Court of International Trade

The U.S. will appeal a Court of International Trade decision sustaining the Commerce Department's drop of a particular market situation adjustment to the sales-below-cost test in an antidumping duty review. In an Aug. 13 filing, the U.S. gave notice of its intent to appeal the case to the U.S. Court of Appeals for the Federal Circuit. The case was brought by Turkish steel company Borusan Mannesmann Boru Sanayi ve Ticaret, which challenged an administrative review of the antidumping duty order on circular welded carbon steel standard pipe and tube products from Turkey (see 2106170026). Judge Jane Restani ruled that Commerce improperly applied a PMS adjustment in the below-cost test, finding that such adjustments are only allowed when calculating normal value based on constructed value, as opposed to normal value based on home market sales (Borusan Mannesmann Boru Sanayi ve Ticaret A.S. et al v. United States, CIT, Slip Op. 21-75, #20-00015).

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).

The Coalition for Fair Trade in Hardwood Plywood will appeal a Court of International Trade opinion in an anti-circumvention inquiry involving antidumping and countervailing duty orders on hardwood plywood to the U.S. Court of Appeals for the Federal Circuit, the coalition said in a notice of appeal. In the case, the Commerce Department eventually came to find that Shelter Forest International Acquisition's hardwood plywood exports from China were not later-developed merchandise and therefore did not circumvent the AD/CVD orders (see 2107210028). The coalition was the petitioner for the anti-circumvention inquiry and served as the defendant-intervenor in the CIT case (Shelter Forest International Acquisition, Inc. et al. v. U.S., CIT Consol. #19-00212).

The U.S. Court of Appeals for the Federal Circuit should find that pencil importer Prime Time Commerce did not exhaust its administrative remedies by failing to comment on the Commerce Department's remand results in the Court of International Trade, the Department of Justice told the appellate court. Despite its five attempts to obtain “gap-filling” information necessary to determine the correct antidumping rate in an administrative review, Prime Time did not comment on the case's remand results, meaning the importer stands in violation of the exhaustion doctrine that precludes judicial review, DOJ said in its reply brief (Prime Time Commerce, LLC v. U.S., Fed. Cir. #21-1783).

NetJets Aviation, a commercial airline operator, filed an amended complaint on Aug. 11 at the Court of International Trade, dropping its claim under Section 1581(i) after the Department of Justice moved to partially dismiss the case. Following litigation on the issue (see 2108110027), NJA simply moved forward and dropped the claim, succumbing to DOJ's view of the proper jurisdictional home for the case. Judge Claire Kelly also issued an order in the case reserving its decision on the jurisdiction questions in the case but extending the deadline for the U.S. to respond to the amended complaint until Aug. 31. The case is over whether NJA has to issue customs user fees to its passengers (NetJets Aviation, Inc. v. U.S., CIT #21-00142).

Husch Blackwell and one of its international trade partners, Jeffrey Neeley, committed legal malpractice when they went too far in a filing at the Court of International Trade subjecting imports of wood furniture to antidumping duties, Wego Chemical Group said in an Aug. 9 complaint at the U.S. District Court for the Southern District of New York. A motion filed by Neeley mistakenly requesting an injunction be lifted on all entries subject to an antidumping duty period led to Wego needlessly paying over $325,000 in customs duties, the company said (Wego Chemical Group Inc. v. Husch Blackwell LLP et al., S.D.N.Y. #21-06689).

The Commerce Department properly calculated antidumping mandatory respondent LG Chem's cost of production when calculating constructed price, the Court of International Trade said in an Aug. 13 opinion. The case was over the antidumping duty investigation into acetone from South Korea. Judge M. Miller Baker held that Commerce's decision to spurn LG Chem's method for calculating the cost of the materials for making acetone in favor of the other mandatory respondent, Kumho P&B Chemical's, method was legal. This decision led to a higher antidumping rate for LG Chem in the investigation's final determination, sticking the exporter with a 25.05% rate.

The Commerce Department backed its own remand results in two Court of International Trade cases, citing the plaintiffs' agreement that the remand complied with the court's orders in two comments on the redeterminations. The cases, one challenging an antidumping duty scope ruling on a subset of steel trailer wheels from China, and the other challenging the countervailing duty scope ruling for the same goods, concern the date of imposition for the duties. In May, the court told Commerce to move the imposition date for the duties to the date of publication of the final determination rather than the date of the preliminary determination (see 2105180062). Commerce did so in its remand results (see 2106160026), also indicating that it will issue instructions to CBP to exclude plaintiffs Trans Texas Tire and Zhejiang Jingu Co.'s entries of physical vapor deposition chrome process wheels (PVD chrome wheels) entered between Feb. 25, 2019, and June 24, 2019, from the scope of the investigation (Trans Texas Tire, LLC v. United States, CIT #19-00188, -00189).

Printed circuit board assembly importer Triumph Engine Control Systems moved to overturn the dismissal of four of its cases issued by the Court of International Trade in an Aug. 9 filing. Claiming that it clears the standard for reversing dismissals due to lack of prosecution set in the Supreme Court case Pioneer Inv. Services Co. v. Brunswick Associates Ltd. Partnership, the importer requested an extension of the time to remain on the Customs Case Management Calendar (Triumph Engine Control Systems, LLC v. U.S., CIT #19-00108, #19-00109, #19-00110, #19-00130).

Plaintiffs, led by American Pacific Plywood, that stand accused of evading antidumping and countervailing duty orders on hardwood plywood from China vigorously challenged CBP's finding of evasion, in an Aug. 5 brief backing their motion for judgment at the Court of International Trade. In another case going after CBP's alleged violations of due process in Enforce and Protect Act investigations (see 2107010085), the plaintiffs argued that CBP's missteps are not merely procedural mistakes, but rather a "failure of essential process that led to profound harm." The violations are so egregious that they "would be unacceptable in any country that prides itself on democratic process -- and for the United States, they are a travesty," the brief said (American Pacific Plywood, Inc. et al. v. United States, CIT Consol. #20-03914).