23 again rejected the Commerce Department's use of the Cohen's d test to detect targeted dumping in the second decision on the issue in as many days. The court said it's bound by yesterday's decision rejecting the test for not adhering to basic statistical assumptions. Writing individually, Judge Leonard Stark suggested he may have been compelled to reach a different position on the use of the test as "one step" in Commerce's "three-step differential pricing analysis" if it weren't for the court's recent decision.