Jacob Kopnick

The U.S. Court of Appeals for the Federal Circuit on June 2 upheld a Court of International Trade ruling that S.C. Johnson's Ziploc brand reclosable sandwich bags are classified under Harmonized Tariff Schedule heading 3923 as articles for the conveyance or packing of other goods, dutiable at 3%, as opposed to heading 3924 as plastic household goods, which would be eligible for duty-free Generalized System of Preferences benefits program treatment. Since the bags could fall under either heading 3923 or 3924, heading 3923 is the correct home for the bags since its terms are "more difficult to satisfy and describe the article with a greater degree of accuracy and certainty," the Federal Circuit said.

Thai pipe exporter Blue Pipe Steel Center Co. filed an unopposed motion to stay proceedings on June 1 in its Enforce and Protect Act challenge until a decision is received from a related case involving a scope ruling on the underlying antidumping duty order in the Court of International Trade. Blue Pipe is hoping to reverse the affirmative determination that its dual stenciled pipe evaded antidumping duties on circular welded carbon steel pipes and tubes from Thailand. Since a related lawsuit from Saha Thai is challenging a scope ruling that found that dual-stenciled pipe was covered by the AD duty order, Blue Pipe's case should wait until the scope matter is settled, the company said.

The Court of International Trade sustained the Commerce Department's remand results that, unprompted by court order, raised the antidumping rate for Indian steel exporter Venus Wire Industries, in a June 2 opinion. Though Judge Mark Barnett had in November only ordered Commerce to further explain its use of partial AFA in the underlying review, Commerce also changed its calculations to raise the AD rate on Venus for its stainless steel bar exports from India from 5.35% to 24.6%.

The Court of International Trade in a June 2 opinion remanded an antidumping administrative review on multilayered wood flooring from China to the Commerce Department after a related ruling in the U.S. Court of Appeals for the Federal Circuit found the mandatory respondents to not be subject to the AD order. In the remand, Commerce is to determine a new rate for the separate rate respondents now that the existing 0.79% dumping margin for the mandatory respondents' rate no longer applies.

The following lawsuits were recently filed at the Court of International Trade:

Turkish steel exporter Celik Halat ve Tel Sanayi accused the Commerce Department of a "severe abuse of discretion" by rejecting entire questionnaire responses because certain parts were filed 21 minutes and 87 minutes late in an antidumping and a countervailing duty investigation, respectively. Celik Halat says Commerce should not have applied adverse facts available to its exports of prestressed concrete steel wire strand from Turkey due to the late filings in two May 28 motions for judgment. (Celik Halat ve Tel Sanayi A.S. v. United States, CIT #21-00045, #21-00050).

The following lawsuits were recently filed at the Court of International Trade:

The Biden administration doesn't have a timeline for its decision on whether to allow states to import drugs from Canada, according to a May 28 memo supporting a motion to dismiss a challenge in the U.S. District Court for the District of Columbia. Pharmaceutical Research and Manufacturers of America had challenged President Donald Trump's administration for allowing states to bring in Canadian drugs as a measure to control costs. The memo said that because no specific program has been authorized for imports, the plaintiffs “cannot establish any actual injury” relating to the presidential decision (Pharmaceutical Research & Manufacturers of America, et al. v. U.S. Department of Health and Human Services, et al., D.D.C. #20-03402).

Steel exporter Saha Thai Steel Pipe Public Co. agreed to the Commerce Department's remand results dropping the cost-based particular market situation adjustment in the sales-below-cost test for imports of circular welded carbon steel pipes and tubes from Thailand, according to May 28 comments filed in the Court of International Trade. The Department of Justice also signed off on the remand results, finding that although Commerce filed the results under respectful protest, continuing to find a PMS in Thailand, the agency complied with court orders by scrapping the PMS adjustment (Saha Thai Steel Pipe Public Co. Ltd. v. United States, CIT #19-00208).

COVID-19 manufacturing complications distorted both the timing and the volume of imports over the post-petition period in antidumping and countervailing duty investigations into small vertical shaft engines from China, and the International Trade Commission should not have made findings of critical circumstances that led to imposition of retroactive AD/CV duties in the eventual AD/CVD orders, U.S. importer MTD Products Inc. alleged in a May 28 complaint filed in the Court of International Trade. Foreign manufacturers could not produce the subject merchandise for a "significant portion of the pre-petition period due to COVID-19-related plant closures," MTD said. "Further, COVID-19-related closures in the United States, in addition to commercial uncertainties regarding Petitioner’s long-term viability and inability to meet a spike in domestic demand artificially inflated import volumes over this period," the complaint said. "These extraordinary circumstances significantly distorted both the timing and volume of imports over the post-petition period, the first two factors the Commission must consider when making a finding of critical circumstances." (MTD Products Inc v. United States, CIT #21-00264).