The Court of International Trade heard oral argument on Feb. 1 over whether lists 3 and 4A of Section 301 tariffs were properly imposed, marking one of the largest cases in the CIT's history. The hourslong affair saw the judges push back on arguments made by both the Department of Justice and the plaintiffs, with significant attention paid to the procedural elements of the president's decision to impose the retaliatory Section 301 tariffs on billions of dollars worth of Chinese goods. In all, the three-judge panel of Mark Barnett, Claire Kelly and Jennifer Choe-Groves heard from the Department of Justice, counsel for the test case plaintiffs HMTX Industries and Jasco Products, and amici.

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The massive Section 301 litigation that has inundated the U.S. Court of International Trade since the first cases were filed 16 months ago enters a critical new phase Feb. 1 when oral argument is scheduled for 10 a.m. EST before the three-judge panel of Mark Barnett, Claire Kelly and Jennifer Choe-Groves. Virtually all the thousands of complaints seek to vacate the lists 3 and 4A tariffs on Chinese imports and get the duties paid refunded with interest on grounds that the Office of the U.S. Trade Representative overstepped its tariff-wielding authority under the 1974 Trade Act and violated protections in the 1946 Administrative Procedure Act (APA) against sloppy federal agency rulemakings.

The U.S. Court of Appeals for the Federal Circuit should deny defendant-appellant Wheatland Tube Company's bid to stay proceedings in an antidumping duty case related to use of a particular market situation adjustment to the sales-below-cost test when determining normal value, because the appeals court is unlikely to overturn its own ruling against the judgment in a separate case Wheatland points to as the reason for the stay, plaintiff-appellees Husteel Co. and Hyundai Steel Company said in a Jan. 28 brief (Husteel Co., Ltd. v. United States, Fed. Cir. #22-1300).

The Commerce Department can use adverse facts available over the Chinese government's failure to provide information on its electricity price-setting practices in a countervailing duty review, the U.S. Court of Appeals for the Federal Circuit said in a Jan. 28 opinion. Upholding a decision from the Court of International Trade, the Federal Circuit affirmed Commerce's CV duties for the provision of electricity for less than adequate remuneration (LTAR) after the Chinese government failed to explain price variations across different provinces.

CBP doesn't need to establish intent to defraud the U.S. in order to find an importer evaded antidumping and countervailing duties under the Enforce and Protect Act statute, CBP told the Court of International Trade in its Jan. 27 remand results. Continuing to find that Diamond Tools Technology (DTT) evaded the ADD/CVD order on diamond sawblades from China, CBP said that it only needs to show that DTT submitted false statements to prove evasion. This is in line with the purpose of the law, CBP said, since the purpose is to merely collect AD/CV duties owed to the U.S. (Diamond Tools Technology v. U.S., CIT #20-00060)

Although attorneys were expecting further guidance from the Court of International Trade over how best to claim "first sale" valuation with the CBP, they got even more questions about how the valuation tactic will be applied, Kevin Leonard, international trade lawyer at Grunfeld Desiderio, said at a Jan. 26 webinar hosted by the U.S. Fashion Industry Association. Speaking about CIT's March decision in Meyer Corp. v. U.S., Leonard discussed what he saw as the opinion's impacts and flaws, including a failure to look at the "second sale" price in the case and the addition of a new requirement for parties looking to claim first sale.

The Commerce Department's requirement that an antidumping respondent report all of its factors of production (FOP) data on a control number (CONNUM)-specific basis violated the law because it's a legislative rule subject to the Administrative Procedure Act but was imposed without the required notice-and-comment period, respondent Shanxi Pioneer Hardware Industrial Co. said in a Jan. 26 brief. Responding to arguments from the Department of Justice and the AD petitioner at the U.S. Court of Appeals for the Federal Circuit, Pioneer also said that even if the requirement isn't deemed a legislative rule, Commerce's CONNUM-specific rule is unlawful since it restricted the agency's ability to rely on non-CONNUM-specific data (Xi'an Metals & Minerals Import & Export Co. v. U.S., Fed. Cir. #21-2205).

The lack of access to business confidential information (BCI) in an antidumping and countervailing duty evasion investigation violated wire hanger importer Leco Supply's due process rights, the importer told the Court of International Trade in a Jan. 24 brief. Responding to CBP's remand results in which it took another look at its initial finding of evasion under the Enforce and Protect Act, Leco said its lack of access to confidential information and the withholding of information not entitled to confidentiality at the administrative level "clearly risked erroneous deviation of Leco's private interests," the brief said. An administrative protective order issued during EAPA investigations would end this concern, the importer told the trade court (Leco Supply v. U.S., CIT #21-00136).

The trade provisions of the America COMPETES Act of 2022, the House's answer to the Senate U.S. Innovation and Opportunity Act, proposes some dramatic changes to antidumping and countervailing laws. The ADD/CVD section draws on a bipartisan bill from the Senate led by Ohio's two senators, but co-sponsored by Sen. Todd Young, R-Ind. Young will be a major player on the conference committee, so that suggests that the ADD/CVD changes could well end up in the final package.