The Court of International Trade sustained the Commerce Department's second remand results in an antidumping review, finding that the agency properly relied on data from Xeneta XS rather than Maersk Line when calculating the respondent's surrogate ocean freight expenses in an Aug. 10 opinion. The case came from the fourth administrative review of the antidumping order on crystaline silicon photovoltaic cells, whether or not assembled into modules, from China. Twice before, Judge Claire Kelly raised concerns over Commerce's initial selection of Maersk for the surrogate freight expenses.
Court of International Trade activity
The Commerce Department must further explain its departure from the expected method in calculating the non-individually examined respondents rate in an antidumping review, the Court of International Trade said in an July 30 opinion made public on Aug. 6. Chief Judge Mark Barnett, issuing his third opinion in the case, partially remanded the case yet again, but did sustain Commerce's corroboration of the petition rate for mandatory respondent Unicatch based on individual transactions.
The following lawsuits were recently filed at the Court of International Trade:
Garg Tube Export and Garg Tube Limited want proceedings in their Court of International Trade case stayed until another lawsuit, also filed by Garg Tube Export, is resolved, the plaintiffs said in an Aug. 5 motion. Since both cases concern the Commerce Department's finding of a particular market situation in India for the sale of welded carbon steel standard pipes and tubes, the similarity of the legal issues prompts a stay order, the plaintiffs said. Garg requested the stay in a case over the 2018-19 administrative review of the antidumping duty order on welded carbon steel standard pipes and tubes from India until the appeal is resolved for its case over the 2017-18 administrative review for the same goods. Doing so would "promote judicial efficiency," the exporter said (Garg Tube Export LLP et al. v. United States, CIT #21-00169).
Two Court of International Trade cases from Optima Steel International should not be consolidated since they fall under different "jurisdictional provisions and standards of review," the Department of Justice argued in an Aug. 5 brief. While one case challenges CBP's assessment of antidumping duties and thus falls under Section 1581(a), the other goes after the Commerce Department's liquidation instructions and therefore is under Section 1581(i). "In Court No. 21-00062, the question before the Court is whether CBP, in its ministerial role, properly assessed antidumping duties to the entries at issue pursuant to Commerce’s liquidation instructions," DOJ said. "Court No. 21-00327, however, involves the question of whether Commerce’s liquidation instructions were proper based upon the record before Commerce. Thus, the distinct operative facts and legal issues in the two actions weigh against consolidation" (Optima Steel International, LLC v. U.S., CIT #21-00062) (Optima Steel Internaitonal, LLC et al. v. U.S., CIT #21-00327).
The Court of International Trade should dismiss an antidumping and countervailing duty evasion protest brought by All One God Faith, doing business as Dr. Bronner's Magic Soaps, since the court lacks jurisdiction over the entries, the U.S. defense said on Aug. 2 in a partial motion to dismiss. Since Dr. Bronner's xanthan gum entries have already liquidated and the importer failed to make a timely appeal of its protest of the liquidation, the court has no jurisdiction over the entries, the Department of Justice said (All One God Faith, Inc. et al. v. United States, CIT #20-00164).
The Aug. 9 deadline has arrived for Section 301 plaintiffs and the government to deliver to the Court of International Trade a joint status report on how the sides are progressing to resolve their disagreements over proposed rules to create a CBP repository for importers to request suspended liquidation of customs entries from China with lists 3 and 4A tariff exposure. The court’s July 6 preliminary injunction order freezing the status of unliquidated entries instructed CBP to have the repository up and running by July 20, but two postponements amid all the disagreements have pushed the deadline back by a month. Chief Judge Mark Barnett used the court’s status conference Aug. 2 to urge the sides to seek the “middle ground” (see 2108020029).
Aluminum extrusion producer Kingtom Aluminio requested to intervene in a Court of International Trade case over an antidumping duty evasion investigation that found it transshipped aluminum extrusions from China through the Dominican Republic to skirt the duties. A previous request was denied by Judge Richard Eaton (see 2106210059). Undeterred, Kingtom filed a motion for reconsideration in the court. Eaton permitted the producer on Aug. 5 to support its motion with an affidavit by individuals who can speak to Kingtom's interests in the case along with a brief, with a maximum of 10 pages, to explain how this affidavit satisfies the requirement for intervention (Global Aluminum Distributor LLC v. United States, CIT #21-00198).
The Court of International Trade remanded the Commerce Department's second remand results in the first administrative review of the antidumping duty order on certain steel nails from Taiwan in a July 30 decision released publicly Aug. 6. After issuing two prior opinions in the case, Chief Judge Mark Barnett considered Commerce's second remand results, ultimately sending them back so the agency can further explain or reconsider its use of a simple average of the mandatory respondents' rates to establish the AD duty rate for non-individually examined respondents. However, Barnett did sustain Commerce's use of transaction-specific margins to corroborate the petition rate.
The Commerce Department and the International Trade Commission published the following Federal Register notices Aug. 6 on AD/CV duty proceedings: