The Commerce Department violated the law by simply averaging ocean freight data from Xeneta and Descartes to value ocean freight in a benchmark calculation in a countervailing duty review, respondent Risen Energy Co. argued in a Sept. 1 complaint at the Court of International Trade. Commerce should have used just the Xeneta data since it is the only source that fulfilled the agency's regulatory guidelines for the cost of ocean freight, Risen said. The respondent also railed against Commerce's use of total adverse facts available over Risen's U.S. customers' alleged use of China's Export Buyer's Credit Program -- a move repeatedly struck down by the trade court (Risen Energy Co. v. United States, CIT #22-00231).
Specialty medical foods designed for infants and toddlers should be classified as medicaments and also enter duty-free under special Chapter 98 tariff provisions for articles for the handicapped, Nutricia North America said in an Aug. 31 motion at the Court of International Trade. Nutricia has asked the court to order CBP to classify the products under Harmonized Tariff Schedule of the U.S. subheading 3004.50.5040, with a secondary classification under HTSUS subheading 9817.00.96, to reliquidate the subject entries, and to issue refunds plus interest to Nutricia (Nutricia North America v. U.S., CIT #16-00008).
The U.S. cannot ignore commercial reality when arguing against the fact that importer Bral Corporation contracted for defect-free merchandise, Bral argued in a Sept. 1 reply brief at the Court of International Trade. Bral is seeking to establish a valid claim for an allowance -- a move the U.S. contests by arguing that the importer failed to produce any documents to detail the quantity, sizes or specifications of its imported plywood. Bral said that while this may be true, it's clear from other evidence that Bral developed the specifications for the imports over a significant period that led to the import of its plywood products (Bral Corporation v. United States, CIT #20-00154).
CBP properly denied customs broker license exam test taker Byungmin Chae credit for questions 5, 27 and 33 of the April 2018 customs broker license exam, the U.S. argued in an Aug. 31 reply brief filed at the U.S. Court of Appeals for the Federal Circuit. DOJ went through each question, detailing why CBP's answer was the correct one and why Chae's preferred answer was errant (Byungmin Chae v. Janet Yellen, Fed. Cir. #22-2017).
The following lawsuits were recently filed at the Court of International Trade:
The Court of International Trade in an Aug. 31 order dismissed a case challenging an antidumping duty investigation's final determination subject to a suspension agreement. In the case, led by plaintiff Confederacion de Asociaciones Agricolas del Estado de Sinaloa (CAADES), the U.S. Court of Appeals for the Federal Circuit said that the appellants have the right to challenge the final determination even if it's subject to a suspension agreement, though it did toss many of the claims made against the determination (see 2204140067) (Confederacion de Asociaciones Agricolas del Estado de Sinaloa v. United States, CIT #19-00206).
The Court of International Trade in an Aug. 26 order stayed the consideration of the merits of plaintiff Environment One's claims in a case seeking to apply retroactive Section 301 exclusions until the court settles the U.S.'s motion to dismiss the case for lack of subject matter jurisdiction. DOJ moved to stay consideration of Environment One's claim its merchandise falls within the scope of the claimed exclusion, arguing the stay "would advance the interests of justice" and "could render litigation on the nature of plaintiff's imported merchandise to be unnecessary." Judge Mark Barnett agreed (Environment One v. U.S., CIT #22-00124).
The U.S. Court of Appeal for the Federal Circuit corrected an error in a recent opinion, changing the listing for the lead attorney for some of the plaintiff-appellants. The appellate court issued the errata, listing Jonathan Stoel of Hogan Lovells as the lead attorney for appellants ITG Voma, Mayrun Tyre (Hong Kong), Sutong Tire Resources and YC Rubber (North America), instead of Nicholas Sparks. In the nonprecedential opinion, the Federal Circuit ruled that the Commerce Department cannot select just one mandatory respondent in an antidumping review where multiple exporters have requested a review (see 2208290026) (YC Rubber v. U.S., Fed. Cir. #21-1489).
The U.S.'s rationale for hitting antidumping respondent Ajmal Steel Tubes & Pipes Ind. with adverse facts available -- that the company did not respond to the best of its ability -- is "conclusory, superficial, and unsupported by record evidence," Ajmal argued in an Aug. 26 reply brief at the Court of International Trade. The Commerce Department ignored the entire record when denying one of Ajmal's questionnaire submissions and its extension request, and then applying AFA, since COVID-19 restrictions created an "extraordinary circumstance," and justified the late filing, the brief said (Ajmal Steel Tubes & Pipes Ind. v. United States, CIT #21-00587).
The Commerce Department erred when it continued to rely on adverse facts available despite a remand order invalidating the agency’s original reasoning for the AFA rate, Cabinets To Go (CTG), a U.S. retail chain, said in its Aug. 29 comments filed to the Court of International Trade. CTG intervened in the challenge to a final determination from Commerce’s antidumping duty investigation on wooden cabinets and vanities from China (Dalian Meisen Woodworking v. U.S., CIT # 20-00109) because the calculated rates of its own suppliers were based on AFA rates for Meisen.