The Commerce Department must reconsider its decision to collapse two mandatory respondents and one of their affiliates in an antidumping duty investigation on corrosion-resistant steel (CORE) products from Taiwan, the Court of International Trade ruled on Sept. 1, seeking to bring Commerce's results in line with a U.S. Court of Appeals for the Federal Circuit mandate. Judge Timothy Stanceu also ordered Commerce to use facts otherwise available with an adverse inference on one of the respondent's reporting of yield strength in the investigation.
Court of Federal Appeals Trade activity
The Court of Appeals for the Federal Circuit upheld a Court of International Trade ruling in a Sept. 2 order, finding it does not have jurisdiction to hear Chinese automobile parts exporter Wanxiang America Corporation's lawsuit. Claiming the trade court's residual Section 1581(i) jurisdiction, Wanxiang filed a due process claim against the Commerce Department's guidance to CBP instructing the customs agency to deny Wanxiang the company-specific antidumping duty rate for its tapered roller bearings entries and apply the country-wide rate. The appellate court found it would have had jurisdiction if there were a denied customs protest under Section 1581(a). CAFC also could have had Section 1581(c) jurisdiction if Wanxiang initiated a test shipment and sought an administrative review and remained unsuccessful in pursuing the company-specific rate, the court said.
The Commerce Department properly rejected data corrections submitted by exporter Goodluck India in an antidumping duty investigation on cold-drawn mechanical tubing from India, the U.S. Court of Appeals for the Federal Circuit said in an Aug. 31 opinion, reversing the Court of International Trade's decision. The corrections were not “minor,” meaning that Commerce was justified when it originally rejected the revisions and hit Goodluck with an adverse facts available AD duty rate, a three-judge panel at the appellate court said.
The Court of International Trade remanded certain aspects of the results of a less-than-fair-value investigation into corrosion-resistant steel products from Taiwan to the Commerce Department concurrent with a mandate from the U.S. Court of Appeals for the Federal Circuit, in a Sept. 1 order. Having reversed two of CIT's findings in the case, the Federal Circuit mandate instructs Commerce to reconsider its decision to collapse the two mandatory respondents and an affiliate in the investigation and to use facts otherwise available with an adverse inference as to the reporting of yield strength by one of the respondents.
The Court of International Trade should not stay judgment of its decision rejecting Section 232 duties on steel and aluminum "derivatives" since plaintiffs in a separate but relevant case at the U.S. Court of Appeals for the Federal Circuit have a "significant probability" to succeed, a motion opposing the stay said. Plaintiffs Oman Fasteners and Huttig Building Products filed their opposition on Aug. 30 after the Justice Department sought the stay once the Federal Circuit issued its opinion in the Transpacific Steel LLC, et al. v. U.S. case, permitting the president to take Section 232 tariff actions beyond procedural deadlines (Oman Fasteners, LLC, et al. v. U.S., CIT Consol. #20-00037).
The Commerce Department's arguments to the U.S. Court of Appeals for the Federal Circuit that say that pencil importer Prime Time Commerce failed to exhaust its administrative remedies in an antidumping duty review mistake the agency's regulatory requirements, Prime Time said in an Aug. 26 reply brief. Having already requested certain "gap-filling" information that only Commerce could provide five other times in the review, Prime Time did not need to request a sixth time to have argued for a separate rate in the review, the brief said.
The Court of International Trade remanded an antidumping case to the Commerce Department after the U.S. Court of Appeals for the Federal Circuit reversed the trade court's initial ruling in an Aug. 26 order. The Federal Circuit had on July 20 backed Commerce's initial decision to adjust a Turkish pipe exporter's post-sale price by only one-third of a late delivery penalty, finding that the adjustment was supported by substantial evidence (see 2107200038). CIT erred in leading Commerce to adjust the post-sale price by the entirety of the penalty cost since the customer was not aware of the methodology by which the amount of the penalty was to be determined. Commerce has 45 days to file the remand, and any objections can be filed 20 days after the redetermination submission (Borusan Mannesmann Boru Sanayi ve Ticaret A.S., et al. v. United States, CIT Consol. #19-00056).
The U.S. Court of Appeals for the Federal Circuit agreed with the Court of International Trade's rejection of CBP regulations that limit the amount of drawback that can be claimed on excise taxes, the CAFC said in a ruling. "We conclude that the expansive definition in the Rule, which extends drawback to situations in which tax is never paid or determined, conflicts with the unambiguous text of the statute," said the CAFC.
The Commerce Department's remand results following an opinion from the U.S. Court of Appeals for the Federal Circuit over an antidumping duty administrative review should be remanded yet again, mandatory respondent Bosun Tools Co. said in comments at the Court of International Trade. Commerce should have applied neutral facts available instead of adverse facts available when weighing Bosun's country of origin information using a first-in-first-out (FIFO) methodology, Bosun said. Even if this use of AFA is sustained, it should be limited to missing information and not applied to the U.S. sales prices for reported-FIFO sales, as Commerce did, Bosun suggested (Diamond Sawblades Manufacturers' Coalition v. United States, CIT #17-00167).
Mexican steel company Deacero S.A.P.I. de C.V. and its U.S. affiliate moved to stay proceedings in its case at the Court of International Trade pending the appeal of a related matter at the U.S. Court of Appeals for the Federal Circuit in an Aug. 12 stay motion. Deacero wants action halted in its case until the Universal Steel Prod., Inc. et al. v. U.S. case has a decision at the Federal Circuit. While Deacero's case challenges the Commerce Department's findings in an antidumping duty review on the grounds that the agency's treatment of Section 232 duties paid by Deacero as ordinary customs duties and deduction from U.S. price are unsupported, the Universal Steel case has broader implications and would eliminate the need for Deacero to litigate the claims.