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).
The following lawsuits were recently filed at the Court of International Trade:
The U.S. Court of Appeals for the Federal Circuit Dec. 27 ruled that CBP cannot use "bypass" liquidations when considering prior customs treatment. The appellate court held that the Court of International Trade erred when it took these bypass liquidations into its consideration of treatment previously afforded importer Kent International's children's bicycle seats (see 2111030031). Remanding the case to CIT, a three-judge panel at the Federal Circuit, though, upheld the trade court's finding that there was no de facto "established and uniform practice" regarding the customs classification of kids' bike seats. The mandate awarded $127.02 in costs to appellant Kent International (Kent International v. United States, Fed. Circ. #21-1065, CIT #15-00135).
The American Manufacturers of Multilayered Wood Flooring filed two complaints at the Court of International Trade, one contesting the Commerce Department's final results in an antidumping duty review of MLWF from China and in a countervailing duty review of MLWF from China. The U.S. industry group said that Commerce erred in the AD review by deviating from its expected method when finding the final dumping margin for non-selected separate rate companies and that it erred in the CVD review by failing to properly construct benchmarks for veneers, fiberboard and paint, primer and stain (American Manufacturers of Multilayered Wood Flooring v. U.S., CIT #21-00595) (American Manufacturers of Multilayered Wood Flooring v. U.S., CIT #21-00596).
The Commerce Department cannot deduct an antidumping duty review respondent's U.S. price by the amount of Section 232 duties paid, Tube Investments of India argued in a Dec. 27 complaint at the Court of International Trade. While the trade court has repeatedly held that Commerce can make such an adjustment, TII nevertheless filed its complaint, holding that Commerce's decision to deduct Section 232 duties from the U.S. price is not backed by substantial evidence. Nithya Nagarajan of Husch Blackwell, counsel for TII, said that she believes the facts are different in the underlying administrative review and that the legal argument will be different, perhaps giving TII a shot that its results will be different this time around at CIT. The review in question is the 2019-2020 administrative review of the antidumping duty order on cold-drawn mechanical tubing of carbon and alloy steel from India (Tube Investments of India v. United States, CIT #21-00598).
The Commerce Department didn't discredit its position on its ability to verify nonuse of China's Export Buyer's Credit Program in a recent countervailing duty review, the Department of Justice told the Court of International Trade in a Dec. 22 brief. Responding to allegations from the lead plaintiff in a case over a CVD review, DOJ said that Commerce was able to verify nonuse -- despite key information from the Chinese government -- in a separate review due to the low number of the respondents' U.S. customers -- something that is not true of the review at issue.
The Court of International Trade on Dec. 28 sustained the Commerce Department's flip to a final negative determination in the countervailing duty investigation of utility-scale wind towers from Indonesia. Judge Jane Restani, in her second opinion of the day, agreed with Commerce's determination on remand that Krakatau POSCO -- a joint venture between a private South Korean steel company and an Indonesian government-owned company -- is neither an authority nor directed by an authority and therefore can't provide subsidies to the CVD respondents. The court also found that Commerce properly reached a negative upstream subsidy determination for the Rediscount Loan Program. Commerce had issued the order, now slated for revocation, in 2020.