The Commerce Department's denial of third country sales data for evasion of antidumping duties in establishing normal value in an antidumping duty case lacks proper evidence, shrimp exporter Z.A. Sea Foods Private Limited said in a brief filed June 18 with the Court of International Trade. ZASF said that there was no evidence in the record to back Commerce's reliance on CBP's determination in an Enforce and Protect Act investigation that ZASF's shrimp imports from Vietnam evaded antidumping duties from India (Z.A. Sea Foods Private Limited et al v. United States, CIT #21-00031).

The three-judge panel in the Section 301 litigation at the Court of International Trade peppered a government lawyer with tough questions June 17 when the judges asked the Department of Justice to explain how its opposition to a court-ordered reliquidation, or money judgment, if the plaintiffs win the case, doesn’t support a finding of irreparable harm for the importers. Oral argument lasting nearly 80 minutes was held on the preliminary injunction (PI) motion Akin Gump filed April 23 for sample-case plaintiffs HMTX Industries and Jasco Products to freeze liquidation of unliquidated customs entries from China with lists 3 and 4A tariff exposure.

The Commerce Department cannot construe the European Union's Common Agricultural Policy as a de jure specific domestic subsidy in a countervailing duty case on ripe olives from Spain, the Court of International Trade said in a June 17 opinion. Finding for the second time that Commerce’s interpretation of the statute is contrary to law, Judge Gary Katzmann found that the agency cannot permissibly find that the CAP was a countervailable specific domestic subsidy since “there is no uniform treatment across the agricultural sector in the provision of benefits.”

A recent U.S. Court of Appeals for the Federal Circuit decision finding that antidumping duty countrywide rates in non-market economies can still be based on adverse facts available even if no respondents were uncooperative in an administrative review (see 2106100044) will be considered in a Court of International Trade case on the Commerce Department's AFA policy, according to a June 14 notice of supplemental authority from the Department of Justice. The Federal Circuit decision in China Manufacturers Alliance, LLC v. United States "substantially overlaps" with a CIT case over Commerce's NME policy brought by Jilin Forest Industry Jinqiao Flooring Group Co., DOJ said (Jilin Forest Industry Jinqiao Flooring Group Co., Ltd., v. United States, CIT #18-00191).

A Commerce Department determination to apply adverse facts available to Thai pipe exporter Saha Thai Steel Pipe Public Company in an antidumping administrative review and spurn the company's sales and cost databases based on a notice of investigation in an evasion case is "egregious," Saha Thai said in a June 15 motion for judgment in the Court of International Trade. Saha Thai expressed particular concern over Commerce's decision to include the company's U.S. sales of dual-certified pipe in its calculation of the antidumping duty margin since it had already been determined that a scope ruling on dual-certified pipe did not apply to entries covered by the 2018-19 administrative review (Saha Thai Steel Pipe Public Company Limited v. U.S., CIT #21-00049).

The U.S. Court of Appeals for the Federal Circuit on June 15 affirmed without opinion a lower court ruling that found women’s trousers made of a yarn extruded from a slurry that contained zinc nanoparticles are not classifiable in the tariff schedule as if they were made from metallized yarn. The appeals court’s Rule 36 judgment follows oral argument held Oct. 10 in the case, appealed by Lockhart Textiles. The decision is non-precedential, and contains no explanation.

It could take two to three years to resolve the massive Section 301 litigation now before the Court of International Trade, especially since it’s “highly likely” the case will be appealed by whichever side loses, David Cohen, a trade expert with Sandler Travis, said on his law firm's webinar June 15. Roughly 3,800 importers are suing the government to declare the lists 3 and 4A tariffs on Chinese goods unlawful and get the money refunded.

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CBP was wrong to exclude certain motor frame assemblies from entry to the U.S. as "drug paraphernalia" since the goods, which will be used to make a marijuana processing machine, are legal in the states of Washington and Nevada, importer Eteros Technologies USA said in a June 11 complaint in the Court of International Trade. Eteros claims that there is an exemption to the law that bans the import of drug paraphernalia when a person who is allowed by local, state or federal law to "manufacture, possess or distribute 'drug paraphernalia.'" CBP has consistently failed to recognize this exemption, Eteros said (Eteros Technologies USA, Inc. v. United States, CIT #21-00287).

The Commerce Department continues to hold that the South Korean government did not provide a countervailable subsidy to producers of hot-rolled steel through cheap electricity and that the agency came to this conclusion in a legal way, despite a decision by the U.S. Court of Appeals for the Federal Circuit to the contrary. In June 10 remand results in the Court of International Trade, Commerce explained why the Federal Circuit was mistaken in its ruling and why it used the appropriate methodology in determining that no benefit was conferred between the Korean government and producers POSCO and Hyundai Steel (POSCO v. United States, CIT #16-00227).