The Commerce Department's recent interpretation of the finished merchandise exemption to antidumping and countervailing duty orders on aluminum extrusions from China led to the "same absurd results" the agency originally wanted to avoid in its previous "subassemblies test" interpretation, importer WKW North America argued in a June 21 brief in support of its motion for judgment at the Court of International Trade. WKW contests a scope ruling from Commerce that found that the importer's automotive waist finishers, belt moldings and outer waist belts are within the scope of the AD/CVD orders because subassemblies can't qualify for the exemption (WKW North America, LLC v. United States, CIT #21-00072).
Court of International Trade activity
Target's complaint filed in the Court of International Trade challenging the court's ability to order the reliquidation of imports past 90 days after their initial liquidation by CBP “masquerades as a motion” for CIT to relitigate this issue, the Department of Justice said in a June 22 motion to dismiss the case. The court's decision in the underlying case, Home Products International Inc. v. United States, already addressed Target's complaint, so the case should be dismissed for failure to state a claim, DOJ said.
The Court of International Trade dismissed all but one of importer Maple Leaf Marketing's claims against Section 232 steel tariffs levied against goods shipped to Canada for further processing then re-imported to the U.S., in a decision issued late on June 22. Finding that the president has broad authority to determine the "nature of the action necessary to adjust imports that threaten the national security," a three-judge panel tossed Maple Leaf's challenges to the imposition of the tariffs on Canada, which Maple Leaf had argued was untimely, as well as to the assessment of Section 232 duties on steel articles qualifying for repair and alteration treatment under Chapter 98, among other things. The trade court allowed Maple Leaf's remaining challenge of the Commerce Department's denial of its request for exclusions from the duties to proceed.
The Court of International Trade sustained the Commerce Department's finding that tapered roller bearings exporter Zhejiang Machinery Import & Export Corp. failed to rebut the presumption of government control in an antidumping proceeding, in a June 23 decision. After reconsidering rejected evidence as instructed by Judge Gary Katzmann, Commerce still held that ZMC could be controlled by the Chinese government. ZMC, through multiple layers of ownership, is owned by the Zhejiang Provincial State-owned Assets Supervision and Administration Commission within the government of China, and a labor union for ZMC parent company Zhejiang Sunny I/E Corp. Since the ultimate owners of the labor union's shares were members of Sunny's government-run employee stock ownership committee, the Chinese government can exert control over ZMC, Commerce found.
The following lawsuits were recently filed at the Court of International Trade:
Steel exporter Borusan Mannesmann Boru Sanayi ve Ticaret will appeal a June 16 Court of International Trade decision to the U.S. Court of Appeals for the Federal Circuit, according to a June 21 notice of appeal. In the decision, Judge Jane Restani sustained the Commerce Department's remand results in an antidumping administrative review of circular welded carbon steel standard pipe and tube products from Turkey. The remand results dropped any adjustments made to the sales-below-cost test relating to a particular market situation (see 2106170026). Restani said that PMS adjustments are only allowed when calculating normal value based on constructed value, as opposed to normal value based on home market sales (Borusan Mannesmann Boru Sanayi ve Ticaret A.S. et al. v. United States, CIT #20-00015).
The Commerce Department complied with the Court of International Trade's remand instructions in an antidumping case on frozen warmwater shrimp from India by switching from an application of adverse facts available to neutral facts available, the Department of Justice said in June 17 comments on the remand results (Calcutta Seafoods Pvt. Ltd., Bay Seafood Pvt. Ltd. v. U.S., CIT #19-00201). So far, no parties to the case have taken issue with the remand results, though Commerce submitted them “under respectful protest.” DOJ joins defendant-intervenor and petitioner in the case, Ad Hoc Shrimp Trade Action Committee, in signing off on the remand results (see 2106040074).
Dominican aluminum extrusion manufacturer Kingtom Aluminio SRL will not be allowed to intervene in a Court of International Trade case in which it is alleged to be involved in a transshipment scheme to avoid antidumping duties, according to a June 21 order. Kingtom did not establish that its interest in continuing to sell aluminum extrusions to the importer plaintiffs without duties is an "interest relating to the property or transaction that is the subject of the action," as required by the court's rules. Kingtom also did not have a claim that shares with the main action -- a challenge of an Enforce and Protect Act" investigation -- a common question of law or fact (Global Aluminum Distributor LLC v. United States, CIT #21-00198).
The U.S. Supreme Court will not hear Hyundai Heavy Industries' case challenging the Commerce Department's use of adverse facts available to set an antidumping duty rate on power transformers from Korea. The court did not explain the June 21 petition denial. Hyundai appealed a 2019 Court of International Trade opinion sustaining Commerce's use of AFA and an opinion-less affirmation of that ruling from the U.S. Court of Appeals for the Federal Circuit.
Former Sidley Austin partner Brian Nester joined Covington & Burling as a partner in its Washington, D.C.-based patent litigation practice, the firm announced in a June 15 press release. Nester has litigated extensively before the International Trade Commission and federal district courts across the country.