The Commerce Department's position that the provision of electricity for less than adequate remuneration is specific to solar cell producers is not backed by substantial evidence, countervailing duty review respondent Risen Energy Co. argued in a Dec. 1 reply brief at the Court of International Trade. The arguments that the government relies on misinterpret the evidence cited by Commerce and in fact affirm the minor role of China's National Development and Reform Commission -- the entity China used to establish the specificity of the alleged benefits, Risen argued (Risen Energy Co., Ltd., et al. v. United States, CIT Consol. #20-03912).
The Court of International Trade remanded on Dec. 13 the Commerce Department's final results in the antidumping duty investigation of utility scale wind towers from South Korea. Judge Leo Gordon held that Commerce didn't group the different towers' control numbers together by any of the required 11 physical characteristics or use the characteristics as a "guidepost." Instead, the agency adjusted the towers' costs by weight-averaging the reported steel plate costs for all the reported CONNUMs. Gordon asked Commerce for further explanation or reconsideration.
The Commerce Department can no longer make a particular market situation adjustment to an antidumping respondent's cost of production in a sales-below-cost test, the U.S. Court of Appeals for the Federal Circuit held in a Dec. 10 opinion. Cementing what the Court of International Trade has repeatedly held, a three-judge panel at the appellate court said that the statute -- in particular, a section of the 2015 Trade Preferences Extension Act -- does not permit such a PMS adjustment. Rather, the statute only allows a PMS adjustment for constructed value, the Federal Circuit said.
The parties appealing a Court of International Trade decision, led by Shanxi Hairui Trade Co., filed a confidential appendix that is not in compliance with the Court of Appeals for the Federal Circuit, the appellate court said in a Dec. 7 notice. The confidential version of the appendix doesn't include the "pertinent excerpts of any statutes imposing confidentiality or the entirety of any judicial or administrative protective order" at the beginning of the filing. Further, the document doesn't have the required proof of service, the notice said. The appellants are challenging the Commerce Department's final results in the administrative review of the antidumping duty order on steel nails from China, in which Commerce used adverse facts available (Shanxi Hairui Trade Co., Ltd. v. United States, Fed. Cir. #21-2067).
The Court of International Trade consolidated two cases challenging the Commerce Department's final results in the third administrative review of the antidumping duty order on hot-rolled steel flat products from Australia, in a Dec. 9 order. One case was brought by U.S. Steel Corp. and the other by Australian company BlueScope Steel Ltd., a mandatory respondent in the review. BlueScope challenged Commerce's decision not to deduct discounts and rebates from BlueScope's normal value when setting its dumping rate, arguing that this decision went against the agency's past regulations and was based on an inaccurate understanding of BlueScope's data (see 2109280038). U.S. Steel, though, said that Commerce violated the law when it found that BlueScope did not reimburse its U.S. affiliate for antidumping duties (see 2109210081). The cases were consolidated under U.S. Steel's action (United States Steel Corporation v. United States, CIT #21-00528).
Importer MTD Products Inc. argued in its Dec. 8 complaint at the Court of International Trade that its lawn mower engines qualify for duty-free treatment and, in the alternative, an exclusion to the Section 301 China tariffs, and that CBP improperly denied its protest claiming as much. The importer brought in spark-ignition reciprocating or rotary internal combustion piston engines from China, each valued at less than $180, that are used in walk-behind, riding and zero-turn riding lawn mowers (MTD Products Inc. v. United States, CIT #21-00036).
The Commerce Department need not address the issue of an antidumping respondent's date of sale since it would have no material effect on the respondent's rate, the Department of Justice said in a Dec. 7 brief at the Court of International Trade. Responding to the antidumping petitioner's comments that argued that Commerce needs to resolve the U.S. date of sale issue as required by the court, the U.S. said that this would be an exercise in futility that is not required by the relevant caselaw since it would be immaterial to the final rate. The respondent, Turkish steel company Borusan Mannesmann echoed these sentiments in its own brief, and added that two-and-a-half years is long enough for it to have waited for the relief that it is entitled to (Borusan Mannesmann Boru Sanayi ve Ticaret A.S. v. U.S., CIT Consol. #19-00056).
The issue of whether a South Korean port usage rights program is countervailable is not moot just because the Commerce Department has now assigned a de minimis rate to the countervailing duty respondent, Hyundai Steel Co. argued in a Dec. 8 reply brief at the Court of International Trade. Rather, since Commerce can continue subjecting Hyundai to countervailing duty reviews based on this port usage rights program, the question is key for Hyundai, despite the fact that it is not being hit with CV duties this time around, the company said (Hyundai Steel Company v. United States, CIT #20-03799).
A group of U.S. steel companies, including U.S. Steel Corp., made their case to the U.S. Court of Appeals to the Federal Circuit in a Dec. 8 brief as to why they should be allowed to intervene in multiple cases challenging the Commerce Department's decision to deny an exclusion to Section 232 national security tariffs. The Court of International Trade had denied their right to intervene due to the companies' lack of a legally protectable interest in the cases. The American steel producers countered by arguing that they have a right to intervene based on their participation administratively in the exclusion cases, direct economic stake in the outcome and position as intended beneficiaries of the Section 232 measures (California Steel Industries, Inc. v. United States, Fed. Cir. #21-2172).
Plaintiffs challenging an antidumping review, led by Hung Vuong Corporation, will appeal an October Court of International Trade opinion upholding the Commerce Department's use of adverse facts available, the plaintiffs said in a Dec. 8 notice of appeal. The decision, which came in a case over an administrative review of the antidumping duty order on frozen fish fillets from Vietnam, will be appealed to the U.S. Court of Appeals for the Federal Circuit. Commerce's use of AFA was originally remanded by the court, but was then sustained after swapping out the grounds on which the AFA finding was based (see 2110130031). The agency ultimately based the AFA finding on Hung Vuong's failure to retain source documents on feed consumption, production records and sales correspondence, and Hung Vuong's failure to report factors of production data on a control number-specific basis (Hung Vuong Corp., et al. v. United States, CIT #19-00055).