The Court of International Trade denied a Vietnamese fish exporter's bid to obtain a separate antidumping rate from the country-wide rate in a July 6 opinion made public on July 21, finding the exporter failed to rebut the presumption of de facto government control. In the 15th administrative review of the antidumping order on frozen fish fillets from Vietnam, the Commerce Department had denied I.D.I. International Development and Investment Corporation's application for a separate AD rate. The agency had said that the company didn't have autonomy from the government in making its management selection decisions, as evidenced by a government employee on its corporate board.
The Court of International Trade sustained the Commerce Department's negative antidumping and countervailing duty circumvention rulings on certain hardwood plywood products from China in a July 21 opinion, finding that Shelter Forest International Acquisition's goods were not later-developed merchandise. Commerce had reversed its initial finding of circumvention on remand after a previous CIT ruling in the case. The Coalition for Fair Trade in Hardwood Plywood challenged Commerce's findings, claiming that since a component of the glue was a trade secret, it could not be considered commercially available, making it later-developed. The court disagreed, ruling that whether the trade secret status of one part is irrelevant as to whether the plywood was actually “present in the market.”
All customs entries from China with Section 301 lists 3 and 4A tariff exposure not yet liquidated as of the U.S. Court of International Trade's July 6 preliminary injunction (PI) order freezing liquidations would liquidate "in the ordinary course" and be refunded to the plaintiff importers at the end of the litigation if they win, Akin Gump lawyers proposed July 20 for sample case plaintiffs HMTX Industries and Jasco Products. Akin Gump seized on the proposal after DOJ lawyers at a status conference July 15 opened the door a crack to the possibility they would support a refund stipulation after months of refusing to do so.
The following lawsuits were recently filed at the Court of International Trade:
The U.S. Court of Appeals for the Federal Circuit affirmed in a July 19 ruling the Court of International Trade's denial of a challenge to a 2020 amendment to an antidumping duty suspension agreement on sugar from Mexico. The trade court had in June 2020 denied CSC Sugar's bid to vacate the suspension agreement amendment. The Federal Circuit upheld the decision without opinion.
A spice company's challenge to a $50,000 penalty for failing to export a shipment of tamarind from Mexico was dismissed from the Court of International Trade for a lack of subject matter jurisdiction, Judge Timothy Stanceu said in a July 19 opinion. CIT found that the case was untimely filed in the court and that the complaint is over a Food and Drug Administration decision merely carried out by CBP.
The U.S. Court of Appeals for the Federal Circuit in a July 20 ruling found that the Commerce Department's initial post-sale price adjustment based on a late delivery penalty in an antidumping case was properly supported. The appellate court reversed a Court of International Trade decision which found that Commerce should have adjusted the price by the entirety of the exporter's penalty payment and not just one-third of it, as Commerce originally did.
The Court of International Trade again rejected the Commerce Department's attempt to make a particular market situation adjustment to the cost of production in a sales-below-cost test in an antidumping case, according to a July 19 opinion. Yet again, the court said that such adjustments, resulting in alternative cost methodologies, are reserved for constructed value and not normal value because sales used when calculating normal value must be carried out in the "ordinary course of trade."
The Commerce Department was justified in continuing to apply total adverse facts available in an antidumping case after a Court of International Trade remand since the respondent failed to accurately report control number-specific U.S. sales and factors of production data when it could have "easily" done so, case petitioner Catfish Farmers of America said in a July 9 reply brief. Doubling down on Commerce's arguments, the catfish farmers said the court should sustain the remand results in the case over the final results of the 14th administrative review of the antidumping duty order on frozen fish fillets from Vietnam (Hung Vuong Corporation, et al. v. United States, CIT #19-00055).
The Court of International Trade rejected the Commerce Department's rationale for applying a particular market situation adjustment to a sales-below-cost test in an antidumping case, in a July 19 opinion. Having repeatedly ruled that no such adjustment can be made, Judge Jennifer Choe-Groves remanded the results in the 2015-16 administrative review of the antidumping order on circular welded non-alloy steel pipe from South Korea for the third time. Judge Choe-Groves held that the statute instructs Commerce to only make PMS adjustments when calculating constructed value in an AD case and to only use sales in the “ordinary course of trade” when establishing normal value. Since PMS sales are not within the ordinary course of trade, they should be dropped from a normal value calculation rather than used to adjust the cost of production, she said.