Jane A. Restani

The case concerned ICON EV LLC's challenge to interim measures imposed by U.S. Customs and Border Protection under the Enforce and Protect Act (EAPA) on grounds that the measures violated the company's Fifth Amendment due process rights by being applied without pre-deprivation notice or a meaningful opportunity to respond. ICON sought review under 28 U.S.C. § 1581(i), while the government moved to dismiss for lack of subject matter jurisdiction. The court denied the motion, holding that it possessed jurisdiction because ICON alleged imminent irreparable harm from the interim measures that could not be adequately remedied through the delayed EAPA final determination and appeal process. The court reasoned that ICON was not attempting to circumvent the statutory review scheme but was instead raising a constitutional claim regarding the adequacy of procedures for interim actions that risked putting the company out of business before any final evasion determination.

business & regulatoryprocedurecivil rights

The case involved a challenge by Toyo Kohan Co., Ltd. to the U.S. Department of Commerce's final results in an antidumping duty administrative review covering diffusion-annealed, nickel-plated flat-rolled steel products from Japan for the period May 1, 2022, through April 30, 2023. Commerce had selected the shipment date as the date of sale for U.S. sales and applied a differential pricing analysis that included the Cohen's d test to determine whether to use an average-to-transaction comparison method. Following an earlier remand from the court directing reevaluation of these choices, Commerce revised its date of sale approach and replaced the Cohen's d test with a new price difference test. The court sustained Commerce's remand redetermination, finding it supported by substantial evidence and consistent with the applicable statute.

business & regulatory

The case concerned ICON EV LLC's challenge to interim measures imposed by U.S. Customs and Border Protection under the Enforce and Protect Act during an ongoing investigation into alleged evasion of antidumping and countervailing duties on low-speed personal transportation vehicles imported from China. ICON argued that the measures, which included requirements for live entry and high bonding, were imposed without prior notice or an opportunity to be heard, violating its Fifth Amendment due process rights. The court granted ICON's motion for a preliminary injunction, enjoining enforcement of most interim measures until a pre-deprivation hearing could be held, while permitting suspension and extension of liquidation for certain entries. The court found it likely had subject matter jurisdiction and that the injunction factors weighed in ICON's favor due to the potential for irreparable harm and the equities involved.

business & regulatoryprocedurefederal power

This case involved the proper tariff classification under the Harmonized Tariff Schedule of the United States for imported weekly and monthly planners by Blue Sky the Color of Imagination, LLC. The importer sought classification as calendars under HTSUS heading 4910, while Customs and the government maintained that the items fell under subheading 4820.10.40 as other articles similar to diaries or notebooks. After prior proceedings, including a reversal by the Federal Circuit clarifying that diaries must be prospective only per Mead Corp. v. United States, the Court of International Trade denied the plaintiff's motion for summary judgment and granted the government's cross-motion. The court reasoned that the planners do not qualify as calendars, diaries, address books, or similar items because they lack provisions for recording past events and thus must be classified as other under 4820.10.40. Judgment was entered accordingly in favor of the United States.

business & regulatory

The case involved a challenge by POSCO and the Government of Korea to the U.S. Department of Commerce's final results in a countervailing duty administrative review of carbon and alloy steel cut-to-length plate from Korea for 2021, in which Commerce found that Korea's provision of electricity for less than adequate remuneration and its allocation of extra emissions permits under the K-ETS program constituted countervailable subsidies. Following an initial remand, the court reviewed Commerce's redetermination addressing issues of specificity for the electricity program, whether the extra permits constituted a financial contribution, and whether their allocation was de jure specific. The court sustained Commerce's conclusions that the allocation of permits was a direct transfer of funds and that the electricity program was not de facto specific, but remanded for further analysis of the de facto specificity of the emissions permit allocation under the applicable statutory criteria.

business & regulatoryenvironment

The case concerned whether Export Packers Company Limited’s individually quick frozen cooked garlic cloves were covered by the U.S. Department of Commerce’s 1994 antidumping duty order on fresh garlic from China. Commerce initially ruled the product fell within the order’s scope, but after the court remanded for further consideration, Commerce determined on remand that the garlic was excluded because it had undergone heat processing. The court sustained Commerce’s remand redetermination, finding it consistent with the order’s plain language excluding garlic prepared or preserved by the addition of heat processing and supported by substantial evidence on the record.

business & regulatory

In Pipe & Piling Supplies v. United States, the plaintiff sought judicial review of a U.S. Department of Commerce final determination on Large Diameter Welded Pipe from Canada under 28 U.S.C. § 1581(c), but the court had previously dismissed the action for lack of subject matter jurisdiction. The plaintiff moved for an injunction pending appeal to bar liquidation of specified entries during the appeal period. The court granted the motion after weighing the four-factor test for injunctive relief, concluding that liquidation would cause irreparable harm by mooting the appeal even though success on the merits appeared unlikely, the government consented, and no party claimed harm from the injunction. The order suspends liquidation of the relevant entries produced or exported by the plaintiff and entered between May 1, 2022, and April 30, 2023, pending final resolution including appeals.

business & regulatoryprocedure

The case concerns the U.S. Department of Commerce's countervailing duty administrative review of phosphate fertilizers from Russia for the period November 2020 to December 2021, specifically its assessment of whether Russian government provisions of phosphate rock mining rights and natural gas to producer JSC Apatit amounted to countervailable subsidies. After an initial remand, Commerce issued a redetermination using tier-three benchmarks for both inputs. The court sustained Commerce's natural gas benchmark, which rejected Kazakh export prices as incomparable due to differences in gas quality and processing and instead applied regional OECD prices. The court remanded the phosphate rock benchmark for further reconsideration to ensure it properly reflects prevailing market conditions under the applicable regulations.

business & regulatoryprocedure

This case from the U.S. Court of International Trade concerns the Department of Commerce's redetermination on remand in a new shipper review of antidumping duties on certain frozen fish fillets from Vietnam. Commerce found that exporter Co May's sale was not bona fide after addressing issues of cash deposits and affiliations in profitability analysis as directed in the prior opinion. Plaintiffs, U.S. catfish producers, and the government both agreed that the results complied with the court's remand order. The court upheld the redetermination, concluding it was supported by substantial evidence and in accordance with law under 19 U.S.C. § 1516a(b)(1)(B)(i).

business & regulatory

This case involves importers of record who paid tariffs imposed under executive orders pursuant to the International Emergency Economic Powers Act (IEEPA) and who sought a preliminary injunction to suspend liquidation of affected entries while related litigation proceeded. The court denied the motion for a preliminary injunction and denied as moot the related request for a hearing. The core reasoning was that plaintiffs could not show irreparable harm because the court has jurisdiction under 28 U.S.C. § 1581(i) to order reliquidation and refunds if the tariffs are ultimately invalidated, the government has taken the position that liquidation will not bar such relief, and any contrary future position would be subject to judicial estoppel. The opinion notes that Customs performs only a ministerial role in collecting the duties and lacks authority to decide their legality or constitutionality.

business & regulatoryfederal powertaxes

This case concerned Toyo Kohan Co., Ltd.'s challenge to the U.S. Department of Commerce's final results in an antidumping duty administrative review of diffusion-annealed, nickel-plated flat-rolled steel products from Japan covering May 2022 to April 2023. Toyo Kohan contested Commerce's choice of the shipment date as the date of sale for U.S. market sales and its use of the Cohen’s d test in the differential pricing analysis to calculate the weighted-average dumping margin. The United States Court of International Trade remanded the final results to Commerce for reconsideration of both issues. The court determined that Commerce had inconsistently applied the shipment date rather than the invoice date referenced in its preliminary analysis, and that application of the Cohen’s d test must be reevaluated in light of the Federal Circuit's decision in Marmen, as any prior administrative challenge would have been futile.

business & regulatory

The case concerned whether Elysium Tiles' composite tile products fell within the scope of antidumping and countervailing duty orders issued by the U.S. Department of Commerce on ceramic tile from China. Commerce initially ruled that the products were covered, but after two court remands requiring analysis under the five factors in 19 C.F.R. § 351.225(k)(2)(i), its final redetermination concluded that the composite tile was not covered. The court sustained Commerce's determination, reasoning that differences in physical characteristics and purchaser expectations outweighed similarities in ultimate use, channels of trade, and advertising/display. The court found Commerce's application of the regulatory factors supported by the record evidence.

business & regulatory

The case involved Pipe & Piling Supplies challenging the U.S. Department of Commerce's final results in an antidumping duty administrative review of large diameter welded pipe from Canada for 2022-2023, which set the company's duty rate at 50.89 percent. The plaintiff filed its action in the Court of International Trade 27 days after the results were published but without first notifying other interested parties of its intent to seek judicial review. The court dismissed the case for lack of subject matter jurisdiction, holding that the 20-day notice requirement under 19 U.S.C. § 1516a(g)(3)(B), implementing the USMCA, is a jurisdictional prerequisite rather than a non-jurisdictional procedural rule. The reasoning emphasized the statute's text, its purpose in enabling binational panel review under the trade agreement, and the need to respect U.S. international commitments to Canada and Mexico.

business & regulatoryprocedurefederal power

This case involved challenges by two Chinese companies to the Department of Commerce's final results in administrative reviews of antidumping and countervailing duty orders on wood moulding and millwork products from China. Commerce had assigned China Cornici the China-wide rate in both reviews and rescinded the countervailing duty review for RaoPing because the companies lacked suspended entries due to mislabeling of shipments, which led Customs to liquidate entries without deposits. Commerce also denied RaoPing's request to extend its separate antidumping rate of zero to entries made by a Taiwanese reseller. The court remanded the determinations to Commerce, finding that the agency's decisions to rescind reviews and deny the separate rate were unsupported by substantial evidence or not in accordance with law, including its own regulations on separate rates for resellers and the handling of entry errors under relevant statutes.

business & regulatory

The case involved plaintiff Brandon Chen appealing the U.S. Customs and Border Protection's denial of his customs broker's license after he scored below the required 75% on the April 2022 Customs Broker License Exam, challenging the scoring of several questions. The Court of International Trade reviewed whether Customs' decisions on the contested questions were supported by substantial evidence and whether the denial was arbitrary or capricious. The court granted Chen's motion for summary judgment, concluding that he should receive credit for at least one additional question, which would bring his score to a passing level, and remanded the matter to Customs for implementation.

business & regulatoryprocedurefederal power

The case concerned POSCO's challenge to the Department of Commerce's countervailing duty determination on steel plate imports from Korea, where Commerce found that subsidized electricity and excess carbon emission permits under Korea's Cap and Trade Law constituted countervailable subsidies. The court partially sustained and partially remanded the determination, upholding some findings but requiring reconsideration of the specificity of the electricity program, the classification of extra permits as a financial contribution, and the specificity of the permit allocation. The core reasoning was that certain Commerce conclusions lacked substantial evidence or failed to align with the statutory definitions of specificity and financial contributions in countervailing duty law.

business & regulatoryenvironment

In this case, plaintiff Axle of Dearborn challenged executive orders rescinding the de minimis exemption for goods imported from China, arguing that the President lacked authority under the International Emergency Economic Powers Act to reduce the statutory $800 threshold or to do so without notice-and-comment rulemaking. The court denied the motion for a preliminary injunction and stayed the case pending final resolution of the related V.O.S. Selections litigation. It reasoned that the injunction already issued in V.O.S.—though currently stayed by the Federal Circuit—encompassed the same relief sought here, rendering any additional order redundant and providing no material benefit to the plaintiff.

business & regulatoryfederal powerprocedure

In Toyo Kohan Co., Ltd. v. United States, the plaintiff challenged the Department of Commerce's final results in an antidumping duty administrative review of diffusion-annealed nickel-plate flat-rolled steel from Japan and moved to amend its complaint to add a claim based on a new Federal Circuit ruling. The proposed amendment argued that Commerce unreasonably applied the Cohen’s d test to sales data that did not meet the test's assumptions of normality and equal variances. The government opposed the amendment on grounds that the argument had not been raised before the agency and would cause delay. The court granted the motion, holding that the intervening Marmen decision represented a fundamental shift in controlling law that excused exhaustion and that justice required allowing the amendment.

business & regulatoryprocedure

The case involved the U.S. government seeking to recover approximately $100,700 in unpaid antidumping duties and interest from Aegis Security Insurance Company under a customs bond posted for an entry of honey imported in 2003. Aegis moved for summary judgment, arguing the claim was untimely. The court granted Aegis's motion and denied the government's cross-motion, holding that the six-year statute of limitations under 28 U.S.C. § 2415(a) barred the action. The court reasoned that the cause of action accrued at the time of the entry's deemed liquidation in March 2009, so the limitations period expired in 2015, well before the suit was filed in 2022; it also noted Customs' unreasonable delay in making a demand on the bond.

business & regulatoryprocedure

The case involves U.S. catfish processors challenging the U.S. Department of Commerce's determination in a new shipper review that a single sale of frozen fish fillets from Vietnam by exporter Co May was bona fide, under an existing antidumping duty order. The Court of International Trade sustained parts of Commerce's final results but remanded for further consideration of the profitability analysis in assessing whether the sale was bona fide. Specifically, the court reasoned that Commerce should have examined the affiliation between the U.S. importer and its downstream customers when evaluating resale profitability, and that there was substantial evidence suggesting such affiliation existed. The remand requires Commerce to reconsider and explain its analysis regarding antidumping duty expenses and sales between likely affiliated parties.

business & regulatory