Jacob Kopnick

Palm oil importer Virtus Nutrition's wish for an expedited briefing schedule has hit a snag, with the Department of Justice filing its opposition to the importer's application for an order directing the U.S. government to show cause why an expedited litigation schedule should not be entered in the Court of International Trade. Due to the case involving a "complex, novel legal issue" and a longer discovery period for the case, DOJ argued Virtus' request for a shortened litigation timeline should be nixed. The case involves Virtus' more than $2 million in palm oil imports from Malaysia held up by CBP over suspicions of having been made with forced labor, in violation of a Withhold Release Order (Virtus Nutrition, LLC v. United States, CIT # 21-00165).

The U.S. Court of Appeals for the Federal Circuit upheld the Court of International Trade's decision to reject a Commerce Department methodology for calculating antidumping duty margins, in a May 14 opinion. In the ruling, the Federal Circuit found Commerce's attempt to allocate import duties exempted or rebated "based on the import duty absorbed into, or imbedded in, the overall cost of producing the merchandise under consideration," when constructing the export price in an AD review, was unsupported by the law. Commerce attempted this new methodology for calculating the U.S. price for Indian exporter Uttam Galva Steels Limited in an antidumping duty investigation into corrosion-resistent steel products (CORE) from India.

The Court of International Trade remanded an antidumping case on off-the-road tires from China for a second time, ruling that the Commerce Department failed to provide substantial evidence in determining that two respondents were under de facto government control and not warranting of an individual AD rate. Commerce had determined the Chinese government controlled export functions for Aeolus Tyre and Guizho Tyre Co. (GTC). Judge Timothy Stanceu disagreed in a May 14 opinion. The first remand was in 2019.

The following lawsuits were recently filed at the Court of International Trade:

The Court of International Trade is considering staying two antidumping cases until a related question has concluded litigation in the U.S. Court of Appeals for the Federal Circuit, Judge Jennifer Choe-Groves said in a May 13 letter. In the Federal Circuit, a particular market situation (PMS) finding for certain oil country tubular goods from South Korea is being challenged and could be determined to be directly relevant to exporter SeAH Steel Corp.'s cases in CIT (SeAH Steel Corp. v. United States, CIT # 19-00086 and # 20-00150). The Department of Justice broached the idea of a stay until the Federal Circuit case, brought by Nexteel Co., is settled in another SeAH challenge of the same Commerce Department determination (see 2105120028). Responses in both SeAH cases to the question of a stay are due by May 17.

Chinese tire exporters argued against the Commerce Department's choice to only use one mandatory respondent in an antidumping case on certain passenger vehicle and light truck tires from China, filing opening briefs in the U.S. Court of Appeals for the Federal Circuit on May 11. Exporters and appellants ITG Voma Corporation, Suton Tire Resources, YC Rubber Co. and Mayrun Tyre submitted two briefs in the appeal of a Court of International Trade opinion that determined that the statute allows for Commerce to select only one respondent. The exporters argue this is a misinterpretation of the law, citing the language of the governing statute, which includes the plural terms "exporters" or "producers."

The Court of International Trade sustained remand results in an antidumping investigation of whether a sale of steel flanges from Indian exporter Chandan Steel Limited should be excluded from its home market sales database when determining its antidumping duty margin, in a May 13 opinion. The Coalition of American Flange Producers, petitioners in the investigation, argued that Commerce had improperly come to the conclusion to exclude one sale from Chandan's home market database because Commerce failed to show that Chandan knew its sales were for export. In deciding if Chandan knew of its shipment's destination, Commerce considered three pieces of evidence: 1) the export quality packaging provision of the shipment, 2) Chandan's treatment of the shipment's logo and 3) the final payment and delivery terms of the sale. In all three cases, the court upheld Commerce's rationale for finding that all the evidence shows Chandan intended to export its steel flange shipment. For instance, the agency found that the logo on the shipment was consistent with goods sent to foreign markets "because sales to Indian customers and other customers abroad generally had different markings."

The following lawsuits were recently filed at the Court of International Trade:

A domestic producer initiated a challenge to the Commerce Department's countervailing duty determination on phosphate fertilizers from Morocco, in the Court of International Trade, arguing that the agency failed to properly consider four subsidy programs from the Moroccan government (GOM). In a May 12 complaint, The Mosaic Co., said it wants the court to grant relief on a slew of mistakes made by Commerce in the investigation, including its determination that value-added tax exemptions, the provision of the phosphogypsum waste disposal program and VAT refunds did not constitute benefits to the mandatory respondent in the CVD investigation.

Palm oil importer Virtus Nutrition, LLC wants an expedited ruling on itsmore than $2 million in palm oil imports held up by CBP, filing a motion for assignment of a judge and an application for an order directing the U.S. government to show cause why an expedited litigation schedule should not be entered on May 12. Due to storage fees of over $35,000 a month agreed to between Virtus and the port director of CBP for the Port of San Francisco/Oakland, the importer wants to quickly get a ruling on the case and free up the palm oil imports.