The 1974 Trade Act “does not authorize” the Office of the U.S. Trade Representative to increase the “original” Section 301 lists 1 and 2 tariffs on Chinese goods under the “circumstances present” in the lists 3 and 4A duties, argued Akin Gump lawyers for sample case plaintiffs HMTX Industries and Jasco Products, in their final written brief Nov. 15 at the Court of International Trade before the litigation moves to oral argument Feb. 1, 2022. HMTX and Jasco, plus the thousands of complaints their September 2020 lawsuit sparked, seek to get the lists 3 and 4A tariffs thrown out and the paid duties refunded with interest.

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President Donald Trump's decision to revoke a tariff exclusion granted to bifacial solar panels is a "clear misconstruction" of the law since the law permits only trade liberalizing alterations to the existing safeguard measures, the Court of International Trade said Nov. 16, reversing the revocation of the exclusion.

A key U.S. Court of Appeals for the Federal Circuit decision that found that the president can impose greater Section 232 national security tariffs beyond the 105-day deadline for action laid out in the statute is being appealed to the U.S. Supreme Court. Transpacific Steel, Borusan Mannesmann and The Jordan International Company filed a petition Nov. 12 in an attempt to get the high court to side with the original Court of International Trade decision, which held that the president may not make such adjustments.

Importer Valeo North America's lawsuit seeking to compel the Commerce Department to issue a scope ruling should not be dismissed because, though Commerce did eventually issue a scope ruling, the ruling was not lawful, the company argued in a Nov. 15 brief at the Court of International Trade. Though Commerce argued that the scope ruling means CIT no longer has jurisdiction over Valeo's case, the importer says that scope ruling was invalid because it did not follow the framework set by Commerce's scope regulations (Valeo North America, Inc. v. United States, CIT #21-00426).

The three-judge panel at the U.S. Court of International Trade presiding over the Section 301 litigation scheduled oral argument in the HMTX Industries-Jasco Products sample case for Feb. 1, 2022, at 10 a.m. in the court's Ceremonial Courtroom in New York, an order entered Nov. 12 in master case docket 21-cv-52 said. Chief Judge Mark Barnett had asked lawyers from both sides at a virtual status conference Nov.10 to email the court by Nov. 12 about schedule conflicts they had in January and February.

The Commerce Department continued to find the all-others rate in an antidumping investigation by averaging a respondent's zero percent margin and the large China-wide adverse facts available rate, despite the most recent Court of International Trade opinion ruling against this position. Submitting its fourth remand results to CIT, Commerce said that it had to stick with this method for finding the all-others rate due to the scarcity and inadequacy of the alternatives (Linyi Chengen Import and Export Co., Ltd., et al. v. United States, CIT #18-00002).

The Commerce Department denied a group of domestic solar panel manufacturers' bid to remain anonymous in their requests for anti-circumvention inquiries on solar cells from Malaysia, Vietnam and Thailand, denying the requests while noting that the manufacturers may revive the requests if they agree to make their identities public. In a letter sent Nov. 10, Commerce said anonymous treatment is "unwarranted" and that the company's names should be publicly disclosed if the anti-circumvention inquiries are to proceed.

The Court of International Trade "created a paradox" when ruling that CBP's seizure of alleged drug paraphernalia is not an admissibility determination, while at the same time finding that the seizure prevents a deemed exclusion of the merchandise, importer Root Sciences said in a Nov. 8 brief. Looking to get CIT to reconsider a previous ruling that found that the court didn't have jurisdiction over cases in which CBP seized goods, Root said CIT's ruling has caused it to be "cast into a jurisdictional wilderness" (Root Sciences, LLC v. United States, CIT #21-00123).

Hyundai Steel Co. attempted to explain away an attack from antidumping petitioner U.S. Steel that it has a "troubling history" on a key issue in the AD review, in a Nov. 8 brief submitted to the Court of International Trade. Asserting that its prior positions are irrelevant to the issue at hand, Hyundai characterized U.S. Steel's attacks as "without merit," arguing instead that its "perceived deficiency" in certain data fields can be easily explained to Commerce (Hyundai Steel Co. v. United States, CIT Consol. # 19-00099).