The government's lawsuit seeking to collect antidumping duties on imports of canned mushrooms from China brought in between 2001 and 2002 suffers from serious legal shortcomings, surety American Home Assurance Company (AHAC) said in a May 14 reply brief in the Court of International Trade. Arguing that the government's claims are precluded under res judicataand stare decisis , barred under the statute of limitations and based on untimely and legally void reliquidations, the surety wants the court to rule on the case and grant it the costs associated with litigation. "It defies logic that bills issued ten (10) years later for the same set of entries should be more recoverable than the bills issued in a far shorter time frame," the surety said.

Palm oil importer Virtus Nutrition's wish for an expedited briefing schedule has hit a snag, with the Department of Justice filing its opposition to the importer's application for an order directing the U.S. government to show cause why an expedited litigation schedule should not be entered in the Court of International Trade. Due to the case involving a "complex, novel legal issue" and a longer discovery period for the case, DOJ argued Virtus' request for a shortened litigation timeline should be nixed. The case involves Virtus' more than $2 million in palm oil imports from Malaysia held up by CBP over suspicions of having been made with forced labor, in violation of a Withhold Release Order (Virtus Nutrition, LLC v. United States, CIT # 21-00165).

The Court of International Trade is considering staying two antidumping cases until a related question has concluded litigation in the U.S. Court of Appeals for the Federal Circuit, Judge Jennifer Choe-Groves said in a May 13 letter. In the Federal Circuit, a particular market situation (PMS) finding for certain oil country tubular goods from South Korea is being challenged and could be determined to be directly relevant to exporter SeAH Steel Corp.'s cases in CIT (SeAH Steel Corp. v. United States, CIT # 19-00086 and # 20-00150). The Department of Justice broached the idea of a stay until the Federal Circuit case, brought by Nexteel Co., is settled in another SeAH challenge of the same Commerce Department determination (see 2105120028). Responses in both SeAH cases to the question of a stay are due by May 17.

Chinese tire exporters argued against the Commerce Department's choice to only use one mandatory respondent in an antidumping case on certain passenger vehicle and light truck tires from China, filing opening briefs in the U.S. Court of Appeals for the Federal Circuit on May 11. Exporters and appellants ITG Voma Corporation, Suton Tire Resources, YC Rubber Co. and Mayrun Tyre submitted two briefs in the appeal of a Court of International Trade opinion that determined that the statute allows for Commerce to select only one respondent. The exporters argue this is a misinterpretation of the law, citing the language of the governing statute, which includes the plural terms "exporters" or "producers."

The Court of International Trade remanded an antidumping case on off-the-road tires from China for a second time, ruling that the Commerce Department failed to provide substantial evidence in determining that two respondents were under de facto government control and not warranting of an individual AD rate. Commerce had determined the Chinese government controlled export functions for Aeolus Tyre and Guizho Tyre Co. (GTC). Judge Timothy Stanceu disagreed in a May 14 opinion. The first remand was in 2019.

The U.S. Court of Appeals for the Federal Circuit upheld the Court of International Trade's decision to reject a Commerce Department methodology for calculating antidumping duty margins, in a May 14 opinion. In the ruling, the Federal Circuit found Commerce's attempt to allocate import duties exempted or rebated "based on the import duty absorbed into, or imbedded in, the overall cost of producing the merchandise under consideration," when constructing the export price in an AD review, was unsupported by the law. Commerce attempted this new methodology for calculating the U.S. price for Indian exporter Uttam Galva Steels Limited in an antidumping duty investigation into corrosion-resistent steel products (CORE) from India.

The Court of Appeals for the Federal Circuit on May 14 upheld the Court of International Trade's decision to reject the Commerce Department's duty drawback adjustment methodology for an Indian exporter in an antidumping duty investigation on corrosion-resistant steel products. Rather than follow its normal method of adjusting only the export price for drawback received by the exporter, Commerce in the investigation adjusted the exporter's overall costs of production, including for home market goods, resulting in a higher AD duty rate. Like CIT, the Federal Circuit held the broader allocation ran afoul of the relevant statute, which only requires an adjustment to export price.

The Commerce Department failed to substantiate the quantity of fish meal and fish oil byproducts when granting a byproduct offset in a remand of an antidumping case, the defendant intervenor, the Catfish Farmers of America, argued in the Court of International Trade. Opposing remand results in a May 11 filing in CIT, CFA said Commerce's decision to flip its byproduct offset ruling on plaintiff NTSF Seafoods Joint Stock Co.'s fish meal and fish oil products was contrary to agency practice and the law. The decision to grant the offset failed to “substantiate” byproduct production and used “unreasonable surrogates to value NTSF's fish meal and oil by-product offsets,” CFA argued. NTSF agreed with the remand results in its own comments.

Since CBP seized a shipment of a cannabis crude extract recovery machine and did not subject it to deemed exclusion from entry, a case challenging the seizure does not have jurisdiction in the Court of International Trade, the Department of Justice said in a May 12 reply brief supporting its motion to dismiss. Importer Root Sciences argues that since it received a notice of seizure after the date of deemed exclusion, its shipment was deemed excluded from entry and thus warranting of jurisdiction in CIT, but citing past court precedent, DOJ said that notice of seizure is not the date of seizure, declaring that "a seizure necessarily occurs prior to the date on which Customs issues the notice of seizure," (Root Sciences, LLC v. United States, CIT # 21-00123).

The Department of Justice requested a stay of proceedings in an antidumping case in the Court of International Trade, arguing that there is significant overlap with a case currently before the Federal Circuit on the issue of whether a particular market situation existed in South Korea for the product in question. Filing for the stay in a case brought by SeAH Steel Corporation challenging the administrative review of the antidumping duty order on certain oil country tubular goods from South Korea, DOJ said that the Federal Circuit's decision will answer one of the central questions in SeAH's lawsuit, and would "likely streamline the issues in the case" (SeAH Steel Corporation v. United States, CIT # 19-00086). Plaintiffs do not consent to the stay request.