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.

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 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. 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).

The International Trade Commission’s finding that imports of methionine from Spain and Japan had a significant impact on the domestic industry and contributed to its declining performance was reasonable and correct, the government said in an Aug. 29 motion at the Court of International Trade (Adisseo Espana v. U.S., CIT #21-00562). The motion came in response to an Aug. 12 motion by Spanish exporter Adisseo, which argued that the commission overvalued the importance of price in its determination of injury in the antidumping duty investigation (see 2208150017).

Antidumping duty respondent Nagase & Co's oversight in submitting information to the Commerce Department leading to a "patently erroneous assessment rate," does not justify Commerce shirking its responsibility to provide remedial fairness, Nagase argued in an Aug. 29 reply brief at the Court of International Trade. While Nagase admits to its error, the respondent argued that Commerce still has an obligation to correct the mistake now that the agency knows of its existence (Nagase & Co. v. United States, CIT #21-00574).

The Court of International Trade in an Aug. 26 opinion upheld the Commerce Department's remand results in a case over the 2016-17 administrative review of the antidumping duty order on oil country tubular goods from South Korea. In the remand results, Commerce reversed its decisions finding that a particular market situation existed for a key input of the OCTG products, and adjusting respondent Nexteel Co.'s reported costs for the value of non-prime products at their sales price and allocating the difference between the full production cost and market value of the non-prime products to the production costs of the prime OCTG.

Only an admissibility decision from CBP can stop a deemed exclusion from happening according to the law, importer Root Sciences argued at the U.S. Court of Appeals for the Federal Circuit in a bid to establish subject-matter jurisdiction in its case over seized imports. The Court of International Trade previously ruled that it doesn't have jurisdiction over cases in which CBP seized the subject goods, finding that a seizure does not constitute an admissibility determination (see 2110070022). Root argued that this decision throws it into a "jurisdictional wilderness" and calls into question the validity of past decisions the trade court relied on for the notion that seizure before the expiration of the 30-day deemed exclusion window stops the running of the statutory deemed exclusion period (Root Sciences v. United States, Fed. Cir. #22-1795).

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The Commerce Department cannot select just one mandatory respondent in an antidumping review where multiple exporters have requested a review, the U.S. Court of Appeals for the Federal Circuit ruled in an Aug. 29 nonprecedential opinion. Reversing the Court of International Trade's finding, judges Pauline Newman, Alvin Schall and Sharon Prost said Commerce's interpretation of the statute finding that it can use only one respondent runs "contrary to the statute's unambiguous language." The judges ruled the agency has not shown it to be otherwise reasonable to calculate the all-others rate based on only one respondent and said the directive to find a weighted average gives no reason why it's reasonable to use only a single rate.