The Commerce Department, in seeking to have countervailing duty respondents verify that neither they nor their U.S. customers benefited from China's Export Buyer's Credit Program, implemented requirements "so onerous" as to make verification "out of reach," plaintiff Dalian Mesien Woodworking Co. said in Sept. 6 comments on Commerce's remand results. Adding to the rebuke of Commerce's submission to the Court of International Trade, plaintiff-intervenor The Ancientree Cabinet Co. argued that the agency's verification process flies in the face of the court's directive to find a "practical solution to verify the non-use" of the EBCP (Dalian Meisen Woodworking Co. v. United States, CIT #20-00110).

The U.S. Court of Appeals for the Federal Circuit in a Sept. 6 opinion said that the Court of International Trade was right to dismiss a suit from two importers seeking to retroactively apply Section 301 tariff exclusions, for lack of subject matter jurisdiction since a protest with CBP was not filed. The trade court held that it did not have jurisdiction under Section 1581(i), the court's "residual" jurisdiction, since the court would have had jurisdiction under Section 1581(a) had the importers, ARP Materials and Harrison Steel Castings, filed protests with CBP. The Federal Circuit agreed, holding that the true nature of the suit contests CBP's assessment of the duties and not the Office of the U.S. Trade Representative's exclusions, necessitating a protest.

Antidumping duty petitioner Wheatland Tube Co. will appeal an August Court of International Trade ruling that found that the Commerce Department properly excluded dual-stenciled pipe from the antidumping duty order on circular welded carbon steel pipes and tubes from Thailand, according to the Sept. 2 notice of appeal. The petitioner will take its case to the U.S. Court of Appeals for the Federal Circuit. At CIT, Judge Stephen Vaden ruled that no line pipe was made in Thailand when the original AD investigation was conducted almost 40 years ago and that the International Trade Commission made no harm finding for line or dual-stenciled pipe from Thailand (see 2208260024) (Saha Thai Steel Pipe Public Co. v. United States, CIT #20-00133).

The Court of International Trade in a Sept. 1 order dismissed a customs classification spat over footwear brought by importer Ever Union International. Stephen Swindell, deputy clerk at the court, said that the action was previously placed on the customs case management calendar and was not removed at the expiration of the period of time of removal. The dispute was over the appraised value of the merchandise, as the importer claimed first sale appraisal, though CBP refused to reliquidate the footwear at the price paid by the middleman to the manufacturer (Ever Union International v. United States, CIT #18-00183).

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 Court of International Trade should not grant importer Greenlight Organic's and Parambir Singh Aulakh's motion for a certification of an order for an interlocutory appeal in a customs fraud case since the court's decision did not emit a "controlling question of law" to be appealed, the U.S. argued in a Sept. 1 reply brief. The court's opinion denied a motion for judgment since facts were still in dispute, precluding the interlocutory appeal, the U.S. said (United States v. Parambir Singh "Sonny" Aulakh, CIT #17-00031).

The Court of International Trade in a Sept. 2 opinion upheld parts and sent back parts of the Commerce Department's final determination in the countervailing duty investigation on phosphate fertilizers from Russia. In a case contested by respondents PhosAgro Cherepovets and EuroChem and petitioners LLC Industrial Group Phosphorite and The Mosaic Co., Judge Jane Restani found that Commerce erred in adjusting the natural gas benchmark price by adding the relevant 20% VAT and 5% import duty and misapplying its methodology in calculating EuroChem's total sales by relying on a number given by EuroChem that included sales from eight producers and input suppliers to export trading company EuroChem Trading Rus. The judge also sent back Commerce's cut-off date for measuring subsidies in the Russian economy.

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).

The Court of International Trade in a Sept. 1 order granted the Office of the U.S. Trade Representative's motion to voluntarily reconsider its decision to not reinstate an exclusion to the Section 301 duties on water coolers from China. Plaintiff DS Services of America, doing business as Primo Water North America, didn't oppose the motion. USTR said it wanted to reevaluate its decision given Prime Water's charges of the agency's alleged violation of the Administrative Procedure Act and Natural Choice's request to withdraw its opposition to the reinstatement of the exclusion (DS Services of America v. U.S., CIT #22-00157).