The Commerce Department properly fixed an error in its liquidation instructions, the Court of International Trade said in a Dec. 17 opinion sustaining the agency's remand results in an antidumping review. Fixing the name of one of the mandatory respondents that received its own rate in the review, Commerce's remand allowed the respondent -- Tokyo Steel Manufacturing Co. -- to receive the proper rate on its entries.
Antidumping respondent Jilin Forest Industry Jinqiao Flooring Group continued to argue that assigning it the China-wide entity rate is an unfair application of adverse facts available in Dec. 16 comments on the Commerce Department's remand results submitted to the Court of International Trade. Notably, though, Jinqiao Flooring did not mention a recent U.S. Court of Appeals for the Federal Circuit opinion that found that China-wide rates can still be based on AFA even if no members of the countrywide entity were found to be uncooperative. Nevertheless, the company claimed it should be granted a separate dumping rate and that substantial evidence does not back Commerce's contention that it is de facto controlled by the Chinese government (Jilin Forest Industry Jinqiao Flooring Group v. U.S., CIT #18-00191).
Although the Commerce Department could get a more accurate dumping rate for the non-individually examined respondents in antidumping reviews by selecting more mandatory respondents, it has no legal requirement to do so, the Court of International Trade said in a Dec. 17 opinion. Sustaining Commerce's remand results, Judge Richard Eaton said that the agency properly excluded one of the two mandatory respondents' zero percent dumping rate and merely applied the other respondent's rate to all others in the review. The court also upheld Commerce's selection of surrogate data in the face of the plaintiffs' challenge.
The Court of International Trade sustained on Dec. 20 the Commerce Department's final results in the administrative review of the antidumping duty order on steel concrete reinforcing bar from Mexico in which plaintiff Deacero served as a mandatory respondent. The court held, as it has done before, that Commerce can deduct Section 232 steel and aluminum duties from Daecero's U.S. price because they can be treated as U.S. import duties. Further, Judge Jane Restani said Commerce did not violate the Administrative Procedure Act by not notifying Daecero of its decision to deduct the Section 232 duties. Since AD procedures are fact-based, investigative activities, they are not beholden to notice-and-comment procedures, she said.
The following lawsuits were recently filed at the Court of International Trade:
The U.S. Court of Appeals for the Federal Circuit found the notice of appearance for pencil importer Royal Brush Manufacturing's counsel in the company's appeal of an evasion finding to not be in compliance with the court's rules. Ronald Oleynik of Holland & Knight, the attorney listed on Royal Brush's Entry of Appearance, had not registered for an electronic filer account with the Federal Circuit's filing system. The form must be resubmitted once Oleynik has an electronic filing account, the notice said (Royal Brush Manufacturing, Inc. v. U.S., Fed. Cir. #22-1226).
The Commerce Department dropped its particular market situation adjustment to two antidumping respondent's cost of production in the sales-below-cost test in Dec. 15 remand results submitted to the Court of International Trade. If sustained, the result would cause the dumping rates for the respondents -- HiSteel Co. and Kukje Steel Co. -- to drop to 9.90% and 1.91%, respectively. The move by Commerce is one many in response to prior CIT opinions finding it illegal to make a PMS adjustment to the COP in a sales-below-cost test. Most recently, the U.S. Court of Appeals for the Federal Circuit upheld this principle in a precedential opinion (see 2112100039) (HiSteel Co., Ltd., et al. v. United States, CIT #20-00146).
The Court of International Trade extended on Dec. 16 a mediation period in three cases contesting the Commerce Department's denial of Section 232 exclusion requests, until Feb. 15. The mediation, held by Judge Leo Gordon, was ordered after the consolidated plaintiffs' request for a status conference was denied as moot. The plaintiffs wanted the status conference to discuss the availability of a remedy for already-liquidated entries.
The Court of International Trade on Dec. 17 sustained the Commerce Department's remand results in an administrative review of the antidumping duty order on hot-rolled steel from Japan. Mandatory respondent Tokyo Steel Manufacturing Co. and its importer, Optima Steel International, brought the case to challenge Commerce's liquidation instructions, which included the wrong name for Tokyo Steel, resulting in an improper liquidation since the company had its own rate in the review. Commerce requested the remand to fix the error.
Five Republican Senators filed an amicus brief on Dec. 15 with the U.S. Supreme Court, urging it to take up a case over the limits of the president's authority under the Section 232 national security tariff statute. The brief, signed by Sens. Pat Toomey, R-Pa.; Mike Crapo, R-Idaho; Bill Cassidy, R-La.; Mike Lee, R-Utah; and Ben Sasse, R-Neb., argues against a U.S. Court of Appeals for the Federal Circuit opinion spurning time limits imposed in the statute. The time limits are crucial to ensuring that "Congress makes the major policy decisions regarding the regulation of foreign commerce," the lawmakers said.