The Commerce Department was justified in continuing to apply total adverse facts available in an antidumping case after a Court of International Trade remand since the respondent failed to accurately report control number-specific U.S. sales and factors of production data when it could have "easily" done so, case petitioner Catfish Farmers of America said in a July 9 reply brief. Doubling down on Commerce's arguments, the catfish farmers said the court should sustain the remand results in the case over the final results of the 14th administrative review of the antidumping duty order on frozen fish fillets from Vietnam (Hung Vuong Corporation, et al. v. United States, CIT #19-00055).
toarticlessource documents
Search Primer
Term list: Separate terms with spaces, not commas or semicolons.
Multi-word term: Place inside quotes to ensure an exact match (e.g. "surrogate value").
Acronyms: Use all capital letters to ensure the search is not looking for that letter sequence instead. (e.g., CIT).
Required term: If a term must be included in any resulting articles, prefix it with a plus sign (e.g., CBP +ruling).
Excluded term: If a term should be excluded from any articles being found, prefix it with a minus sign (e.g., ruling -NY).
Simplest form: Use the simplest form of a term (e.g. "russian export control" instead of "russian export controls") or "entity list" instead of "entity listing" or "entity listed").
The Court of International Trade rejected the Commerce Department's rationale for applying a particular market situation adjustment to a sales-below-cost test in an antidumping case, in a July 19 opinion. Having repeatedly ruled that no such adjustment can be made, Judge Jennifer Choe-Groves remanded the results in the 2015-16 administrative review of the antidumping order on circular welded non-alloy steel pipe from South Korea for the third time. Judge Choe-Groves held that the statute instructs Commerce to only make PMS adjustments when calculating constructed value in an AD case and to only use sales in the “ordinary course of trade” when establishing normal value. Since PMS sales are not within the ordinary course of trade, they should be dropped from a normal value calculation rather than used to adjust the cost of production, she said.
The U.S. Court of Appeals for the Federal Circuit's July 13 decision in favor of President Donald Trump's Section 232 tariff increase for Turkish steel past the 105-day deadline set by statute may be a serious setback for Turkish steel exporters (see 2107130059), but what it means for the remaining litigation challenging the president's authority under Section 232, Section 301 or any other statute granting the executive tariff powers is less clear, lawyers said in the days following the decision.
The Court of International Trade on July 19 dismissed Jaramillo Spices Corporation's challenge of a CBP redelivery notice, finding it lacked jurisdiction seeing as the lawsuit was untimely filed and concerned a decision made by the Food and Drug Administration. Jaramillo brought in a single entry of tamarind from Mexico which the FDA ruled was adulterated. The agency then ordered Jaramillo to export or destroy the shipment within 90 days which the importer failed to do. CBP then issued a notice of liquidated damages and demanded $50,000 as payment. The Southern Texas U.S. District Court had already ruled it doesn't have jurisdiction of a similar lawsuit Jaramillo filed there.
The following lawsuits were recently filed at the Court of International Trade:
Porsche Motorsports North America failed to show that its exported, then reimported, trailer with auto parts and tools qualifies for a particular Harmonized Tariff Schedule subheading that would have allowed it duty-free treatment, the Department of Justice said in a July 9 reply brief. Since Porsche acknowledged that certain articles it brought in from Canada had not originally been exported from the U.S. to Canada, the shipment fails to meet the standard for Harmonized Tariff Schedule of the U.S. subheading 9801.00.85, DOJ argued (Porsche Motorsports North America, Inc. v. U.S., CIT # 16-00182).
Steel producer Nucor Tubular Products Inc. will appeal a June 24 Court of International Trade opinion to the U.S. Court of Appeals for the Federal Circuit, according to a July 15 notice of appeal. The decision sustained the Commerce Department's decision to drop a particular market situation adjustment to the cost of production for South Korean steel in an antidumping review (see 2106240028). In particular, the case, originally brought by Dong-A Steel Co., concerns the 2016-17 antidumping administrative review of heavy walled rectangular welded carbon steel pipes and tubes from South Korea. The case marked yet another instance of the PMS determination having been made on insufficient evidence since Commerce used "substantially the same record evidence" (Dong-A Steel Company v. United States, CIT #19-00104).
Opposing sides in the Section 301 litigation appeared from the July 15 status conference at the U.S. Court of International Trade to be inching toward a compromise that would spare CBP the administrative burden of complying with the court's July 6 preliminary injunction (PI) order freezing liquidation of many thousands of unliquidated customs entries with lists 3 and 4A tariff exposure. The court called the conference to gauge progress in creating the order's "repository" for importers to seek the suspension of entries due to be liquidated during a 28-day temporary restraining order period that expires Aug. 2.
The following lawsuits were recently filed at the Court of International Trade:
Importer Amoena USA Corp. wants the Court of International Trade to find that its mastectomy brassieres of Harmonized Tariff Schedule subheading 6212.10.90, dutiable at 16.9%, should properly be classified as the duty-free subheading of 9021.39.0000, according to a July 14 complaint. The former subheading covers "other brassieres of manmade fiber," while the importer's preferred subheading covers "Orthopedic appliances artificial parts of the body; parts and accessories thereof: Other artificial parts of the body and parts and accessories thereof: Other." Mastectomy brassieres are an accessory for artificial breasts for women who have had mastectomies. The brassieres are used to hold the artificial breast in position and are predominantly sold in medical settings, the complaint said. Since they are "principally used as accessories of artificial breast forms" they should be classified in Chapter 90 of the HTS, Amoena said (Amoena USA Corp. v. United States, CIT #20-00100).