CIT Upholds Commerce's Decision to Prorate Exporter's CVD Rate on China's EBCP

The Court of International Trade on June 12 sustained the Commerce Department's remand results in the countervailing duty investigation on wooden cabinets and vanities from China. Judge Richard Eaton said Commerce complied with his remand instructions by prorating the countervailing duty set on exporter The Ancientree Cabinet to account for the percentage of its U.S. customers that failed to verify nonuse of China's Export Buyer's Credit Program. As a result, Commerce lowered Ancientree's CVD cash deposit rate from 13.33% to 5.06% and calculated individual CVD rates for the exporter's U.S. buyers, though the agency said the cash deposit rate has been superseded by the cash deposit rate given to Ancientree based on the 2022 review of the CVD order.

CIT Says CBP Waited Too Long to Demand Duty Payment From Surety

The Court of International Trade on June 11 said CBP waited too long to demand payment on unpaid antidumping duties from surety company Aegis Security Insurance. Judge Jane Restani held both that CBP violated the implied condition of reasonableness in customs bonds in waiting eight years to demand payment and that the agency violated the six-year statute of limitations in which the government can demand payment. Restani became the third CIT judge to rule on the issue of whether CBP can demand payment from surety companies years after the underlying entry was liquidated, siding with one of her colleagues in finding that the statute of limitations runs from the date of liquidation and not the date CBP demands payment.

CAFC Keeps IEEPA Tariffs in Place During Appeal

The U.S. Court of Appeals for the Federal Circuit on June 10 stayed the Court of International Trade's permanent injunction on all of President Donald Trump's executive orders implementing tariffs under the International Emergency Economic Powers Act pending the appeal of the case. In a per curium order, all CAFC judges in regular active service said "a stay is warranted under the circumstances." In addition, the court said all active judges will hear the case, as opposed to the court's traditional three-judge panel approach, in light of the "issues of exceptional importance" presented by the matter.

CIT Sends Back Commerce's Exclusion of Exporter's Spare Tires From AD Order

The Court of International Trade on June 9 sent back a Commerce Department scope ruling excluding exporter Cheng Shin Rubber Industry's temporary-use spare tires from the antidumping duty order on passenger vehicles and light truck tires from Taiwan. Judge Jennifer Choe-Groves said Commerce improperly added a requirement that subject tires be for "regular use" in a vehicle, noting that the agency's interpretation doesn't appear in the "statutory language" and is undercut by the "terms of the Order itself." The judge said there's evidence showing Cheng Shin's tires "are of a size that fit passenger cars," which falls under the plain meaning of the order's scope.

CAFC Says Commerce Improperly Elevated 'Transparency' in AD Model Match Methodology

The U.S. Court of Appeals for the Federal Circuit on June 5 sent back the Commerce Department's 2018-19 antidumping review of Italian pasta, finding that the agency improperly prioritized "transparency" and "consistency" over the physical differences between pasta sold in the U.S. and Italy. Given that protein content was used to distinguish premium and standard pasta for U.S. and like product comparison purposes, Judges Alan Lourie, Alvin Schall and Kara Stoll faulted Commerce for failing to account for FDA rounding requirements for the protein content listed on the label of U.S.-sold pasta and the "different nitrogen-to-protein conversion factors used in calculating protein content in the United States versus Italy." However, the court said exporter La Molisana didn't provide sufficient evidence to challenge Commerce's use of a 12.5% protein content breakpoint in distinguishing between standard and premium pasta.

CIT Upholds Negative Determination in AD Investigation on Indian Shelving Units

The Court of International Trade on June 3 sustained the Commerce Department's negative final determination in the antidumping duty investigation on bootless steel shelving units prepackaged for sale from India. Judge Mark Barnett upheld Commerce's use of financial statements from Indian producer TMTE Metal Tech to determine constructed value, rejecting claims from petitioner Edsal Manufacturing that the agency improperly accepted untimely information from respondent Triune Technofab about the public availability of the TMTE data and that the TMTE statements weren't publicly available. Barnett also rejected Edsal's claim that Commerce erroneously treated statements from Indian producer Mekins Industries as per se invalid due to the presence of countervailable subsidies.

Commerce Didn't Need to Broaden AFA Based on Small Errors, CIT Says

The Commerce Department wasn't required to broaden its use of adverse facts available based on small reporting errors from the respondent, the Court of International Trade held on June 2. During verification conducted on remand in the antidumping duty investigation on Indian steel fluid end blocks, Commerce found two errors from respondent Bharat Forge: its reported content of molybdenum, a steel input, for one steel grade and its failure to report "parts" costs for two control numbers. Judge Stephen Vaden rejected the petitioners' claims that these errors indicate broader reliability concerns in Bharat's data, finding that Commerce had no need to "apply a broader adverse inference," since the errors were small.

DC Court Stays Ruling That IEEPA Doesn't Provide for Tariffs, Pending Appeal

The District Court for the District of Columbia on June 3 stayed its decision finding that the International Economic Emergency Powers Act doesn't confer tariff-setting authority and declaring that all tariff action taken under IEEPA is illegal. Judge Rudolph Contreras suspended his preliminary injunction on the collection of the tariffs from the plaintiffs, two small importers, as well as the "accompanying memorandum opinion," which said IEEPA doesn't provide for tariffs. The ruling is stayed pending the government's appeal of the decision to the U.S. Court of Appeals for the D.C. Circuit. The judge said a stay is "appropriate to protect the President’s ability to identify and respond to threats to the U.S. economy and national security."

California Court Dismisses IEEPA Tariff Case, Says CIT Has Exclusive Jurisdiction

The District Court for Northern California on June 3 dismissed California's challenge to tariff action taken under the International Emergency Economic Powers Act, finding that the Court of International Trade has exclusive jurisdiction to hear the matter under Section 1581(i), which says only CIT will hear cases arising out of U.S. laws providing for tariffs. Judge Jacqueline Scott Corley said President Donald Trump's executive orders implementing the tariffs are laws of the U.S. for purposes of Section 1581(i), since they modify the Harmonized Tariff Schedule, and the law implementing the HTS, Section 3004, says presidential action modifying the HTS is part of the HTS. Scott then dismissed the case instead of transferring, per California's request, to let the state appeal the decision.

CAFC Stays CIT Order Axing Trump Tariffs Pending Consideration of Emergency Stay Motion

The U.S. Court of Appeals for the Federal Circuit on May 29 stayed the Court of International Trade's decision to vacate all trade action taken by President Donald Trump under the International Emergency and Economic Powers Act while the appellate court considers the government's emergency stay motion of the trade court's ruling. Yesterday, the trade court vacated all of Trump's executive orders imposing the reciprocal tariffs and tariffs on China, Canada and Mexico to combat the flow of fentanyl. The U.S. immediately filled for a stay of the decision at CIT and the Federal Circuit, arguing that such a ruling would "hamstring" U.S. foreign policy.

DC Court Says IEEPA Doesn't Include Tariff Power

The District Court for the District of Columbia struck down all tariff action taken under the International Emergency Economic Powers Act a day after the Court of International Trade did the same. However, Judge Rudolph Contreras went farther than the trade court, holding on May 29 that IEEPA categorically doesn't include the power to impose tariffs.

The judge denied the government's motion to transfer the suit to CIT, declaring the reciprocal tariffs and tariffs on China, Canada and Mexico to be "unlawful," though he didn't vacate the executive orders imposing those tariffs in their entirety, as did CIT.

The judge also preliminarily enjoined the collection of the tariffs, but only from the plaintiffs in the case, two small importers. He stayed the injunction for 14 days to give the government a chance to appeal to the U.S. Court of Appeals for the D.C. Circuit. Contreras' decision sets up a split on whether CIT has exclusive jurisdiction to hear IEEPA tariff cases and on whether IEEPA provides tariff-setting authority at all.

CBP Has 10 Days to Implement IEEPA Tariff Halt; Government Appeals

The government has 10 days to issue orders implementing the Court of International Trade’s May 28 permanent injunction shutting down International Emergency Economic Powers Act tariffs on China, Canada and Mexico, as well as the 10% and country-specific IEEPA reciprocal tariffs, according to a judgment issued by the court alongside its opinion. The government has already filed an appeal of the decision.

CIT Permanently Enjoins All Trump Tariffs Imposed Under IEEPA

The Court of International Trade on May 28 vacated President Donald Trump's reciprocal tariffs and tariffs on China, Canada and Mexico, all of which were issued under the International Emergency Economic Powers Act. The court held that the retaliatory tariffs "exceed any authority granted to the President by IEEPA to regulate importation by means of tariffs" and that the tariffs on China, Canada and Mexico "fail because they do not deal with the threats set forth in those orders." Judges Gary Katzmann, Jane Restani and Timothy Reif permanently enjoined the tariffs, declaring that if the tariffs are "unlawful as to Plaintiff they are unlawful as to all."

CIT Says CBP Didn't Need to Make Covered Merch Referral in AD Evasion Case

The Court of International Trade upheld CBP's finding that importer Vanguard Trading evaded the antidumping duty order on Chinese quartz countertops, in a decision made public May 27. Judge Timothy Reif held that CBP wasn't required to make a covered merchandise referral to the Commerce Department under the statute, since CBP determined under its own authority that Vanguard's goods were covered products. Reif also said CBP wasn't required to stay the evasion proceeding after Vanguard filed a formal scope inquiry, noting that such a position would let an importer unilaterally achieve a "pause" in an evasion proceeding by filing a separate scope request with Commerce -- a position that is "plainly contrary" to the evasion statute's "legislative history." Reif then concluded that the evasion determination wasn't arbitrary or capricious.

CIT Dismisses Wisconsin Man's Suit Against Presidential Tariff Action for Lack of Standing

The Court of International Trade on May 23 dismissed Wisconsin man Gary Barnes' lawsuit challenging the president's ability to impose tariffs for lack of standing. Judge Jennifer Choe-Groves said that Barnes, who alleged harm as a retiree on a fixed income concerned about higher prices and unconstitutional action, failed to allege harm that is "particularized" or "actual or imminent." The judge also affirmed the trade court's exclusive jurisdiction to hear the case and related cases challenging trade action imposed under the International Emergency Economic Powers Act.

CIT Sends Back Duty Drawback Adjustment in AD Investigation for 3rd Time

The Court of International Trade on May 21 remanded the Commerce Department's second remand results in a case on the antidumping duty investigation on common alloy aluminum sheet from Turkey. Judge Gary Katzmann held that Commerce unlawfully failed to respond to an objection from the petitioner, the Aluminum Association Common Alloy Aluminum Sheet Trade Enforcement Working Group, that one of respondent Assan Aluminyum's submissions to the agency on remand contained new information that didn't rebut, clarify or correct information submitted in the petitioner's rebuttal regarding Assan's duty drawback adjustment. Katzmann also held that Commerce unlawfully failed to respond to the petitioner's objection to the agency's reliance on "unverified information" in two of Assan's submissions on remand.

Florida Court Sends IEEPA Tariffs Case to CIT

The District Court for Northern Florida on May 20 transferred a case challenging tariffs imposed under the International Emergency Economic Powers Act to the Court of International Trade. Judge T. Kent Wetherell said Yoshida International v. U.S. controls the question of whether IEEPA allows for the imposition of tariffs. In that case, an appellate court said the Trading With the Enemy Act, IEEPA's predecessor, includes the power to impose tariffs, since the power to "regulate" necessarily includes the power to impose duties. Wetherell said he sees "no reason why" the Yoshida court's reasoning "would not apply to IEEPA because the operative language of IEEPA is identical to the operative language in TWEA." However, the judge said his holding shouldn't affect the merits of the case, adding that it will be up to the trade court to determine what effect the "jurisdictional determination that IEEPA" provides for tariffs "impacts the merits of Plaintiffs' claims."

CIT Sends Back Circumvention Finding on Vietnamese Solar Cells

The Court of International Trade on May 19 sent back the Commerce Department's finding that solar cells from Vietnam circumvented the antidumping and countervailing duty orders on solar cells from China. Judge M. Miller Baker said that Commerce "arbitrarily treated its adverse facts available finding" on one of the mandatory respondents "as the administrative equivalent of landing on 'Go to Jail'" for the unexamined companies. The agency still has to address every statutory circumvention factor and balance them, the judge said. However, Baker upheld the ability of Commerce to extend the AFA determination to the cooperating unexamined companies, since the agency did so on the basis that the uncooperating party accounted for a "significant volume of Vietnamese solar cells."

CIT Sustains AD/CVD Circumvention Findings on 3 Solar Cell Exporters

The Court of International Trade on May 16 issued a pair of decisions sustaining the Commerce Department's circumvention determinations on solar cells made by Trina Solar Science & Technology, Canadian Solar International and BYD. On the findings that Trina and Canadian Solar circumvented the AD/CVD orders on Chinese solar cells via Thailand, Judge M. Miller Baker said Commerce permissibly placed dispositive weight on the amount invested into research and development in the companies' Thailand facilities to show that the operations in these facilities were "minor or insignificant." Baker also sustained the agency's finding that BYD circumvented the orders via Cambodia, similarly upholding Commerce's reliance on the level of R&D into BYD's Cambodia facilities.

Trade Court Says Product 'Imported' for Drawback Purposes When Admitted to FTZ

The Court of International Trade on May 15 held that a product is "imported" for duty drawback purposes when it's admitted into a foreign trade zone and not when entered for domestic consumption. Judge Timothy Reif said the definition of "importation" found in both the dictionary and Supreme Court rulings distinguishes "importation" and "entry." The judge added that when Congress passed the current drawback statute, it specifically decided the five-year period to make a drawback claim runs from the date of importation and not the date of entry. As a result, the court dismissed importer King Maker Marketing's case challenging CBP's rejection of its substitution unused merchandise drawback claims for being untimely.

CAFC Sustains 2 AD Reviews on Activated Carbon

The U.S. Court of Appeals for the Federal Circuit on May 9 issued a pair of decisions sustaining the Commerce Department's 2018-19 and 2019-20 reviews of the antidumping duty order on activated carbon from China. In the 2018-19 review, Judges Richard Taranto, Alvin Schall and Raymond Chen upheld Commerce's surrogate value pick for coal-based carbonized material, an input of activated carbon. In the 2019-20 review, the judges upheld the agency's pick of Malaysia as the primary surrogate country and the surrogate value selections for carbonized material, coal tar, hydrochloric acid, steam and ocean freight.

CAFC Says Frozen Fruit Mixtures Properly Fit Under HTS Heading 0811

The U.S. Court of Appeals for the Federal Circuit on May 9 upheld the Court of International Trade's classification of 14 types of frozen fruit mixtures under Harmonized Tariff Schedule subheading 0811.90.80, which covers "other" frozen fruit. Judges Todd Hughes, Leonard Stark and Robert Schroeder, sitting by designation from a Texas court, held that nine types of mixtures that contain fruits and vegetables properly fit under heading 0811 pursuant to GRI 3(b), which considers which component of a mixture gives it its "essential character," since the mixtures' fruit gave the product its essential character. The appeals court said subheading 0811.90.80 was proper to cover all 14 mixture types, though it disagreed with the trade court that "other" means "none of the above," writing instead that it means "none of the preceding categories."

CIT Says CBP Can't Unilaterally Reliquidate Entries Liquidated in Violation of Court Order

The Court of International Trade on May 8 held that CBP can't unilaterally reliquidate entries erroneously liquidated in violation of a suspension order from the court. Judge Gary Katzmann said CBP can't avoid the court's role in disturbing the finality of liquidation and ordering equitable relief. The judge went on to deny this equitable relief to the government, which inadvertently liquidated 174 entries of solar panels without applicable Section 201 safeguard duties. Katzmann declined to extend such relief to CBP on the basis that the agency inflicted the harm itself and failed to show it was adequately diligent in preventing the error.

CIT Upholds Forged Steel Fittings Exporter's Reported Costs in AD Case

The Court of International Trade on May 6 sustained the Commerce Department's antidumping duty investigation on forged steel fittings from India. After two remands for Commerce's decision to use a questionnaire in lieu of onsite verification, the agency conducted an in-person verification of respondent Shakti Forge Industries' facilities in India. Judge Stephen Vaden declared the procedural claims "vanquished," then sustained the agency's reliance on Shakti's reported costs. The judge noted that Commerce didn't find a "single inaccuracy" in the respondent's reporting and reasonably accepted the exporter's explanation of its finishing processes to be reasonable.

CIT Upholds Parts, Remands Parts of CVD Review of Russian Phosphate Fertilizers

The Court of International Trade on May 6 upheld parts and sent back parts of the Commerce Department's 2020-21 review of the countervailing duty order on phosphate fertilizer from Russia. Judge Jane Restani remanded Commerce's benchmark calculations for the provision of phosphate rock mining rights for less than adequate remuneration and natural gas for LTAR programs. The judge said Commerce improperly excluded data on phosphate rock taken from sedimentary reserves and erred in using sales of natural gas from Kazakhstan to Russia. However, Restani sustained the use of data only from 2021 to calculate the mining rights subsidy, calculation of respondent JSC Apatit's phosphate rock cost of sales plus profit, and use of adverse facts available to find that Apatit's natural gas suppliers were government authorities.

Trade Court Says Fish Oil Ethyl Ester Concentrates Are 'Extracts of Fish'

Fish oil ethyl ester concentrates imported by BASF are "extracts of fish" under Harmonized Tariff Schedule heading 1603 and not food preparations under heading 2106, the Court of International Trade held on May 2. Judge Joseph Laroski said the concentrates are extracts of fish oil, since they maintain many key characteristics of the fish oil, and that fish oil is fish for purposes of the HTS heading. In granting BASF its preferred HTS classification, Laroski sidestepped the issue of whether the U.S. could seek a classification different from the one chosen by CBP through a counterclaim at the trade court.

Importer's Catalyst Blocks Filters, Not 'Other' Catalytic Reactors

The Court of International Trade ruled April 29 that importer Mitsubishi Power Americas’ catalyst blocks, which chemically convert nitrous oxide from industrial pollutant emitters into nitrogen and water, were filters, not “other” catalytic reactors. It acknowledged that Mitsubishi had defined a Section 301 exclusion for “other” catalytic reactors based on the products, but said the importer had been on notice that its products might not be covered by the language of the exclusion because the language of the exclusions themselves, not product descriptions contained in the exclusion requests, define what's subject to the exclusions (Mitsubishi Power Americas v. United States, CIT # 21-00573).

CAFC Sustains Denial of Separate AD Rate Applications for 3 Chinese Tire Exporters

The U.S. Court of Appeals for the Federal Circuit in a pair of decisions on April 28 upheld the Commerce Department's separate antidumping duty rate decisions in the 2012-13 and 2014-15 reviews of the AD order on new pneumatic off-the-road tires. Judges Richard Taranto, Raymond Clevenger and Todd Hughes held that the companies' claims regarding whether Commerce could "deem decisive an exporter’s failure to establish lack of state control of management selection," without more proof of state control over export activities, were precluded by the court's recent decision in Pirelli Tyre Co. v. U.S. In Pirelli, the court directly answered this question and said the agency could consider state control of management selection without tying it to export activities. The judges then turned to the record and said Commerce's decision to reject the separate rate bids for all three companies was backed by substantial evidence.

Montana Court Sends IEEPA Case to CIT

The District Court for the District of Montana on April 25 transferred a case challenging tariff action taken under the International Emergency Economic Powers Act to the Court of International Trade. Judge Dana Christensen rested the decision on two prior cases that found challenges to tariff action taken under the Trading With the Enemy Act, IEEPA's predecessor, to belong in the U.S. Customs Court, the trade court's predecessor. While the plaintiffs said IEEPA has more restricted authority than TWEA, the judge said IEEPA has the "same operative language" as TWEA. The court said the plaintiffs failed to show how the "limits placed on the IEEPA’s grant of authority affect" CIT's jurisdiction. The plaintiffs, four members of the Blackfeet Nation tribe, have already filed a notice of appeal, declaring that they will take the matter to the U.S. Court of Appeals for the Ninth Circuit.

CIT Upholds AFA for Glycine Exporter's Failure to Prove It's Not Affiliated With 2 Companies

The Court of International Trade on April 23 denied exporter Kumar Industries' challenge to the 2021-22 review of the antidumping duty order on glycine from China, India and Japan. Judge Gary Katzmann said the Commerce Department reasonably used adverse facts available against Kumar for its failure to respond to the best of its ability in establishing that it's not affiliated with two unnamed companies. The judge also sustained Commerce's decision to deduct antidumping and countervailing duties from Kumar's U.S. price for only three transactions, given evidence showing that Kumar didn't include AD/CVD for these sales.

12 US States Challenge All IEEPA Tariffs at Trade Court

Twelve U.S. states, led by Oregon, filed a lawsuit at the Court of International Trade challenging President Donald Trump's ability to impose tariffs using the International Emergency Economic Powers Act. The complaint contests all of Trump's tariff orders issued under IEEPA as a violation of both the statutory authority conveyed by IEEPA and the Constitution's principle of separation of powers. The suit, filed by Oregon Attorney General Dan Rayfield, also challenges CBP's series of Cargo Systems Messaging Service notices implementing the tariffs under the Administrative Procedure Act.

The 12 states are Oregon, Arizona, Colorado, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New Mexico, New York and Vermont.

CAFC Again Rejects Use of 'd' Test to Detect Targeted Dumping

The U.S. Court of Appeals for the Federal Circuit on April 23 again rejected the Commerce Department's use of the Cohen's d test to detect targeted dumping in the second decision on the issue in as many days. The court said it's bound by yesterday's decision rejecting the test for not adhering to basic statistical assumptions. Writing individually, Judge Leonard Stark suggested he may have been compelled to reach a different position on the use of the test as "one step" in Commerce's "three-step differential pricing analysis" if it weren't for the court's recent decision.

CIT Denies Motion for Emergency Block on Reciprocal Tariffs

The Court of International Trade denied a motion from five importers to put an emergency block on President Donald Trump’s reciprocal tariffs, in an order issued late on April 22. CIT Judges Jane Restani, Gary Katzmann and Timothy Reif ruled the five importers haven’t shown that “immediate and irreparable harm” would result from not issuing a temporary restraining order while the court considers the importers’ request for a longer-lasting preliminary injunction.

The U.S. had argued there was no harm because none of the five importers have actually paid the tariffs yet or had plans to pay any tariffs in the next 14 days, which is the maximum period for a temporary restraining order.

Jiaxing Hoshine Has Constitutional, Statutory Standing to Challenge Issuance of WRO, CIT Says

The Court of International Trade in a decision made public April 22 said Hoshine Silicon (Jia Xing) Industry Co. has constitutional and statutory standing to challenge CBP's issuance of and refusal to modify a withhold release order on its parent company, Hoshine Silicon, and its subsidiaries. However, Judge Claire Kelly dismissed Jiaxing Hoshine's challenge to the issuance of the WRO for untimeliness, since it was brought after the statute of limitations had run.

CIT Remands Scope Ruling That Found Paint Nozzles Weren't Manifold Heat Sinks

The Court of International Trade on April 21 remanded a Commerce Department scope ruling that found a paint sprayer nozzle importer’s products weren’t heat sinks and thus weren't exempt from antidumping duty orders on aluminum extrusions from China. The department “added a new requirement” to the five-factor test identifying heat sinks, saying that an import can't be dual-purpose, CIT Judge Jennifer Choe-Groves said (Wagner Spray Tech Corp. v. U.S., CIT # 23-00241).

CIT Judge Dismisses Burmese Mattress Importer's Case for Failure to Establish Standing

Court of International Trade Judge Timothy Reif on April 22 granted a motion to dismiss importer Pay Less’ challenge to the International Trade Commission’s affirmative critical circumstances finding regarding Burmese-origin mattresses. The importer never filed an entry of appearance in the underlying injury investigation, and it overall failed to clear the “low bar” required to establish itself as a party to the proceeding, he ruled (Pay Less Here v. U.S. International Trade Commission, CIT # 24-00152).

CAFC Rejects Commerce's Use of 'd' Test to Detect Masked Dumping

The U.S. Court of Appeals for the Federal Circuit on April 22 held that the Commerce Department may not use the Cohen's d test to detect targeted dumping where the "underlying data is not normally distributed, equally variable, and equally and sufficiently numerous." Judges Sharon Prost, Richard Taranto and Raymond Chen said it's "unreasonable" for Commerce to use the d test on data sets that don't satisfy the statistical assumptions, adding that the agency's argument that the assumptions need not apply when using the test on the entire population of data as opposed to just samples "strains credulity." Remanding the antidumping duty investigation of utility-scale wind towers from Canada, the Federal Circuit also sent back Commerce's rejection of respondent Marmen's supplemental cost-reconciliation item meant to correct certain purchase information that hadn't been properly converted from U.S. dollars to Canadian dollars. However, the court sustained Commerce's decision to weight-average Marmen's reported steel plate costs.

CIT Finds Sink Components Added, Finishing Work Done in Taiwan Not Part of Dutiable Value

The Court of International Trade ruled April 21 almost completely in favor of sink importer R.H. Peterson, finding that most of the disputed components for, and all of the value added to, the importer’s sinks shouldn’t have been included in the sinks’ dutiable value. Judge Jennifer Choe-Groves held that the U.S. was allowed in this instance to adopt a position contrary to CBP’s during the administrative proceeding. She also refused to award attorneys fees, saying the importer hadn’t provided an adequate explanation as to why the government’s litigation position had been unjustified (R.H. Peterson v. U.S., CIT # 20-00099).

CAFC Affirms Commerce's Adjustment of Wind Tower Exporter's Steel Plate Costs, Surrogate Selection

The U.S. Court of Appeals for the Federal Circuit ruled April 21 that the Commerce Department had been allowed to adjust wind tower exporter Dongkuk S&C Co.’s steel plate input costs, saying the department reasonably found price fluctuations unrelated to an input's physical characteristics. The court also upheld Commerce’s surrogate selection of SeAH Steel Holdings Corporation over SeAH Steel as reasonable because the former could offer data covering the entire period of investigation (Dongkuk S&C Co. v. United States, Fed. Cir. # 23-1419).

CAFC Says CIT Can't Reliquidate Finally Liquidated Entries Beyond Legal Exceptions

The U.S. Court of Appeals for the Federal Circuit on April 21 held to a strict interpretation of the principle of finality of liquidation, ruling that the Court of International Trade can't consider equitable reasons for ordering reliquidation of finally liquidated entries. Judges Richard Taranto and Raymond Chen said the trade court can't order reliquidation beyond the statutory exceptions, which specifically refer to filing a protest with CBP or a civil action at the trade court. Judge Jimmie Reyna dissented from the ruling, arguing that the majority misapprehends CBP's protest procedures and improperly limits "CIT’s authority to enforce its judgments to a level that is inferior" to the full authority of an Article III court.

CIT Partly Grants Vehicle Accessories Importers' Motion for Reconsideration

The Court of International Trade partly granted vehicle accessories importer Keystone Automotive Operations’ request for reconsideration of an Oct. 7 decision. CIT Judge Jennifer Choe-Groves said she had conducted a “traditional eo nomine versus principal use analysis” in her decision, but that Keystone had actually argued that the United States Trade Representative had outlined a “new legal standard” for applying the relevant Section 301 tariff exclusion (Keystone Automotive Operations v. United States, CIT # 21-00215).

CIT Upholds ITC's Preliminary Negative Injury Finding on Dominican Aluminum Extrusions

The Court of International Trade on April 18 sustained the International Trade Commission's preliminary negative injury determination on aluminum extrusions from the Dominican Republic. Judge Lisa Wang rejected all three of the petitioners' claims, which challenged the ITC's findings that subject imports were negligible, there was "no likelihood of contrary evidence to arise in the final phase which would warrant a non-negligibility determination," and imports from the Dominican Republic don't have the potential to exceed the negligibility threshold in the "imminent future."

CIT Sustains 1995-96 AD Investigation on Mexican Tomatoes

The Court of International Trade on April 17 sustained the Commerce Department's antidumping duty investigation on fresh tomatoes from Mexico, which was initially opened in 1996. After the agency calculated AD margins for the seven respondents from the original 1995-96 investigation period on remand, a group of intervenors, led by NS Brands, challenged Commerce's decision not to find a changed circumstance or initiate new shipper reviews for the intervenors. Judge Jennifer Choe-Groves dismissed the claims for lack of subject-matter jurisdiction, noting that they could have been brought under Section 1581(i), the court's "residual" jurisdiction, instead of under the plaintiffs' jurisdictional claim under Section 1581(c). The judge also found that the intervenors lacked standing to sue.

CIT Rejects Importer's Bid to Amend Complaint in Customs Suit on Pop-Up Tend Pods

The Court of International Trade on April 15 denied importer Under the Weather's motion for leave to amend its complaint to add a claim regarding CBP's prior tariff treatment of its imported pop-up tent "pods." Judge Timothy Reif said the proposed amended complaint "was filed after undue delay and is futile." The importer received duty-free treatment for the pods from 2010-18, but that ultimately ended in 2020 following an HQ ruling from CBP. The trade court previously rejected a claim from Under the Weather that CBP had to allow for a notice-and-comment period with the HQ ruling, since the agency previously accorded the pods a given tariff treatment. Under the Weather then tried to amend its complaint to newly cite two alleged examinations of the pods by CBP. Reif rejected the motion, finding that the importer waited too long to raise the issue and that the issue would be futile, since it "would not survive a motion to dismiss for failure to state a claim."

CIT Sustains Rejection of Mexico as Surrogate in Chlorinated Isos Review, Remands for Other Reasons

Court of International Trade Judge Timothy Reif sustained in part and remanded in part the Commerce Department’s final determination in its review of chlorinated isocyanurate from China. He affirmed the agency's consideration of Romania as a potential surrogate, saying that a delay in the submission of Romania as a surrogate hadn’t rendered that submission untimely. He also sustained Commerce’s usual practice with regard to surrogate selection, citing Loper Bright Enterprises v. Raimondo, and its decision to exclude Mexico as a potential surrogate. But he remanded Commerce's finding that calcium hypochlorite and sodium hypochlorite are “comparable” to chlorinated isos, saying clorinated isos aren’t “industrial commodity chemicals” (Bio-Lab v. U.S., CIT Consol. # 24-00024).

5 Importers Challenge Constitutionality of Reciprocal Tariffs at CIT

A group of five companies filed a complaint at the Court of International Trade challenging the president's authority to impose tariffs under the International Emergency Economic Powers Act. The complaint, drafted by the conservative Liberty Justice Center, says President Donald Trump's use of IEEPA to impose "reciprocal" tariffs "exceeds his statutory authority." The lawsuit adds that even if IEEPA grants this authority, it amounts to an "unconstitutional delegation of legislative authority." The lawsuit is the third of its kind to challenge the use of IEEPA to impose tariffs but is the first to be filed at the trade court.

CIT Remands Exclusion of Calcium Glycinate From AD/CVD Orders on Glycine

The Court of International Trade on April 10 sent back the Commerce Department's scope ruling excluding calcium glycinate from the scope of the antidumping duty orders on glycine from India, Japan and Thailand and the countervailing duty orders on glycine from India and China. Judge Joseph Laroski said Commerce acted "unreasonably" by failing to analyze whether the glycinate is a form of crude or technical glycine, notwithstanding the agency's finding that the glycinate is a precursor of dried crystaline glycine. Laroski also said the agency acted "unreasonably" in failing to consider information in the scope ruling application and an International Trade Commission report undermining its conclusion.

CIT Remands 2019, 2020 CVD Reviews of Chinese Wood Flooring

The Court of International Trade in a pair of decisions on April 3 remanded both the 2019 and 2020 reviews of the countervailing duty order on multilayered wood flooring from China. In both decisions, Judge Timothy Reif sent back the Commerce Department's use of UN Comtrade data in setting a benchmark price in assessing the provision of plywood for less than adequate remuneration and the agency's use of adverse facts available to find that certain input suppliers are government "authorities." On the second point, Reif said Commerce appropriately found that the Chinese government's submissions were insufficient but that the agency didn't give the Chinese government proper notice or opportunity to remedy these deficiencies. In the 2019 review, Reif also remanded Commerce's benchmark price for veeners, though the judge sustained the benchmark for inland freight and use of AFA to find use of China's Export Buyer's Credit Program.

CIT Sustains Parts, Remands Parts of CVD Review on Moroccan Phosphate Fertilizers

The Court of International Trade on April 1 sustained parts and remanded parts of the Commerce Department's 2020-21 review of the countervailing duty order on phosphate fertilizers from Morocco. Judge Timothy Stanceu rejected Commerce's finding that Morocco's program for relief from tax fines and penalties is specific to OCP. The judge sustained the remaining issues in the case, which included Commerce's decision not to find a benefit from the provision of mining rights by the Moroccan government, its decision not to countervail the provision of port services, its use of adverse facts available for respondent OCP's failure to report a payroll tax refund, and its ability to request information from OCP on unspecified "other benefits" it received.

CIT Remands Parts, Upholds Parts of 2017 CVD Review on Chinese Wood Flooring

The Court of International Trade upheld parts and sent back parts of the Commerce Department's 2017 review of the countervailing duty order on multilayered wood flooring from China.

Judge Timothy Reif remanded Commerce's use of only one mandatory respondent, the agency's decision to include data from Harmonized Schedule category 4412.99 in the benchmark calculation for the provision of plywood for less than adequate remuneration, and Commerce's calculation of the benchmark regarding the provision of veneers for LTAR.

Reif upheld Commerce's continued use of the individually calculated CVD rate for Jiangsu Guyu despite deselecting it as a mandatory respondent, as well as its finding of cross-ownership between Jiangsu Guyu's affiliates, inclusion of poplar core sheets in the provision of veneers for LTAR program, investigation of non-alleged subsidies, use of adverse facts available to make its specificity determination and benchmark calculation regarding the provision of electricity for LTAR, use of AFA to find that Jiangsu Guyu's poplar core sheet authorities are government "authorities," and use of AFA regarding China's Export Buyer's Credit Program.

CIT Sustains Parts, Remands Parts of CVD Review on Chinese Wood Flooring

The Court of International Trade on March 27 sustained in part and remanded in part the Commerce Department's 2018 review of the countervailing duty order on multilayered wood flooring from China. Judge Timothy Reif upheld Commerce's calculation of a benchmark price for plywood using a weighted average of U.N. Comtrade and International Tropical Timber Organization data, the agency's inclusion of respondents' backboard purchases in the calculation of a benefit from the provision of veneers for less than adequate remuneration, and Commerce's decision to add a 17% value-added tax rate to the benchmark price for various inputs. Reif also upheld the use of adverse facts available against respondent Baroque Timber's use of China's Export Buyer's Credit Program, though he granted the government's voluntary remand request to reconsider the use of such facts against respondent Jiangsu Senmao Bamboo Wood Industry Co., since the company submitted non-use certifications for all of its U.S. buyers.

CIT Says ITC Practice of Automatically Redacting Questionnaire Responses 'Unlawful'

The Court of International Trade on March 27 held that the International Trade Commission's "practice of automatically redacting questionnaire responses" in injury proceedings is "unlawful." Judge Stephen Vaden held that the practice is "inconsistent with statute, regulation, precedent, and common sense." The judge said the practice leads to treating "publicly available information as confidential," treating the same information inconsistently based only on how the ITC obtained it, and impermissibly designating information as confidential unilaterally. Vaden went through various information dubbed confidential in an injury proceeding on phosphate fertilizers from Morocco and Russia, finding that all but one piece of it was improperly redacted.

CIT Denies German Thermal Paper Exporter’s Motion to Dismiss U.S. Claim for Unpaid Duties

Court of International Trade Judge Gary Katzmann on March 27 denied a motion to dismiss a U.S. claim against German thermal paper exporter Koehler Oberkirch and its affiliate, Koehler Paper, for nearly $200 million in duties unpaid by the now-defunct Papierfabrik August Koehler. He said that the trade court has personal jurisdiction over the case because Koehler Oberkirch is the successor-in-interest of Papierfabrik August Koehler; meanwhile, Koehler Paper, due to the U.S. fraud allegation, is the successor-in-interest of Koehler Oberkirch (United States v. Koehler Oberkirch, CIT # 24-00014).

CIT Denies Speedy Case for Importer Challenging CBP 'Retaliation' Against Executives

The Court of International Trade on March 26 denied importer Eteros Technologies an expedited briefing schedule in its case alleging that CBP retaliated against the company's executives after the importer received a favorable ruling at the trade court. Judge Gary Katzmann said Eteros hasn't shown that "good cause" warrants a speedy resolution of the case. The judge held that the harms suffered by the plaintiffs as a result of CBP's actions "are not time-sensitive harms that will become irremediable in the near future," that the harms suffered are not "extraordinary" and that it's not clear that a speedy end of the case serves the public interest.

CIT Grants Voluntary Dismissal of Case Seeking Import Ban on International Fisheries

The Court of International Trade on March 25 granted three wildlife advocacy groups' voluntary dismissal of a case seeking to compel the Commerce, Treasury and Homeland Security departments to ban fish from fisheries in nine nations for failing to meet U.S. standards. The advocacy groups settled the matter with the agencies, laying out a four-phase plan that will see the National Marine Fisheries Service issue comparability findings for the fisheries (see 2501170058). Judge Gary Katzmann granted the dismissal, noting that the court retains jurisdiction to oversee compliance with the agreement.

CIT Sustains Decision Not to Investigate Provision of Off-Peak Electricity in South Korea

The Court of International Trade on March 21 sustained the Commerce Department's third remand results in the 2018 review of the countervailing duty order on carbon and alloy steel cut-to-length plate from South Korea. The agency had again refused to investigate the provision of off-peak electricity for less than adequate remuneration. Judge Mark Barnett said Commerce reasonably laid out the evidence that petitioner Nucor Corp. should have provided to "justify a new subsidy investigation of this subset of the broader electricity pricing scheme."

CIT Says CBP Not Entitled to Customs Inspection Fees When Customer Doesn't Travel to US

The Court of International Trade on March 18 held that CBP is not entitled to Customs Passenger Processing Fees paid by individual passengers who cancel their tickets and who never receive a refund or fail to use a travel credit. Judge Gary Katzmann sided with Southwest Airlines on the issue, first finding that CBP isn't entitled to the fee under the statute, 19 U.S.C. § 58c(a), where no passenger arrives in the U.S. and where the agency didn't provide any customs services. The judge also held that CBP's Guidance Letters on the topic can't usurp the statute and that Southwest doesn't hold the fees in a "constructive trust" for CBP, since the agency has "no equitable interest in a fee where no passenger travels."

CIT Again Remands Inclusion of Certain Composite Tile in Scope of AD/CVD Order on Ceramic Tile

The Court of International Trade on March 11 again sent back the Commerce Department's decision to include marble composite tile made by Elysium Tiles in the antidumping and countervailing duty orders on ceramic tile from China. Judge Jane Restani said "the scope language is not so clear that either party must prevail," finding both that Commerce didn't provide any (k)(1) sources to back its conclusion and that Elysium didn't sufficiently prove its composite tile is excluded from the orders as a ceramic tile.

CIT Sustains Use of Indian Surrogate Information in Vietnamese Fish Fillets Review

The Court of International Trade affirmed March 10 the Commerce Department’s decision to use India as a surrogate over Indonesia in an antidumping review of frozen fish fillets from Vietnam. It said the department acted reasonably in finding that the Indian data was overall better. Regarding labor costs, it “had to choose between two regulatory preferences,” one for using only one surrogate and one for contemporaneous information, and it was Commerce’s “prerogative” to choose the latter, the court said.

CIT Remands Parts, Sustains Parts of AD Review on Indonesian Mattresses

The Court of International Trade on March 7 remanded in part and sustained in part the Commerce Department's 2020-22 review of the antidumping duty order on mattresses from Indonesia. Judge Jennifer Choe-Groves said Commerce properly excluded various mattress models made by respondent PT Ecos Jaya Indonesia under the "multifunctional furniture" and "mattress topper" exclusions. However, the judge said substantial evidence didn't support the exclusion of five models of the respondent's products under the mattress topper exclusion, since there was no indication they were used on top of mattresses. Choe-Groves also agreed to the government's request for a voluntary remand to reconsider the calculation of constructed value profit, selling expenses and constructed export price ratios.

CIT Upholds Commerce's Choices in Teflon Case to Rely on Allocated Movement Costs, Not Grant CEP Offset

Court of International Trade Judge M. Miller Baker affirmed March 7 the Commerce Department’s decision on remand not to grant respondent Gujarat Fluorochemicals a constructed export price offset as part of an antidumping duty investigation into granular polytetrafluorethylene resin from India. The offset was originally intended to make up for the lack of data Commerce needed to adjust Gujarat’s home-market price for different levels of trade. Baker also affirmed Commerce’s choice to rely on Gujarat’s allocated movement expenses, agreeing it wasn’t feasible for the exporter to provide transaction-specific expenses.

CAFC Rules Steel Branch Outlets Subject to AD on Chinese Butt-Weld Pipe Fittings

The U.S. Court of Appeals for the Federal Circuit ruled March 6 that an importer’s steel branch outlets are covered by antidumping duties on butt-weld pipe fittings from China. Judge Timothy Dyk dissented. The case considered whether the Commerce Department had properly determined that the term “butt-weld” was ambiguous (Vandewater International v. U.S., Fed. Cir. # 23-1093).

CIT Sustains Commerce's Decision to Drop Rebar Exporter's AD Rate to Zero

The Court of International Trade on Feb. 28 sustained the Commerce Department's 2019-20 review of the antidumping duty order on steel concrete rebar from Mexico. Judge Stephen Vaden said Commerce complied with his previous remand order telling the agency to reopen the record and accept a submission from respondent Grupo Simec that it previously rejected for being untimely. On remand, Commerce dropped Grupo Simec's AD rate from 66.7% to zero percent and the rate for the non-individually examined companies from 33.35% to zero percent.

CAFC Upholds AD Evasion Finding on Xanthan Gum Importers

The U.S. Court of Appeals for the Federal Circuit on Feb. 27 sustained CBP's finding that importers Glob Energy Corp., Ascension Chemicals, UMD Solutions and Crude Chem Technology evaded the antidumping duty order on xanthan gum from China. Judges Kimberly Moore, Todd Hughes and Tiffany Cunningham rejected the importers' claim that CBP was required to refer the case to the Commerce Department to see if petitioner CP Kelco was still injured by oilfield xanthan gum imports, based on evidence purportedly showing the company no longer made oilfield xanthan gum. The judges also said CBP properly used adverse inferences against the claimed manufacturers of the merchandise. Lastly, the court said the Court of International Trade erred in finding it didn't have jurisdiction over entries erroneously liquidated by CBP, but the error was harmless given that the evasion finding was properly supported.

CIT Sustains Commerce's Scope Ruling Including Steel Blanks in AD Order on Roller Bearings

The Court of International Trade on Feb. 25 sustained the Commerce Department's inclusion of importer Precision Components' low-carbon steel blanks within the scope of the antidumping duty order on tapered roller bearings from China. Judge Joseph Laroski said Commerce reasonably determined that the products were already found to be in-scope merchandise in a 2020 scope ruling involving products from Precision. In its second scope ruling request, Precision said its products were "moved within the scope in" the previous scope ruling. The court said it was "more than reasonable for Commerce to rely upon Precision's own statements."

Cabinets Made From Phragmite Classified as Engineered Wood Products, CIT Rules

The Court of International Trade ruled Feb. 21 that exporter Nanjing Kaylang's phragmite cabinets fell under antidumping and countervailing duty orders on wood cabinets from China. CIT Judge Thomas Aquilino said the processing of phragmite was sufficiently similar to wood, and the term “engineered wood products” was ambiguous enough, for a Commerce Department scope ruling that reached the same result to be reasonable (Nanjing Kaylang Co. v. United States, CIT # 24-00045).

CIT Sustains Scope Ruling Including Wheels of Mixed-Origin Rims, Discs in AD/CVD Orders

The Court of International Trade in a pair of nearly-identical decisions sustained the Commerce Department's scope ruling that certain trailer wheels made by Asia Wheel Co. fall within the scope of the antidumping and countervailing duty orders on steel trailer wheels from China. The wheels are made in Thailand using discs from China and rims made in Thailand. Judge Gary Katzmann held that Commerce didn't unlawfully expand the scope of the orders, since the agency said when it imposed the orders that wheels made of mixed-origin rims and discs could be subject to a scope ruling in the future. The judge also held that Commerce's finding that Asia Wheel's products weren't "substantially transformed" in Thailand was properly supported.

CIT Sustains Exclusion of In-Transit Mattresses From CEP Calculation

The Court of International Trade on Feb. 18 sustained the Commerce Department's second remand results in a case on the antidumping duty investigation on mattresses from Indonesia. Judge Jennifer Choe-Groves upheld the agency's exclusion of in-transit mattresses from Indonesia in calculating constructed export price. The judge also upheld the agency's exclusion of respondent PT. Zinus Global Indonesia's parent company's selling expenses from the calculation of normal value (PT. Zinus Global Indonesia v. United States, CIT Consol. # 21-00277).

CIT Sends Back Wood Flooring AD Review Results for Third Time

Court of International Trade Judge Jennifer Choe-Groves again remanded the results of the Commerce Department's antidumping duty review of Chinese-origin multilayered wood flooring. Choe-Groves questioned whether the department’s decisions during the review were “results-driven or cherry-picking” because the department, instead of reopening the record to correct erroneous surrogate value information, still insisted on simply removing a month of bad data -- resulting in a surrogate value inflation of 453% (Jiangsu Senmao Bamboo and Wood Industry Co. v. U.S., CIT # 22-00190).

CAFC Upholds Rejection of Tire Exporter's Separate AD Rate Application

The U.S. Court of Appeals for the Federal Circuit on Feb. 11 sustained the Commerce Department's decision to reject exporter Pirelli Tyre Co.'s bid for a separate antidumping rate in the third review of the AD order on passenger vehicle and light truck tires from China. Judges Sharon Prost, Richard Taranto and Raymond Chen said that Commerce's third factor for assessing whether the foreign government has de facto control over the separate rate respondent, which addresses the selection of management, doesn't require a link to export activities. The judges also said Commerce properly requires the applicant to "carry a burden of persuasion to justify a separate rate."

CIT Sustains Commerce's Financial Statement Selection to Calculate CV

The Court of International Trade on Feb. 7 sustained the Commerce Department's use of San Shing Fastech Corp.'s financial statements to calculate the constructed value profit and indirect selling expenses for respondent Your Standing International in an antidumping duty review on steel nails from Taiwan. Judge Claire Kelly said Commerce reasonably supported its selection after considering that San Shing made comparable merchandise, had contemporaneous financial statements and made over 70% of its sales to markets outside the U.S. The judge also said that Your Standing failed to exhaust its administrative remedies when arguing that the respondent and San Shing lacked a similar customer base.

CIT Upholds Parts, Sends Back Parts of Expedited CVD Investigation on Canadian Lumber

The Court of International Trade in a decision made public Jan. 29 sustained in part and remanded in part the expedited countervailing duty investigation of softwood lumber products from Canada. Judge Mark Barnett sent back the Commerce Department's subsidy calculation for affiliated exporters Les Produits Forestiers D&G and Les Produits Forestiers Portbec, which the agency used to account for the differences in volumes of lumber the two companies bought from unaffiliated producers. Barnett then upheld Commerce's use of exporter Fontaine's FY 2015 tax returns to calculate the amount of the tax benefits received by the company -- a move no party contested.

CIT Upholds Decision to Treat Holding Company as Producer in AD Investigation

The Court of International Trade on Jan. 28 sustained the Commerce Department's second remand results in a case on the antidumping duty investigation on wind towers from Spain, in which the agency gave the collapsed entity of Siemens Gamesa and Windar a 28.55% AD rate. Judge Timothy Stanceu said Commerce reasonably found holding company Siemens Gamesa to be a "producer or exporter" and appropriately decided to collapse Siemens Gamesa, Windar and five of Windar's subsidiaries. The judge also upheld the agency's calculation of the collapsed entity's constructed export price.

Steel Exporter's AFA Rate for Missed Deadline Remanded by CIT

The Court of International Trade ordered Jan. 27 the remand of a circumvention inquiry in which an exporter, Hoa Phat Steel Pipe, failed to meet a deadline but still submitted all requested information before the opening of the first business day following that deadline. CIT Judge Timothy Reif found the Commerce Department’s rejection of that information, and subsequent assignment of adverse facts available to the exporter, was an abuse of discretion, specifically noting that Commerce itself had twice extended the deadline for its own determination (Hoa Phat Steel Pipe Co. v. United States, CIT # 23-00248).

CIT Sustains AD Rate Cut for Brazilian Honey Exporter

The Court of International Trade on Jan. 25 sustained the Commerce Department's decision to cut the antidumping duty rate for exporter Apiario Diamante Comercial Exportadora, known as Supermel, from 83.72% to 10.52% in the AD investigation on raw honey from Brazil. Judge Timothy Stanceu rejected a host of claims against the move from the petitioners, finding that Commerce adequately surveyed the record and said total adverse facts available wasn't warranted due to the reliability of Supermel's data. The petitioners failed to "perfect" their claims alleging deficiencies in the respondent's submissions, since "they make no attempt to show" how the deficiencies "affected the Department's margin calculation," the court said.

CIT Dismisses Majority of Importer's Claims Against Section 232 Exclusion Request Denials

The Court of International Trade on Jan. 22 largely dismissed importer Prysmian Cables and Systems USA's suit challenging the Commerce Department's denial of its Section 232 steel and aluminum tariff exclusion requests. Judge Stephen Vaden said the company's claims that Commerce failed to act since it didn't perform three required actions for each denial fall short, since the agency didn't fail to act. A denial isn't an "action unlawfully withheld or unreasonably delayed: It is a decision," the court said. The court also dismissed most of Prysmian's challenges to the denials as being arbitrary and capricious, finding them to have been brought beyond the applicable two-year statute of limitations for challenging Section 232 exclusion request denials.

CIT Upholds Decision Not to Countervail Debt-to-Equity Swaps

The Commerce Department appropriately declined to countervail three debt-to-equity swaps received by exporter KG Dongbu Steel in the 2019 CVD review of corrosion-resistant steel products from South Korea, the Court of International Trade held on Jan. 17. Judge Jennifer Choe-Groves said the evidence doesn't support a finding that the government pressured nongovernmental institutions to take part in the company's debt restructuring. The court also upheld Commerce's reconsideration of its calculation of the "uncreditworthy benchmark rate" and "unequityworthy discount rate," given that no party contested the marks.

CIT Upholds Specificity Finding on Korean Cap-and-Trade Program

The Court of International Trade in a pair of cases held that the Commerce Department permissibly found the full allotment of emissions credits under a Korean cap-and-trade program to be de jure specific. Judge M. Miller Baker sustained the 2019 countervailing duty review on cut-to-length carbon-quality steel plate from South Korea, finding that the criteria for the program's eligibility, which are international trade intensity and high production costs, are "neutral" and don't favor one enterprise or industry over another.

Trade Court Upholds Rejection of Exporters' CEP Offset Claims

The Court of International Trade on Jan. 15 sustained the Commerce Department's decision to deny exporters Hyundai Steel Co. and Husteel Co.'s constructed export price offsets in the 2019-20 review of the antidumping duty order on circular welded non-alloy steel pipe from South Korea. Judge Timothy Reif said that Commerce reasonably said a "per-unit analysis" was needed to properly assess whether the home market and CEP sales were made at a more advanced stage of distribution and that neither respondent submitted such an analysis. The judge also said Hyundai received adequate notice of any insufficiencies in its submissions.

CIT Upholds Commerce's Date of Sale, Differences-in-Merchandise Adjustment in AD Review

The Court of International Trade sustained the Commerce Department's use of exporter Kaptan Demir Celik Endustrisi ve Ticaret's invoice date as the date of sale as opposed to the contract date in the 2021-22 review of the antidumping duty order on steel concrete rebar from Turkey. Judge Jane Restani also upheld Commerce's differences-in-merchandise adjustment calculation, which accounted for inflation. The judge said the calculation wasn't "distortive" as Kaptan claimed, and, in fact, could have actually been distortive had it not accounted for inflation.

CIT Sustains AD Investigation on Chinese Refrigerant

The Court of International Trade in a decision made public Jan. 10 sustained the Commerce Department's antidumping duty investigation into pentafluoroethane (R-125) from China. Judge Richard Eaton said Commerce properly decided to use a direct valuation of an intermediate input of R-125 instead of using a valuation of the upstream raw materials. The judge also said the agency appropriately denied various byproduct offsets claimed by exporter Zhejiang Sanmei Chemical Ind. Co. and permissibly calculated the exporter's surrogate freight rate by taking a simple average of short- and long-haul Russian freight data.

CIT Remands Parts of CVD Investigation on Phosphate Fertilizers From Morocco

The Commerce Department remanded parts and sustained parts of the Commerce Department's countervailing duty investigation on phosphate fertilizers from Morocco. Judge Timothy Stanceu sent back Commerce's acceptance of respondent OCP's allocation of headquarters, support and debt costs in its cost of production for making phosphate rock after finding that the agency failed to address petitioner The Mosaic Co.'s proposed alternative methodology for allocating these costs. The judge also remanded Commerce's finding that a subsidy to OCP from a program for relief from tax finds and penalties was de facto specific, finding that the agency failed to show that the program isn't available to the entire economy. However, Stanceu rejected OCP's challenge to the calculation of a constructed profit rate for the exporter, since the company failed to raise the issue in its initial motion for judgment.

CIT Denies US' Bid for Default Judgment in Customs Penalty Suit

The Court of International Trade on Jan. 8 denied the government's motion for default judgment in a customs penalty suit on importer Rayson Global and its owner Doris Cheng. Judge Timothy Stanceu said the U.S. failed to provide facts to support its claim that the domestic value of the imported innersprings subject to the dispute amounted to $3,381,607.03. The judge said he couldn't reconcile the products' entered value of $945,922 with the government's alleged domestic value of the goods. The government sought a penalty, in the amount of $3,381,607.03, against Rayson and Cheng for allegedly falsely declaring the country of origin of innersprings from China.

CAFC Says 'Strong' Need Required for Commerce to Assign Drastically High AFA Rates

The U.S. Court of Appeals for the Federal Circuit held Jan. 7 that the Commerce Department can't significantly depart from accuracy when setting adverse facts available rates without showing a "particularly strong need to deter noncompliance." Rejecting the department's single-sentence justification for a 154.33% AFA AD rate, it said Commerce was required to look to record evidence and evaluate "common factors" such as intent, recidivism or unreasonable carelessness when setting an unusually high rate.

The holding responded to a petitioner's appeal of the Court of International Trade-ordered reversal of an AFA antidumping rate assigned to steel nail exporter Oman Fasteners. The exporter was hit with AFA rate because, facing issues with Commerce's electronic filing system, it submitted a response 16 minutes after its deadline. The appeals court also considered and rejected Oman Fastener's own challenge to one of the department's selected surrogates for the review.

CIT Sends Back Scope Referral Decision on Pipe Fittings

The Court of International Trade on Jan. 2 remanded the Commerce Department's finding in a covered merchandise referral excluding from the antidumping duty order on carbon steel butt-weld pipe fittings from China certain carbon steel butt-weld pipe fittings made using fittings from China that underwent subsequent production in Vietnam. Judge Jennifer Choe-Groves sent back Commerce's consideration of various (k)(1) sources, including the petition, declarations from domestic industry executives and a prior circumvention in which Commerce came to a contrary conclusion.