The Court of International Trade in an Oct. 20 opinion again ruled it's legal for importer Keirton USA to possess and import its merchandise, deemed "drug paraphernalia" federally, into Washington state. Building on the Eteros decision at CIT that declared the same thing, Judge Claire Kelly said the state's repeal of past restrictions on marijuana-related drug paraphernalia constitutes an authorization of the manufacture, possession and distribution of these goods, so that importing these goods qualifies for the exemption under the Federal Mail Order Drug Paraphernalia Control Act of 1986. Kelly, like Judge Gary Katzmann in the Eteros decision, relied on the Supreme Court case Murphy v. NCAA to find the term "authorization" applies to Washington state law.

CBP's denial of plaintiff-appellant Borusan Mannesmann's post summary corrections (PSCs) and administrative refund request constitutes a protestable decision, meaning Borusan had jurisdiction to seek Section 232 steel and aluminum tariff exclusions, Borusan and Gulf Coast Express Pipeline argued in an Oct. 17 opening brief at the U.S. Court of Appeals for the Federal Circuit. The appellants also said that Federal Circuit precedent established that CBP's denial of a timely request for a refund of previously paid duties can constitute a protestable decision, and while these precedential opinions do not concern unliquidated entries as is the case with Borusan, there is nothing limiting these decisions (Borusan Mannesmann Boru Sanayi Ticaret v. United States, Fed. Cir. #22-2097).

The Court of International Trade on Oct. 18 stopped the International Trade Commission from disclosing the business proprietary information (BPI) of a group of plaintiffs led by Amsted Rail Co. Judge Gary Katzmann granted the plaintiffs' move for a temporary restraining order in an action concerning whether the ITC violated the Administrative Procedure Act and the plaintiffs' 5th Amendment due process rights by giving its former lawyer access to its BPI in his new role as counsel to parties with adverse interests to ARC (Amsted Rail Co. v. United States International Trade Commission, CIT #22-00307).

An argument from apellees, including the Solar Energy Industries Association, in a Federal Circuit case that the safeguard statute implicitly limits the president to make "trade-liberalizing" measures relies on a "strained reading of the statutory contest," by placing undue emphasis on the fact that section 2254(b)(1)(B) lets the president find that the domestic industry "has made" a positive adjustment to import competition, the U.S. argued in an Oct. 17 reply brief at the U.S. Court of Appeals for the Federal Circuit. This position "relies on an illusory distinction between complete and ongoing adjustment," the brief said (Solar Energy Industries Association v. United States, Fed. Cir. #22-1392).

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

Janssen Ortho and the government have signed a settlement agreement regarding the duty-free treatment of an active pharmaceutical ingredient imported by Janssen Ortho, according to an Oct. 17 motion asking the Court of International Trade to dismiss related cases. The Oct. 14 settlement agreement resolved all outstanding claims in the three cases and applied the Court’s final judgment from Janssen Ortho, LLC v. U.S., case number 13-00296, to all the relevant entries and drawback claims. In that case, the court ruled that darunavir ethanolate is properly classified under Harmonized Tariff Schedule of the U.S. subheading 2935.00.60 and eligible for duty-free treatment. The settlement preceded an Oct. 17 deadline ordered by CIT Judge Jennifer Choe-Groves, which would have required the company to refile its 13-00296 complaint if the parties could not come to a settlement agreement. Neither Janssen nor DOJ responded to requests for comment on the settlement.

Importer Advantus Corp. moved to voluntarily dismiss its case seeking to obtain Section 301 tariff refunds at the Court of International Trade. The case was previously stayed pending the appeal of decisions made in two cases, ARP Materials v. U.S. and Harrison Steel Castings Co. v. U.S. In these cases, the U.S. Court of Appeals for the Federal Circuit upheld the trade court's ruling that a protest was needed to retroactively apply Section 301 tariff exclusions (see 2209060035). Both the Federal Circuit and CIT said that they did not have the jurisdiction to hear the challenge since the importers did not timely file protests of the CBP liquidations assessing the Section 301 duties (Advantus Corp. v. United States, CIT #21-00055).

The Commerce Department properly applied to antidumping duty respondent Hyundai Electric & Energy Systems total adverse facts available, the U.S. said in response to Hyundai over Commerce's remand results at the Court of International Trade. The agency should not have hit the respondent with partial AFA, as Hyundai argued, since the missing service-related revenues (SRRs) on the record are not a limited and discrete category of information and since Hyundai's omission of one U.S. sale is significant, given the limited number of sales, the U.S. said (Hyundai Electric & Energy System Co. v. United States, CIT #20-00108).

The Commerce Department did not properly conduct its "primarily dedicated" analysis when it found that Nur Gemicilik ve Tic is a cross-owned input supplier of plaintiff Kaptan Demir Celik Endustrisi ve Ticaret, Kaptan argued in an Oct. 11 reply brief at the Court of International Trade. The U.S.'s position that Nur is a cross-owned input supplier since scrap is used in the production of subject merchandise and all of Nur's scrap generation was sold to Kaptan, thus making it "primarily dedicated" to the downstream product, cuts against the words of the countervailing duty preamble and Commerce's own precedent, Kaptan said (Kaptan Demir Celik Endustrisi ve Ticaret v. United States, CIT #21-00565).

The Court of International Trade should stop the International Trade Commission from releasing a group of plaintiffs' business proprietary information (BPI) to its former counsel and his firm, Buchanan Ingersoll, given the former counsel's alleged "betrayal," the plaintiffs, led by Amsted Rail Co. (ARC), argued in an Oct. 14 complaint at the Court of International Trade. By not blocking the release of the BPI, the ITC is violating the Administrative Procedure Act and the plaintiffs' 5th Amendment due process rights, the brief said (Amsted Rail Co. v. United States International Trade Commission, CIT #22-00307).