In a July 21 opinion made public July 25, the Court of International Trade remanded the Commerce Department’s administrative review of antidumping duty and countervailing duty orders on Chinese-origin aluminum foil, saying that the department had to reconsider or explain why it refused the review’s exporters a double remedies offset. It said the relevant law requires the department to calculate a subsidy's price impact based on what the price might have been without the subsidy, not on whether prices declined during the review period.
The U.S. Court of Appeals for the Federal Circuit on July 28 sustained the Commerce Department's non-market economy policy in antidumping duty proceedings despite the fact that the agency hadn't codified the policy in its regulations at the time the underlying review was challenged. Judges Todd Hughes, William Bryson and Leonard Stark said the Federal Circuit has a long line of cases upholding the policy and that, even if those cases didn't exist, Commerce didn't need to engage in notice-and-comment rulemaking to implement the policy.
The U.S. Court of Appeals for the Federal Circuit on July 28 upheld the validity of the Commerce Department's non-market economy policy in antidumping proceedings despite the fact that Commerce had not codified the policy in its regulations at the time the policy was challenged. Judges Todd Hughes, William Bryson and Leonard Stark said there's a long line of CAFC cases finding that Commerce can lawfully assign an NME-wide AD rate to a cooperative mandatory respondent that has failed to rebut the presumption of foreign state control. In addition, the judges said even if these cases didn't exist, the policy didn't require notice-and-comment rulemaking, since the validity of an "evidentiary presumption turns on its rationality." The judges then held that there's "a sound and rational connection between a finding that a country is an NME country and the inference that exporters in that country are subject to government control."
In a July 21 opinion made public July 25, Court of International Trade Judge Claire Kelly ruled that, when deciding to impose a double remedies offset in an antidumping duty review with a parallel countervailing duty review, the Commerce Department must calculate whether a countervailable subsidy would have decreased a non-market economy exporter’s prices and dumping margin, not whether the exporter’s prices actually declined during a review period. However, she sustained the department’s choice of Romania as a surrogate in AD/CVD reviews of aluminum foil from China (Jiangsu Dingsheng New Materials Joint-Stock Co. v. U.S., CIT # 23-00264).
The Court of International Trade in a confidential July 21 decision remanded the Commerce Department's final results in the 2021-22 administrative review of the antidumping duty order on aluminum foil from China. Judge Claire Kelly said she intends to issue a public version of the decision on or shortly after July 25. The case was brought by various exporters to challenge Commerce's primary surrogate country choice of Romania in the review, along with the agency's selection of specific surrogate value data for various inputs (Jiangsu Dingsheng New Materials Joint-Stock Co. v. U.S., CIT # 23-00264).
The U.S. Court of Appeals for the Federal Circuit on July 17 issued its mandate in an antidumping duty case following its decision to deny exporter Carbon Activated's bid for a panel rehearing of the court's decision. In its decision, CAFC Judges Richard Taranto, Alvin Schall and Raymond Chen upheld the Commerce Department's selection of the surrogate value for carbonized material in the 2018-19 review of the AD order on Chinese activated carbon (see 2505090048) (Carbon Activated Tianjin v. United States, Fed. Cir. # 23-2135).
The U.S. Court of Appeals for the Federal Circuit on July 10 denied exporter Carbon Activated's bid for a panel rehearing of its antidumping duty case on the Commerce Department's selection of the surrogate value for carbonized material in the 2018-19 review of the AD order on Chinese activated carbon. Judges Richard Taranto, Alvin Schall and Raymond Chen denied the request (Carbon Activated Tianjin v. United States, Fed. Cir. # 23-2135).
After the Commerce Department chose on remand to again directly value antidumping duty review mandatory respondent Neimenggu Fufeng Biotechnologies’ energy costs in an AD administrative review, the exporter said June 20 in response that the department just “recycled” its initial results (Neimenggu Fufeng Biotechnologies Co. v. United States, CIT # 23-00068).
The U.S. Court of Appeals for the Federal Circuit on June 30 issued its mandate in an appeal related to the 2019-20 review of the antidumping duty order on activated carbon from China. The court issued its decision in the case concurrently with a decision on the 2018-19 review of the same order, though appellants in the 2018-19 review case recently filed a motion for reconsideration regarding alleged legal errors committed by the court during its review (see 2506250040). No such motion for reconsideration was filed in the appeal on the 2019-20 review, which concerned respondent Carbon Activated Tianjin's challenge to the Commerce Department's use of Malaysian import data under Harmonized Tariff Schedule subheading 4402.90.1000, which covers coconut-shell charcoal, as the surrogate value for coal-based carbonized material, an input of activated carbon, among other issues (see 2505090048) (Carbon Activated Tianjin Co. v. United States, Fed. Cir. # 23-2413).
Respondent Carbon Activated Tianjin asked the U.S. Court of Appeals for the Federal Circuit on June 23 to rehear its antidumping duty case, arguing that a three-judge panel committed "legal error" by affirming the Commerce Department's selection of the surrogate value for carbonized material. Carbon Activated said the panel also erred in "misapprehending key distinctions between the administrative record" of the 2018-19 AD review on Chinese activated carbon and the records of prior reviews (Carbon Activated Tianjin v. United States, Fed. Cir. # 23-2135).