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.

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.

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).

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.

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.

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."

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."

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.

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.

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.

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.

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).

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.

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.

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."

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).

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.

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).

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).

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."

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.

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.

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.

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).

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.