The Commerce Department wrongly granted a price adjustment used in two antidumping duty respondents' margins for differences in levels of trade (LOT) between the U.S. constructed export price (CEP) sales and sales made in the home market of South Korea, AD petitioner Wheatland Tube argued in a May 27 complaint at the Court of International Trade (Wheatland Tube v. United States, CIT #22-00160).

The Court of International Trade in a May 19 opinion made public May 27 again rejected the Commerce Department's use of adverse facts available over the subsidy rate for China's Export Buyer's Credit Program in a countervailing duty investigation. Judge Richard Eaton ruled that Commerce did not support its position that certain information was necessary to verify that CVD respondent Zhejiang Junyue Standard Part Co.'s U.S. customers used the program. The judge also ruled that the agency did not adequately explain its decision to triple the subsidy rate over the EBCP to account for Junyue and two of its affiliates.

The U.S. Court of Appeals for the Federal Circuit rejected South Korean steel exporter SeAH Steel Corp.'s bid for a panel rehearing on the appellate court's ruling that found that the Commerce Department's practice of capping freight revenue when calculating U.S. price was reasonable (Nexteel Co., Ltd. v. United States, CAFC # 21-1334).

Elisa Solomon appeared in a customs case representing the U.S. government, as lead attorney of record in the action brought by importer Mast Industries over the classification of ladies' knitted tops with a built-in shelf bra (see 2205020058). According to her LinkedIn page, Solomon joined DOJ in March after six and half years at Covington (Mast Industries v. U.S., CIT #04-00274).

The U.S. will appeal a March Court of International Trade case that found CBP can't pursue unpaid duties from identity theft victims due to the statute of limitations. Per the May 25 notice of appeal, DOJ is taking the case to the U.S. Court of Appeals for the Federal Circuit. The trade court opinion tossed a case brought by the U.S. seeking to collect over $5.7 million in unpaid duties from Katana Racing on 386 entries of passenger and light truck tires from China that Katana said were the result of identity theft (see 2203280047). The judge said Katana was allowed to revoke an earlier statute of limitations waiver and that without the waiver, any action by CBP is barred by the passage of time (United States v. Katana Racing d/b/a Wheel & Tire Distributors, CIT #19-00125).

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

The U.S. Court of Appeals for the Federal Circuit in a May 23 order denied antidumping duty petitioner Wheatland Tube's motion to continue the stay in the appeal and AD respondent Borusan Mannesmann Boru Sanayi ve Ticaret's motion for summary affirmance. The case concerns the Commerce Department's move to make a particular market situation adjustment to the sales-below-cost test in the administrative review of the AD order on circular welded pipes from Turkey (Borusan Mannesmann Boru Sanayi ve Ticaret A.S. v. Nucor Tubular Products Inc., United States, Fed. Cir. # 2021-2097, 2021-217)

Jacquelyn Traini, a lawyer listed as counsel for the U.S. in a key action over hefty Jones Act penalties, has withdrawn from the case and no longer will serve as counsel of record for the U.S. Copies of all pleadings will be sent instead to Assistant U.S. Attorney Siobhan McIntyre. The case was brought by two shipping companies contesting the over $25 million in Jones Act penalties for their shipments of fish from Alaska to the East Coast of the U.S. CBP said the two companies' seafood shipments from Alaska to the eastern U.S. via the Bayside, New Brunswick, Canada, port violate the Jones Act, which requires shipping between U.S. ports to be conducted by U.S.-flagged, -made and -owned ships. Kloosterboer International Forwarding and Alaska Reefer Management used a Canada-flagged ship (see 2109170048) (Kloosterboer International Forwarding v. U.S., D. Alaska #3:21-00198).

Korean steel producer Nexteel filed a complaint May 25 with the Court of International Trade over alleged errors in calculating antidumping duty rates during an administrative review on oil tubular goods from Korea. In it, Nexteel, a non-individually examined separate rate company, challenges the rate Commerce calculated for Hyundai Steel that resulted in a higher average rate assigned to Nexteel and the other 29 non-individually investigated respondents (Nexteel Co., Ltd v. United States, CIT No. 22-00140).

Plaintiffs in an antidumping duty case led by Ellwood City Forge failed to challenge the legality of the questionnaire in lieu of on-site verification due to COVID-19 travel restrictions until the case reached the Court of International Trade, highlighting their failure to exhaust administrative remedies, exporter Bharat Forge argued. In a reply brief filed May 20, the exporter said the issue was "ripe for consideration" during the AD case, "yet Plaintiffs inexplicably did not raise" it (Ellwood City Forge Company v. U.S., CIT Consol. #21-00007).