Jacob Kopnick

The Commerce Department violated the law by hitting consolidated antidumping duty respondents Apiario Diamante Comercial Esportadora and Apiario Diamante Producao e Comercial de Mel (collectively Supermel) with total adverse facts available, the respondent argued in a July 27 complaint at the Court of International Trade. Commerce unlawfully used unaffiliated beekeepers to verify Supermel's data, despite the fact that Supermel was the mandatory respondent and not the beekeepers, the complaint said (Apiario Diamante Comercial Exportadora Ltda. v. United States, CIT #22-00185).

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

Byungmin Chae, who is contesting results of his customs broker license exam, filed his informal reply brief July 25 at the U.S. Court of Appeals for the Federal Circuit. The Court of International Trade had dismissed five exam questions Chae appealed (see 2206060055). At the trade court, Judge Timothy Reif said CBP was right to dismiss Chae's appeal of four of the questions but said the agency wrongly denied the test taker's appeal for the fifth question. The reversal of the remaining question wasn't sufficient for a passing grade because Chae was two questions shy of the 75% threshold needed to pass the test. In his informal reply brief to the Federal Circuit, Chae said he is appealing only three questions from the April 2018 customs broker license exam (Byungmin Chae v. Secretary of the Treasury, CIT #20-00316).

The Commerce Department's finding that the South Korean government does not subsidize the Korean steel industry through the sale of electricity below cost was illegal and gives foreign governments full control to cross-subsidize various industries, plaintiff Nucor Corp. argued in a July 26 brief at the Court of International Trade. Commerce has failed to lay out a legal or methodological justification for treating the "government price" as the revenues earned by the Korea Electric Power Corporation (KEPCO) on all sales to all firms, the brief said. By doing so, the agency did not look at the price actually paid by the respondent, meaning it has failed to assess whether a benefit was conferred, Nucor argued (Nucor Corporation v. United States, CIT #22-00050).

The country of origin of certain surgical gowns imported by Global Resources International and Santé USA is the Dominican Republic and not the U.S. for the purposes of government procurement, CBP said in a final determination. Since the most important assembly or manufacturing processes in the production of the gowns took place in the Dominican Republic and not the U.S., the country of origin is the Dominican Republic, CBP said. The agency then directed the importers to consult with the relevant government procuring agency to find whether the gowns qualify as "U.S.-made end products" for the Federal Acquisition Regulation.

The U.S. Court of Appeals for the Federal Circuit in a July 22 notice modified its internal operating procedures concerning petitions for en banc rehearings. The stylistic update says that if at any time before a rehearing vote takes place, a majority of the panel that issued the decision in question wishes to make major substantive changes to a decision or give further consideration to the petition, the panel will inform the en banc court that the panel wants to take the petition back for further action. "Upon such notice, any pending poll will be withdrawn," the new rule said. "The panel shall expeditiously inform the full court of any such action on the petition, and if the panel grants less than all of the relief requested, any judge may request a response to the petition for rehearing en banc or a poll within 10 business days of the panel’s notification to the full court."

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

Eastern Pacific Chartering (22) (EPC22), a Singapore shipping company, alleged in a July 21 complaint at the U.S. District Court for the District of Delaware that Louis Dreyfus Company Freight Asia (LDCFA), a subsidiary of a Dutch merchant firm, violated its contract by damaging cargo. The suit would send LDCFA a nearly $3 million bill for breach of contract and cost of attorneys and related fees for an arbitration proceeding in London that kicked off due to the damaged cargo. ECP22 alleges that LDCFA's faulty stowage plan soiled the goods (Eastern Pacific Chartering (22) v. Louis Dreyfus Company Freight Asia, D. Del. #22-00958).

CBP's findings in its Enforce and Protect Act investigation on wooden cabinets and vanities from China were arbitrary and an abuse of discretion, Skyview Cabinet said in a July 18 motion for summary judgment at the Court of International Trade. "Simply put, CBP failed in its investigation duty, believing that it was confronted with evidence of basic transshipments,” Skyview said (Skyview Cabinet USA v. United States, CIT #22-00080).

The Court of International Trade should circumvent the remand process and order the Commerce Department to grant exclusions to Section 232 steel and aluminum duties, steel company NLMK Pennsylvania argued in a July 22 brief. Likening its experience with the exclusion process at Commerce to "a bad remake of Groundhog Day," the plaintiff argued that Commerce has repeatedly ignored the record evidence which plainly shows that the U.S. companies do not have the capacity to fill NLMK's requests (NLMK Pennsylvania v. United States, CIT #21-00507).