When the Court of International Trade on Sept. 13 ruled that the Commerce Department could use adverse facts available for use of China's Export Buyer's Credit Program, an appeal of the matter seemed inevitable. The trade court had issued a string of opinions rejecting Commerce's ability to use AFA in this way, and the U.S. had refused to appeal, leading to the issue floating in legal limbo given CIT's lack of power to issue a precedential opinion. Judge M. Miller Baker's opinion upholding use of AFA put the power to appeal in the hands of the countervailing duty respondents (see 2209140029). While an appeal may seem straightforward, other concerns cloud the prospect.

The Court of International Trade in an Oct. 4 opinion ruled that CBP properly classified net wraps used for bailing hay as a warp knit fabric under Harmonized Tariff Schedule subheading 6005.39.00. Judge Mark Barnett ruled against classification under plaintiff RKW Klerks' preferred subheading 8433.90.50 as "parts" of "harvesting or threshing machinery."

CBP did not violate the law by refusing to make a referral to the Commerce Department on a question of country of origin since CBP was "fully able to determine" that the wooden cabinets and vanities at issue in an Enforce and Protect Act investigation were covered by the relevant orders, petitioner Masterbrand Cabinets argued in an Oct. 4 reply brief at the Court of International Trade (Skyview Cabinet USA v. United States, CIT #22-00080).

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The Supreme Court's decision in West Virginia v. EPA demands that the U.S. Court of Appeals for the Federal Circuit reconsider its decision finding that a protest with CBP is needed to retroactively apply Section 301 duty exclusions, the appellants and importers ARP Materials and Harrison Steel Castings argued in an Oct. 4 brief. Seeking reconsideration at the appellate court, ARP and Harrison said that the Federal Circuit's opinion does not consider the EPA case, which embraced the "major questions doctrine" -- the idea that federal agencies need explicit congressional approval to regulate issues fundamental to the economy (ARP Materials v. United States, Fed. Cir. #21-2176).

CBP filed remand results in an Enforce and Protect Act case at the Court of International Trade Oct. 3, continuing to find products from importers Ikadan System USA and Weihai Gaosai Metal are subject to the antidumping and countervailing duty orders on steel grating from China. The U.S. had filed a voluntary remand request to add the record of the Commerce Department's scope ruling to the record, but after putting it on the record, CBP stuck to its guns on the evasion finding, declaring that the scope ruling supported its initial decision (Ikadan System USA v. U.S., CIT #21-00592).

The U.S. Supreme Court in an Oct. 3 order took up a case over whether the government can indict a foreign state-owned bank under the Foreign Sovereign Immunities Act. Turkey's state-owned bank, Halkbank, was charged in October 2019 with fraud, money laundering and conspiracy to violate the International Emergency Economic Powers Act after allegedly working with Iran to evade U.S. sanctions. The case was brought to a New York district court, where a judge allowed the prosecution to proceed, finding that the FSIA doesn't extend to criminal cases and that if it did, its commercial activity exemptions allow for prosecution of the case (Turkiye Halk Bankasi A.S. v. U.S., #21-1450).

The Court of International Trade erroneously upheld the Commerce Department's finding that an Australian exporter did not reimburse an affiliated importer for antidumping duties paid and subsequent decision not to deduct the amount of the duties from the exporter's U.S. price, United States Steel Corp. argued in a Sept. 30 opening brief at the U.S. Court of Appeals for the Federal Circuit (United States Steel Corp. v. United States, Fed. Cir. #22-2078).

Surety company American Home Assurance Co.'s (AHAC's) affirmative defense of laches requires it to prove that it suffered prejudice given the government's delay in commencing a legal action over uncollected antidumping duties. AHAC has failed to do so and thus cannot make its laches claims, the U.S. argued in a Sept. 28 reply brief at the Court of International Trade. The surety company has failed to show either defense or economic prejudice in arguing that the case should be dismissed since it was filed beyond the statute of limitations to collect the duties under the bond, the U.S. said (United States v. American Home Assurance Company, CIT #20-00175).

A group of insurers and importers filed a lawsuit in the U.S. District Court for the Southern District of New York looking to seize a vessel as collateral for losses north of $39 million after thousands of shipping containers went overboard during a November 2020 voyage. Filing a five-count complaint at the district court, the plaintiffs said that the court should issue a warrant for the arrest of the vessel and its cargo given a group of shipping companies' damage to the cargo and breach of contract, among other violations (Mitsui Sumitomo Insurance Company of America v. M/V One Apus, S.D.N.Y. #22-08233).