The Court of International Trade consolidated two cases contesting the Commerce Department's final results in the seventh administrative review of the countervailing duty order on crystaline silicon photovoltaic cells from China, according to a Dec. 29 order. The two cases were brought by Wuxi Tianran Photovoltaic Co. and Shanghai JA Solar Technology Co. Both cases challenge Commerce's use of adverse facts available relating to China's Export Buyer's Credit Program -- a position that has been ruled against by the trade court (see 2110200049). The order came following a joint status report that said that all parties agree that the two cases should be consolidated under the one brought by Wuxi Tianran. The order accompanying the joint status report partially lays out the briefing schedule, requiring motions for judgment to be filed by March 9, 2022 (Wuxi Tianran Photovoltaic Co. v. U.S., CIT #21-00538).
The Court of International Trade reassigned five customs cases brought by Continental Automotive Systems from Judge Timothy Stanceu to Judge Jane Restani, in a Dec. 28 order signed by Judge Mark Barnett. Originally filed in 2017 and 2018, the cases concern the proper Harmonized Tariff Schedule classification of Continental's probe element of nitric oxide sensors -- a mass-produced element of NOx sensors, designed for use in consumer passenger vehicles and trucks. Four of the five were placed under a test case. The Department of Justice filed its cross motion for summary judgment Dec. 22 (Continental Automotive Systems v. U.S., CIT #18-00026). The order didn't give a reason for the reassignment.
Antidumping duty petitioner and defendant-appellant Welspun Tubular filed an unopposed motion Dec. 28 for an extension of time to request a full-court rehearing on the U.S. Court of Appeals for the Federal Circuit's decision that the Commerce Department can no longer make a particular market situation adjustment to an AD respondent's cost of production in a sales-below-cost test for the purposes of calculating normal value (see 2112100039). The ruling affirmed a host of Court of International Trade opinions that said the PMS adjustment is reserved solely for constructed value. Petitions for en banc rehearings in the case are due Jan. 9, and Welspun is requesting that this deadline be pushed to Feb. 8 (Hyundai Steel v. U.S., Fed. Cir. #21-1748).
The Commerce Department didn't follow the Court of International Trade's instructions when it continued to find the all-others rate in an antidumping duty investigation by averaging a respondent's zero percent margin and the high China-wide rate, the consolidated plaintiffs, led by Zhejiang Dehua TB Import & Export, argued in a Dec. 29 brief. The plaintiffs blasted Commerce's justification for the move -- that it had a limited record for calculating the separate rate respondents' actual rates -- since "this deficiency is of Commerce's own making" (Linyi Chengen Import and Export Co. v. U.S., CIT Consol. #18-00002).
CBP will suspend liquidation for entries of solar cells subject to Section 201 safeguard duties over the past 10-15 months, following to a Court of International Trade decision that invalidated a Trump-era increase in safeguard duty rates on solar cells and the withdrawal of an exemption for bifacial cells (see 2111170038), CBP said in a CSMS message Dec. 27.
Counsel for pencil importer Royal Brush Manufacturing resubmitted its entry of appearance at the U.S. Court of Appeals for the Federal Circuit Dec. 23, attempting to bring its filing in line with court rules. The appellate court previously found that the notice was not in compliance with court rules since the filing party, Ronald Oleynik of Holland & Knight, didn't have an electronic filing account (see 2112160069). In the updated filing, Steven Gordon was listed as principal counsel for Royal Brush (Royal Brush Manufacturing, Inc. v. U.S., Fed. Cir. #22-1226).
The Commerce Department can't make a particular market situation adjustment to an antidumping duty respondent's cost of production in the sales-below-cost test, the Court of International Trade again said, sustaining the agency's remand results dropping the adjustment. In a Dec. 28 opinion, Judge Jane Restani also said that the issue of the date of the sale in the AD investigation was irrelevant since it wouldn't change the result of the investigation, which was a de minimis rate for respondent Borusan Mannesmann.
The U.S. Court of Appeals for the Federal Circuit should uphold a lower court ruling establishing that the Commerce Department can apply total adverse facts available for a mandatory respondent's failure to provide its factors of production (FOP) data on a control number (CONNUM)-specific basis in an antidumping duty case, the Department of Justice argued in a Dec. 22 brief. DOJ said that the Court of International Trade correctly held that Commerce's requirement for CONNUM-specific reporting isn't subject to notice-and-comment rulemaking requirements, as the plaintiff-appellant Shanxi Pioneer Hardware Industrial argues, but rather an exercise of Commerce's discretion (Xi'an Metals & Minerals Import & Export Co. v. U.S., Fed. Cir. #21-2205).
The Court of International Trade on Dec. 28 sustained a remand redetermination from the Commerce Department that reverses the outcome of Commerce's countervailing duty investigation on utility scale wind towers from Indonesia, which had resulted in a CV duty order in 2020, but post-remand finds no countervailable subsidization.
The Court of International Trade erred when it said that there was no legal authority for expedited countervailing duty reviews, appellants told the U.S. Court of Appeals for the Federal Circuit in their opening brief. The appellants, led by the Canadian government, argued that the trade court improperly applied Chevron deference to the Commerce Department in finding that two different sections of the Uruguay Round Agreements Act didn't give Commerce the legal authority to carry out expedited reviews (Committee Overseeing Action for Lumber International v. U.S., Fed. Cir. #19-00122).