Chinese exporter Yinfeng ripped the Commerce Department's decision to apply adverse facts available relating to the agency's inability to verify non-use of China's Export Buyer's Credit Program, in a motion for judgment at the Court of International Trade. Commerce's use of AFA for the EBCP has been shot down repeatedly at CIT, yet the practice continues, Yinfeng said (Fujian Yinfeng Imp & Exp Trading Co., Ltd. v. United States, CIT #21-0088).

Five steel companies filed an amicus brief at the U.S. Court of Appeals for the Federal Circuit in support of a full court rehearing in a critical case on presidential power regarding the Section 232 steel and aluminum tariffs. The brief, filed Sept. 7 by Oman Fasteners, Huttig Building Products, Koki Holdings America, J. Conrad and Metropolitan Staple, was accepted by the appellate court Sept. 9. The five companies tap into the dissenting opinion at the Federal Circuit along with the Court of International Trade's original ruling to make the case that the appellate court erred in finding that the president could hike the Section 232 duties on Turkish goods well beyond procedural time limits (Transpacific Steel LLC, et al. v. United States, Fed. Cir. #20-2157).

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

The U.S. Court of Appeals for the Federal Circuit filed its mandates on Sept. 9 in two nearly identical Court of International Trade cases, following a decision from the appellate court two months earlier. In the case, the Federal Circuit upheld CIT's denial of CSC Sugar's challenge to a 2020 amendment to an antidumping suspension agreement on sugar from Mexico, in a July 19 ruling (see 2107190038) (CSC Sugar LLC v. United States, CIT #16-00016 and #20-00017).

Kumho Tire (Vietnam) Co. filed a complaint with the Court of International Trade challenging the Commerce Department's finding that a countervailable subsidy existed in the form of Vietnam's currency manipulation practices (Kumho Tire (Vietnam) Co., Ltd. v. United States, CIT #21-00397). KTV was a respondent in the CVD investigation of passenger vehicle and light truck tires from Vietnam. In Commerce's final determination, KTV got hit with a 7.89% subsidy rate. In the complaint, KTV challenged three parts of this final determination, which include the finding that KTV got a countervailable benefit through its land-use rights, "even though Plaintiff’s acquisition of such rights pre-dated Vietnam’s accession to the World Trade Organization," through Vietnam's currency practices and through Vietnam's import-duty exemptions program for imported inputs used in exported products

Plaintiff Nucor Corp. ignored the "thorough explanation" that the Commerce Department gave in its remand results showing how the agency conducted its less-than-adequate remuneration (LTAR) analysis regarding the electricity market in South Korea, the U.S. said in a Sept. 7 reply brief. Further backing its remand at the Court of International Trade, the Department of Justice argued that Commerce's remand complies with the mandate issued by the U.S. Court of Appeals for the Federal Circuit by properly analyzing whether the Korean Electricity Corp. (KEPCO) recovered its costs of production plus a profit (POSCO, et al. v. United States, CIT #17-00137).

SMA Surfaces, Inc., formerly known as Polarstone US, and Cheng Shin Rubber Ind. Co. each filed a complaint at the Court of International Trade challenging two different scope rulings on antidumping and countervailing duty orders. SMA challenged the Commerce Department's decision to not exclude three specific surface products from the AD/CVD orders on quartz surface products from China, while Cheng Shin appealed Commerce's decision to not exclude the company's light-truck spare tire models from the less-than-fair-value investigation into passenger vehicle and light truck tires from Taiwan (SMA Surfaces, Inc. (F/K/A Polarstone US) v. U.S., CIT #21-00399) (Cheng Shin Rubber Ind. Co. Ltd. v. U.S., CIT #21-00398).

The Commerce Department dropped a particular market situation adjustment from a sales-below-cost test in an antidumping duty investigation, in its remand results filed at the Court of International Trade, concurrent with a court decision instructing it to do so. The agency maintains that a PMS existed for South Korean steel inputs but concedes that the court's interpretation of the law does not permit an adjustment to the cost of production for the PMS in the sales-below-cost test. The remand rate dropped for mandatory respondent Hyundai Steel Co. from 30.85% to 12.92% and for non-examined respondent SeAH Steel Corp. from 19.28% to 9.99% (Hyundai Steel Co. v. United States, CIT Consol. #18-00154).

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

The U.S. Court of Appeals for the Federal Circuit issued a mandate Sept. 7 in a case in which it dismissed the proceedings due to a lack of jurisdiction. In its July 14 opinion, the Federal Circuit said that the Court of International Trade was correct in dismissing an importer's challenge of CBP's assessment of antidumping and countervailing duties (see 2107140028). The plaintiff, TR International Trading Co., erred when it filed its case under the trade court's Section 1581(i) "residual" jurisdiction, since it could have challenged a denied protest under Section 1581(a) or a scope ruling under Section 1581(c), rendering Section 1581(i) unavailable, the appellate court said. In particular, TRI challenged CBP's finding that the company's citric acid imports from India were of Chinese origin and subject to AD/CV duties (TR International Trading Company, Inc. v. United States, CIT #19-00022). CAFC ordered TRI to pay court costs totaling $28.32 to the U.S. government.