Each one of the Commerce Department's four findings challenged in a countervailing duty case challenge is legal and should be sustained, the U.S. argued in a Dec. 9 reply brief at the U.S. Court of Appeals for the Federal Circuit. The government claimed Commerce's decision not to rely on respondent Marmen Energie's auditor's adjustment was reasonable; the agency reasonably found the additional depreciation for various Class 1 assets conferred a countervailable benefit to Marmen; Commerce's calculation of Marmen's benefit for a tax credit program legally did not include the income tax effects of benefits under the program for past years; and the agency reasonably said that Quebec's on-the-job tax credit program is de facto specific (Quebec v. United States, Fed. Cir. #22-1807).
The use of adverse facts available in an antidumping duty investigation against one party based on data submitted by another party is illegal, Brazilian honey producer Supermel argued in a motion for judgment at the Court of International Trade. The Commerce Department did not have the legal authority to ask Supermel to verify its data against information submitted by an unaffiliated beekeeper, even though Supermel's data was "in fact, reliable and verified," the brief said (Apiario Diamente Comercial Exportadora v. United States, CIT #22-00185).
The Commerce Department’s recent preliminary determination that Southeast Asian solar cells and panels are circumventing antidumping and countervailing duties (see 2212020064) left several questions unanswered, and lawyers for the Solar Energy Industries Association hope the agency will clarify these issues as the case proceeds to its final determinations, they said during a webinar Dec. 13.
The Court of International Trade should reject a request to temporarily stay an order barring the import of certain fish taken from New Zealand's West Coast North Island multispecies set-net and trawl fisheries, plaintiffs Sea Shepherd New Zealand and Sea Shepherd Conservation Society argued in a Dec. 12 reply brief. Harms the New Zealand fisheries will purportedly suffer absent a stay are "short-lived, overstated, and speculative," the brief said, but "[m]ore importantly, they pale in comparison to the ongoing risk posed to the Maui dolphin from set net and trawl fisheries that operate within the dolphins' range" (Sea Shepherd New Zealand v. United States, CIT #20-00112).
The Court of International Trade dismissed a case seeking the release of goods excluded over forced labor concerns without plaintiff Virtus Nutrition's proposed condition that CBP allow the goods to be re-exported. Judge Timothy Reif said the temporary storage agreement under which the goods are currently being held does not give a basis to include the proposed stipulation. Virtus "retains recourse" to address its concern that CBP can seize the goods rather than allow their exportation, Reif said.
The U.S. Department of the Interior unreasonably delayed responding to a 2014 request to certify Mexico under the Pelly Amendments to the Fishermen's Protective Act of 1967 due to Mexico's failure to stop illegal fishing of and trade in endangered totoaba, an "imperiled fish," the Center for Biological Diversity, Animal Welfare Institute and Natural Resources Defense Council argued. In a suit filed Dec. 14 at the Court of International Trade, the conservation groups said the department and Interior Secretary Deb Haaland violated the Administrative Procedure Act by failing to respond to the petition, and said the killing of the totoaba is aiding in the "imminent extinction of the vaquita porpoise" (Center for Biological Diversity v. Deb Haaland, CIT #22-00339).
The following lawsuit was recently filed at the Court of International Trade:
The Court of International Trade in a Dec. 13 confidential opinion sustained the Commerce Department's remand results in a case concerning the antidumping duty investigation on fabricated structural steel from Mexico. After Judge Claire Kelly remanded the case, Commerce stuck by its methodology used to calculate profit for the constructed value of respondent Building Systems de Mexico, also dropping the use of adverse facts available for one unreportable sale (see 2207210034). The agency further used the date of substantial completion of a fabricated structural steel project as the date of sale rather than using the purchase order date or sales order acknowledgment date, and didn't exclude the operating results of the business unit in question from the calculation of the constructed export price profit rate. Kelly gave the parties until Dec. 20 to review the confidential information in the opinion with the hopes of releasing the public version of the opinion Dec. 21 (Building Systems de Mexico v. United States, CIT #20-00069).
The Commerce Department illegally used adverse facts available for exporter SeAH Steel Corp.'s alleged benefits under the Export-Import Bank of Korea's (KEXIM's) Performance Guarantee program, SeAH argued in a Dec. 13 complaint at the Court of International Trade. Commerce improperly based its decision on its treatment of information related to the performance guarantee program presented at verification as "new factual information," the brief said (SeAH Steel Corp. v. United States, CIT #22-00338).
The Commerce Department withdrew exporter Jiangsu Guyu International Trading Co. as a mandatory respondent in a countervailing duty administrative review on remand at the Court of International Trade after reviewing CBP data the agency used in its respondent selection process. After it was ordered by the trade court to look into very large entry volumes, Commerce accepted the explanation that these entries would take an unrealistic number of containers. Due to this, the agency dropped these entries from its respondent selection process and found that Jiangsu Guyu is no longer one of the two exporters that ship the most volume of the subject merchandise. The result, if sustained, would be a 6% decrease in the CVD rate for the non-selected companies (Jiangsu Senmao Bamboo and Wood Industry Co. v. United States, CIT Consol. #20-03885).