Jacob Kopnick

A Commerce Department determination to apply adverse facts available to Thai pipe exporter Saha Thai Steel Pipe Public Company in an antidumping administrative review and spurn the company's sales and cost databases based on a notice of investigation in an evasion case is "egregious," Saha Thai said in a June 15 motion for judgment in the Court of International Trade. Saha Thai expressed particular concern over Commerce's decision to include the company's U.S. sales of dual-certified pipe in its calculation of the antidumping duty margin since it had already been determined that a scope ruling on dual-certified pipe did not apply to entries covered by the 2018-19 administrative review (Saha Thai Steel Pipe Public Company Limited v. U.S., CIT #21-00049).

A recent U.S. Court of Appeals for the Federal Circuit decision finding that antidumping duty countrywide rates in non-market economies can still be based on adverse facts available even if no respondents were uncooperative in an administrative review (see 2106100044) will be considered in a Court of International Trade case on the Commerce Department's AFA policy, according to a June 14 notice of supplemental authority from the Department of Justice. The Federal Circuit decision in China Manufacturers Alliance, LLC v. United States "substantially overlaps" with a CIT case over Commerce's NME policy brought by Jilin Forest Industry Jinqiao Flooring Group Co., DOJ said (Jilin Forest Industry Jinqiao Flooring Group Co., Ltd., v. United States, CIT #18-00191).

President Donald Trump properly eliminated a tariff exemption for bifacial solar panels since a majority of the representatives of the domestic industry, by volume, filed a petition to remove the exemption, the Department of Justice said in a June 11 brief in the Court of International Trade. Responding to arguments from the Solar Energy Industries Association, the Justice Department contested the trade group's assertion that the withdrawal of the exemption was merely based on a "head count" (Solar Energy Industries Association et al. v. United States, CIT #20-03941).

The Court of International Trade sustained the final results of the second administrative review of the antidumping duty order on steel nails from Oman, in a June 14 decision. Judge Richard Eaton held that there was substantial evidence to back the Commerce Department's decision to use a Japanese company's financial statement to determine constructed value profit and indirect selling expenses for mandatory respondent Oman Fasteners, as opposed to an Indian company's financial statement as favored by petitioner and plaintiff in the case, Mid Continent Steel & Wire.

The Commerce Department will reconsider its decision to reallocate the cost of production for antidumping administrative review respondent Nexteel Co.'s non-prime products to account for their losses when calculating constructed value, the Court of International Trade said in a June 7 ruling made public on June 15. Issuing her second remand in the case brought from steel producers Husteel Co. and Nexteel over the 2016-17 AD administrative review of welded line pipe from Korea, Judge Claire Kelly sustained all other determinations made by Commerce.

CBP was wrong to exclude certain motor frame assemblies from entry to the U.S. as "drug paraphernalia" since the goods, which will be used to make a marijuana processing machine, are legal in the states of Washington and Nevada, importer Eteros Technologies USA said in a June 11 complaint in the Court of International Trade. Eteros claims that there is an exemption to the law that bans the import of drug paraphernalia when a person who is allowed by local, state or federal law to "manufacture, possess or distribute 'drug paraphernalia.'" CBP has consistently failed to recognize this exemption, Eteros said (Eteros Technologies USA, Inc. v. United States, CIT #21-00287).

The Commerce Department continues to hold that the South Korean government did not provide a countervailable subsidy to producers of hot-rolled steel through cheap electricity and that the agency came to this conclusion in a legal way, despite a decision by the U.S. Court of Appeals for the Federal Circuit to the contrary. In June 10 remand results in the Court of International Trade, Commerce explained why the Federal Circuit was mistaken in its ruling and why it used the appropriate methodology in determining that no benefit was conferred between the Korean government and producers POSCO and Hyundai Steel (POSCO v. United States, CIT #16-00227).

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

The Court of International Trade should stay liquidation of PrimeSource Building Products' imports of steel "derivatives" and reinstate the requirement of PrimeSource to monitor future derivative imports and maintain a sufficient continuous bond, pending an appeal of the steel derivative decision, the Department of Justice said in a June 9 filing.

The Court of International Trade found again that President Donald Trump violated procedural time limits when expanding Section 232 tariffs to steel and aluminum “derivatives,” in a June 10 decision. Citing CIT's prior case on the topic, PrimeSource Building Products Inc. v. United States (see 2104050049), Judges Jennifer Choe-Groves and Timothy Stanceu awarded refunds for tariffs paid to steel fastener importers Oman Fasteners, Huttig Building Products and Huttig Inc. In Oman Fasteners, LLC. et al. v. United States, the court ruled that the president illegally announced the tariff expansion after the 105-day deadline laid out by Section 232, but denied the plaintiff's other two claims, without prejudice, on the procedural violations of the tariff expansion. The panel's third member, Judge Miller Baker, concurred in part and dissented in part.