Court of International Trade

The Court of International Trade vacated a Commerce Department regulation establishing expedited reviews for countervailing duty investigations in an Aug. 18 opinion. Chief Judge Mark Barnett, after issuing three other opinions in the case, upheld Commerce's finding that it couldn't find any alternative statutory basis on which to find that the regulation can exist. Barnett also nixed the expedited CVD reviews provided to some Canadian companies relating to the CVD order on certain softwood lumber from Canada. In doing so, Barnett ruled that companies deemed excluded from the CVD order due to the expedited reviews shall prospectively be reinstated as subject to it. Commerce shall also impose a cash deposit requirement based on the all-others rate from the investigation or the company-specific rate determined in the most recently completed administrative review in which the company was reviewed, Barnett said.

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).

The Court of International Trade sustained in part and remanded in part the Commerce Department's remand results in an antidumping investigation into carbon and alloy steel cut-to-length plate from Germany in two opinions. Judge Leo Gordon again remanded Commerce's application of the major input rule, treatment of certain general and administrative expenses and the application of adverse facts available. The judge did, however, sustain Commerce's differential pricing analysis and adjustment of interest expense to include a portion of respondent AG der Dillinger Huttenwerke's parent holding company's interest expense.

The U.S.' voluntary remand request in two Section 232 exclusion cases should be denied in its current form since the government's delayed, tranched solution is "unconscionable," steel importers Allegheny Technologies Inc. and California Steel Industries argued in an Aug. 16 reply brief. Given that Section 232 steel and aluminum tariff exclusion requests are supposed to be decided within 106 days, the Commerce Department's proposed nine to 12 month schedule to reconsider CSI's exclusion requests is "unreasonable" with a "nonsensical" rationale, CSI argued (Allegheny Technologies Incorporated et al. v. U.S., CIT #20-03923)(California Steel Industries, Inc. v. U.S., CIT #21-00015).

The Court of International Trade sustained the Commerce Department's final results in a countervailing duty administrative review on steel concrete reinforcing bar from Turkey in an Aug. 18 opinion. Judge Gary Katzmann ruled against plaintiff Habas Sinai ve Tibbi Gazlar Istihsal Endustrisi's motion for judgment, holding that Commerce permissibly rejected United Nations Comtrade and Eurostat data on natural gas imports from Russia in calculating a "tier-two benchmark" in its sales-below-cost analysis of Habas' natural gas prices. Katzmann also held that Commerce reasonably refused to use the Eurostat natural gas import data from Norway, Alberia, Libya and Ukraine in its "tier-three benchmark" calculations, while properly relying on IEA data for the tier-three calculations.

The Court of International Trade denied Otter Products' motion for leave to file a reply and to enforce judgment as part of a customs case in an Aug. 18 opinion. OtterBox sought refunds on a prior disclosure it made on imports of smartphone covers since it prevailed in another CIT case on entries of the same product. The court ruled against OtterBox in this instance, citing a lack of jurisdiction. “Because the entries associated with the Prior Disclosure were not part of the Subject Protest, they are not part of this action and the Court does not have jurisdiction to order the relief OtterBox requests,” the opinion said.

Target's attempt to fight off the Department of Justice's motion to dismiss a customs case at the Court of International Trade falls flat, DOJ argued in an Aug. 13 reply brief. Following practices codified by the U.S. Court of Appeals for the Federal Circuit, CIT properly ordered the reliquidation of improperly liquidated ironing tables from China, DOJ said, backing the court's authority to do so (Target Corp. v. U.S., CIT #21-00162).

Antidumping petitioner U.S. Steel Corporation and the two mandatory respondents in the contested antidumping duty review, SeAH Steel Co. and NEXTEEL Co., submitted their comments on the Commerce Department's remand results at the Court of International Trade. U.S. Steel spoke out against Commerce's flip on its finding of a particular market situation for South Korean steel while the respondents argued against the agency's reallocation of suspended product line and inventory valuation losses to general and administrative expenses and Commerce's decision to deduct a portion of SeAH's G&A expenses of a U.S. affiliate for further manufacturing costs (SeAH Steel Co. v. United States, CIT #19-00086).

The Commerce Department does not need to "poll the industry" to find out if over half of the domestic industry supports an antidumping or countervailing duty petition, Judge Leo Gordon of the Court of International Trade said in an Aug. 16 letter. Responding to consolidated plaintiff M S International's request for a remand directing Commerce to poll the industry or "collect additional information establishing whether there was industry support" for the contested AD/CVD petition, Gordon said this request stemmed from a misunderstanding of the law (Pokarna Engineered Stone Ltd. v. U.S., CIT Consol. #20-00127).

Ribbons exporter Yama Ribbons and Bows Co. did not benefit from China's Export Buyer's Credit Program, the Commerce Department said in Aug. 13 remand results filed at the Court of International Trade. Commerce's new determination, filed under respectful protest, led to the reconsideration of its use of adverse facts available in a countervailing duty review and subsequent exclusion of the AFA rate assigned to the EBCP for Yama. Commerce did, however, continue to find that the provision of synthetic yarn and caustic soda for "less than adequate remuneration" did meet the specificity requirement of the law and are deemed countervailable subsidies (Yama Ribbons and Bows Co. v. U.S., CIT #19-00047).