While the companies found to have evaded antidumping and countervailing duties on hardwood plywood from China argue that the evasion investigation deprived them of their due process rights, this is not how Congress set up the evasion statute, the Department of Justice argued in a Dec. 10 brief. Opposing the plaintiffs, led by American Pacific Plywood, at the Court of International Trade, DOJ said that the Enforce and Protect Act does not require CBP to notify a party that it's under investigation nor give a company access to confidential information or an opportunity to be heard. DOJ also made the case to CIT that the facts back up its ultimate evasion finding (American Pacific Plywood, Inc. et al. v. United States, CIT Consol. #20-03914).
Court of International Trade activity
The Commerce Department and the International Trade Commission published the following Federal Register notices Dec. 13 on AD/CV duty proceedings:
The following lawsuits were recently filed at the Court of International Trade:
The Court of International Trade should not stay a case over the U.S.'s bid to collect antidumping duties on entries brought in between 2000 and 2001, the Department of Justice argued in a Dec. 10 brief. Though the defendant in the case, surety company American Home Assurance Company (AHAC), wants the case stayed until a resolution in a similar case, the U.S. argues that it will be harmed due to its ongoing discovery efforts in the AHAC action and that AHAC has failed to show any hardship. The U.S. also says the speculative nature of how the related case will affect the AHAC action does not warrant a stay (United States v. American Home Assurance Company, CIT #20-00175).
The Commerce Department's position that the provision of electricity for less than adequate remuneration is specific to solar cell producers is not backed by substantial evidence, countervailing duty review respondent Risen Energy Co. argued in a Dec. 1 reply brief at the Court of International Trade. The arguments that the government relies on misinterpret the evidence cited by Commerce and in fact affirm the minor role of China's National Development and Reform Commission -- the entity China used to establish the specificity of the alleged benefits, Risen argued (Risen Energy Co., Ltd., et al. v. United States, CIT Consol. #20-03912).
The Commerce Department can no longer make a particular market situation adjustment to an antidumping respondent's cost of production in a sales-below-cost test, the U.S. Court of Appeals for the Federal Circuit held in a Dec. 10 opinion. Cementing what the Court of International Trade has repeatedly held, a three-judge panel at the appellate court said that the statute -- in particular, a section of the 2015 Trade Preferences Extension Act -- does not permit such a PMS adjustment. Rather, the statute only allows a PMS adjustment for constructed value, the Federal Circuit said.
The Court of International Trade remanded on Dec. 13 the Commerce Department's final results in the antidumping duty investigation of utility scale wind towers from South Korea. Judge Leo Gordon held that Commerce didn't group the different towers' control numbers together by any of the required 11 physical characteristics or use the characteristics as a "guidepost." Instead, the agency adjusted the towers' costs by weight-averaging the reported steel plate costs for all the reported CONNUMs. Gordon asked Commerce for further explanation or reconsideration.
The parties appealing a Court of International Trade decision, led by Shanxi Hairui Trade Co., filed a confidential appendix that is not in compliance with the Court of Appeals for the Federal Circuit, the appellate court said in a Dec. 7 notice. The confidential version of the appendix doesn't include the "pertinent excerpts of any statutes imposing confidentiality or the entirety of any judicial or administrative protective order" at the beginning of the filing. Further, the document doesn't have the required proof of service, the notice said. The appellants are challenging the Commerce Department's final results in the administrative review of the antidumping duty order on steel nails from China, in which Commerce used adverse facts available (Shanxi Hairui Trade Co., Ltd. v. United States, Fed. Cir. #21-2067).
The Court of International Trade consolidated two cases challenging the Commerce Department's final results in the third administrative review of the antidumping duty order on hot-rolled steel flat products from Australia, in a Dec. 9 order. One case was brought by U.S. Steel Corp. and the other by Australian company BlueScope Steel Ltd., a mandatory respondent in the review. BlueScope challenged Commerce's decision not to deduct discounts and rebates from BlueScope's normal value when setting its dumping rate, arguing that this decision went against the agency's past regulations and was based on an inaccurate understanding of BlueScope's data (see 2109280038). U.S. Steel, though, said that Commerce violated the law when it found that BlueScope did not reimburse its U.S. affiliate for antidumping duties (see 2109210081). The cases were consolidated under U.S. Steel's action (United States Steel Corporation v. United States, CIT #21-00528).
Importer MTD Products Inc. argued in its Dec. 8 complaint at the Court of International Trade that its lawn mower engines qualify for duty-free treatment and, in the alternative, an exclusion to the Section 301 China tariffs, and that CBP improperly denied its protest claiming as much. The importer brought in spark-ignition reciprocating or rotary internal combustion piston engines from China, each valued at less than $180, that are used in walk-behind, riding and zero-turn riding lawn mowers (MTD Products Inc. v. United States, CIT #21-00036).