Decisions by a single port of entry cannot act as the basis for claims of an established treatment nationally by CBP for customs purposes, DOJ told the Court of International Trade in a brief filed March 29. In a tariff classification challenge brought by Kent International related to bicycle seats, DOJ said CBP New York/Newark's granting of protests doesn't establish a treatment that required notice and comment before CBP Long Beach classified the bicycle seats in a different subheading (Kent International Inc. v. United States, CIT #15-00135).
Court of Federal Appeals Trade activity
The Commerce Department improperly found that Krakatau POSCO -- a joint venture between a private South Korean steel company and an Indonesian government-owned firm -- was not a government authority, leading Commerce to find its provision of cut-to-length steel plate below cost was not countervailable, the Wind Tower Trade Coalition said. Making its case to the U.S. Court of Appeals for the Federal Circuit in a March 28 opening brief, the coalition said that Commerce "effectively elevated form over substance, frustrated the intent of the CVD law" and allowed Indonesia's wind tower exporter to "escape duties" (PT. Kenertec Power System v. U.S., CIT Consol. #20-03687).
The U.S. Court of Appeals for the Federal Circuit affirmed a 35% duty rate for StarKist's tuna salad pouches, agreeing with CBP's preferred Harmonized Tariff Schedule subheading, in a March 30 opinion. Upholding the Court of International Trade's opinion, Judges Kimberly Moore, Timothy Dyk and Jimmie Reyna said that the tuna pouches were "not minced" and "in oil," prompting their placement under subheading 1604.14.10.
The Supreme Court of the U.S. declined to take up a key case over the president's power under the Section 232 national security tariff statute. Rejecting a petition from importer Transpacific Steel and several other companies, SCOTUS in effect upheld a U.S. Court of Appeals for the Federal Circuit decision that said that the president can increase tariffs under Section 232 beyond procedural time limits.
A recent U.S. Court of Appeals for the Federal Circuit ruling is "bears directly on, and fully supports" plaintiffs Wilmar Trading's, Wilmar Bioenergi Indonesia's and Wilmar Oleo North America's arguments in an antidumping duty case over whether a particular market situation exists, the plaintiffs said in a March 21 notice of supplemental authority at the Court of International Trade. The opinion, Nexteel Co. v. U.S., set up a bright line rule over how Commerce can use its PMS authority that cuts against the PMS determination made by Commerce in the antidumping duty matter contested by the plaintiffs, the notice said (Wilmar Trading PTE v. United States, CIT Consol. #18-00121).
The U.S. Court of Appeals for the Federal Circuit denied antidumping duty petitioner Welspun Tubular's request for a stay of its mandate during the company's appeal to the Supreme Court. In a March 23 order, Judges William Bryson and Todd Hughes rebuffed both of Welspun's arguments, which claimed that the company would suffer irreparable harm without a stay and that there's a reasonable shot the Supreme Court will reverse the appellate court's judgment (Hyundai Steel Company v. United States, Fed. Cir. #21-1748).
A recent U.S. Court of Appeals for the Federal Circuit ruling is "critical" to an antidumping duty case brought by exporter SeAH Steel Corporation, defendant-intervenor U.S. Steel Corporation said in a March 21 notice of supplemental authority at the Court of International Trade. The recent Federal Circuit opinion held that the Commerce Department did not properly support its position that a particular market situation existed affecting inputs to oil country tubular goods from South Korea (see 2203110044). While the appellate court's decision upheld the trade court's ruling that the PMS determination was not justified, the court used different reasoning that U.S. Steel finds crucial to its case (SeAH Steel Corporation v. United States, CIT Consol. #19-00086).
The U.S. Court of Appeals for the Federal Circuit issued its mandate following an opinion allowing the Commerce Department to use adverse facts available due to the Chinese government's failure to provide information on its electricity price-setting practices, in a countervailing duty review. In the January opinion, the appellate court affirmed Commerce's CV duties for the provision of electricity below cost after the Chinese government failed to explain price variations across different provinces (see 2201280033). The March 21 mandate affirms Commerce's results in the administrative review of the CVD order on solar cells from China (Canadian Solar v. United States, Fed. Cir. 21-1434).
U.S. steel company Nucor Corporation will appeal to the U.S. Court of Appeals for the Federal Circuit a January Court of International Trade decision that held that no benefit was conferred on South Korean steel companies through the provision of electricity, according to the March 22 notice of appeal. The case has previously been to the Federal Circuit, where the appellate court remanded it for unlawfully relying on price discrimination instead of a thorough fair-market principles evaluation (see 2202020035). The trade court said that the Commerce Department has now addressed the Federal Circuit's concerns (POSCO v. United States, CIT #16-00225).
The Commerce Department ignored the Court of International Trade's and U.S. Court of Appeals for the Federal Circuit's instructions when it continued to rely on the "likely selling price" of non-prime goods to set rates in an antidumping duty case, exporter AG der Dillinger Huttenwerke said in a March 15 brief responding to Commerce's remand results. Dillinger says the agency continued to use facts otherwise available even after the trade court ruled it unsupported, arguing Commerce must instead use the company's actual data (AG der Dillinger Huttenwerke v. United States, CIT Consol. #17-00158).