Court of International Trade activity

The Court of International Trade issued its final judgment in the Transpacific Steel case that held that the president can impose greater Section 232 national security tariffs beyond the 105-day time frame for action set out in the statute (see 2107130059). After the U.S. Court of Appeals for the Federal Circuit overturned CIT's original decision finding such action illegal, the trade court reversed its decision concurrent with the appellate court's mandate, in a Nov. 22 judgment. Plaintiffs in the case recently petitioned the Supreme Court to hear the case (see 2111150061) (Transpacific Steel LLC, et al. v. United States, CIT #19-00009).

The Court of International Trade should sustain the Commerce Department's reversion to its initial decision to adjust a Turkish pipe exporter's post-sale price by only one-third of a late delivery penalty in an antidumping duty investigation, both the plaintiff, Borusan Mannemsann, and the antidumping petitioners said. However, the sides were divided over what to do about Commerce's failure to address Borusan's date of sale, with Borusan simply calling for CIT to sustain the results and the petitioners calling for another remand to address the sale date issue (Borusan Mannesmann Boru Sanayi ve Ticaret A.S. v. U.S., CIT Consol. #19-00056).

The Court of International Trade, noting an impasse on a key jurisdictional question in a customs case in a Nov. 22 letter, gave the litigants 30 days to work out a solution on how best to proceed. Acknowledging the legitimacy of both sides' jurisdictional claims, Judge Jane Restani said that if the parties fail to resolve the matter in 30 days, then the plaintiff, FD Sales Company, has 10 days to amend its complaint (FD Sales Company LLC v. United States, CIT #21-00224).

Trade Law Daily is providing readers with some recent top stories. All articles can be found by searching on the title or by clicking on the hyperlinked reference number.

The following lawsuits were recently filed at the Court of International Trade:

The Commerce Department erred in using the Cohen's d test to identify potential masked dumping in an antidumping investigation, Ashley Furniture argued in a Nov. 19 motion for judgment at the Court of International Trade. Tapping a recent Court of Appeals for the Federal Circuit opinion that questioned the validity of the standardized mean difference test, Ashley Furniture argued that Commerce's use of the test in the AD investigation into welded line pipe from South Korea rests on the same faulty assumptions that the Federal Circuit already rejected (Ashley Furniture Industries, LLC, et al. v. United States, CIT #32-00283).

The Court of International Trade should dismiss a challenge of CBP's alleged failure to issue full Section 301 refunds for lack of jurisdiction since the case was untimely filed, the Department of Justice argued in a Nov. 19 brief. Plaintiff FD Sales' rebuttal says that the 180-day deadline to file a case that runs from a protest denial does not apply in this case since CBP did not actually deny the protest, but that the protest can be considered denied in part due to CBP's failure to give the full refund. DOJ countered, in the case's most recent brief, that this argument must be rejected since it is "undisputed" that FD Sales filed its summons more than 180 days after the date of the decision (FD Sales Company LLC v. United States, CIT #21-00224).

The Court of International Trade permitted a group of U.S. agricultural trade associations to file an amicus brief in a case over the International Trade Commission's injury determination in an investigation into phosphate fertilizers from Morocco and Russia. After facing pushback from the U.S. and the petitioners, J.R. Simplot Company and The Mosaic Company, Judge Stephen Vaden said the amici "represent the actual users of that fertilizer, the farmers, i.e., those who ultimately pay the price of the tariffs imposed" (OCP S.A., et al. v. United States, CIT Consol. #21-00219)

Sales of goods warehoused in Canada to U.S. customers were not “domestic sales,” but sales “for exportation to the U.S. that should be appraised using transaction value, the Department of Justice said in a brief filed Nov. 19 at the Court of International Trade (Midwest-CBK, LLC v. U.S., CIT # 17-00154). The brief comes in reply to a filing from Midwest-CBK that argued CBP improperly valued the relevant entries because they were “domestic sales,” ordered by U.S. customers from Midwest-CBK’s U.S. sales force, and title transferred after delivery FOB in Buffalo (see 2111080068). DOJ said “domestic sales” is not a term found in the customs laws, and the sale meets all the requirements for a good sold for U.S. export.

Antidumping duty respondent Ajmal Steel Tubes and Pipes Ind. filed a complaint at the Court of International Trade over the Commerce Department's denial of part of its responses in an AD administrative review. The company challenges Commerce's rejection of its questionnaire responses for being untimely filed for being nearly two hours late, despite COVID-19-related technical difficulties. The decision was especially egregious since Commerce granted itself lengthy extensions to meet deadlines in the review, the company said (Ajmal Steel Tubes & Pipes Ind. LLC v. United States, CIT #21-00587).