The entire U.S. Court of Appeals for the Federal Circuit should consider the question of whether the Commerce Department can make a particular market situation adjustment to the sales-below-cost test when calculating normal value in antidumping duty proceedings, defendant-appellant Welspun Tubular said in a Feb. 8 petition for rehearing en banc (Hyundai Steel Company v. United States, Fed. Cir. #21-1748).
Judges at the U.S. Court of Appeals for the Federal Circuit probed the limits of the president's authority when implementing Section 232 national security tariffs during Feb. 9 oral arguments in a case representing a broad challenge to presidential action under the statute. Questions revolved around what elements, if any, of the process was judicially reviewable, with the plaintiffs, led by USP Holdings, arguing that the report issued by the commerce secretary to the president, which permits the president to impose the tariffs, is a final agency action and thus reviewable under the Administrative Procedure Act (USP Holdings, Inc. v. U.S., Fed. Cir. #21-1726).
The following lawsuits were recently filed at the Court of International Trade:
The Court of International Trade sustained the Commerce Department's remand results in an antidumping duty case after AD separate rate respondent Fine Furniture (Shanghai) Limited said that it received full relief resulting from the liquidation of its entries and a refund of excess duties paid. The case stems from an antidumping duty administrative review of orders on multilayered wood flooring from China. Following multiple court decisions and remand results (see 2107130080), Fine Furniture's case was stayed pending a U.S. Court of Appeals for the Federal Circuit decision, which eventually found that Fine Furniture is not subject to the antidumping duty order. Since the mandatory respondents in the underlying antidumping duty order received de minimis rates in Commerce's final determination, Fine Furniture was removed from the review. This led to the AD duty rate for all separate rate respondents falling to zero percent. No parties opposed the remand results. (Fine Furniture (Shanghai) Limited, et al. v. United States, Slip Op. 22-9, CIT Consol. #14-00135, dated 02/07/22, Judge Timothy Stanceu)
The Commerce Department erred when it found that two countervailing duty review mandatory respondents did not use China's Export Buyer's Credit Program in a countervailing duty investigation, the CVD petitioner, Coalition of American Manufacturers of Mobile Access Equipment, said in a Feb. 8 complaint at the Court of International Trade (Coalition of American Manufacturers of Mobile Access Equipment v. United States, CIT #22-00002).
The Commerce Department cannot rely on adverse facts available in response the Chinese government's failure to provide certain information relating to its Export Buyer's Credit Program in a countervailing duty review, the Court of International Trade said in a Feb. 8 decision. Adding another to a line of decisions striking down the application of AFA in such circumstances, the court said Commerce has not shown why this information is necessary to verify that the CVD respondents, and their U.S. customers, did not use the program.
Court of International Trade Judge Richard Eaton expressed skepticism over the Commerce Department's assumption of 24 working days per month for calculating the surrogate labor rate in an antidumping duty case, during a Feb. 8 oral argument. The Department of Justice backed the use of the 24 working days standard, arguing that it is agency practice to use this number. Since counsel for Commerce at the oral argument could not provide a reason that the 24 working days standard exists, as opposed to a 19 or 20 working day alternative floated by the plaintiff, Eaton said that it should be easy to part with past agency practice as it wasn't an explained action (American Manufacturers of Multilayered Wood Flooring v. United States, CIT #20-03948).
A recent U.S. Court of Appeals for the Federal Circuit decision bolsters the U.S.'s case in a dispute over whether China's provision of electricity qualifies as a countervailable benefit, the Department of Justice said in a Feb. 7 notice of supplemental authority submitted to the Court of International Trade. On Jan. 28, the Federal Circuit said that Commerce can use adverse facts available over the Chinese government's failure to provide information on its price-setting practices in a countervailing duty review concerning its provision of electricity (see 2201280033). In a case brought by Risen Energy Co. related to the subsequent review of the same CVD order on solar cells from China, DOJ told the trade court that the January decision backs its argument (Risen Energy Co., Ltd. v. United States, CIT #20-03912).
The Commerce Department can easily verify non-use of China's Export Buyer's Credit Program (EBCP) in countervailing duty reviews, plaintiff Yama Ribbons and Bows Co. told the Court of International Trade in a Feb. 4 brief. Refuting Commerce's contention that it needed certain information from the Chinese government to verify non-use, which has been struck down by the trade court, Yama said that the agency actually had all it needed to verify that the CVD respondent's U.S. customers didn't use the program (Yama Ribbons and Bows Co., Ltd. v. United States, CIT #21-00402).
The Commerce Department erred by rejecting countervailing duty respondent Uttam Galva's submissions on an affiliated company then hitting the respondent with adverse facts available, the respondent, Uttam Galva Steels Limited, argued in a Feb. 4 brief at the U.S. Court of Appeals for the Federal Circuit. The defendant-appellees in the case, led by Commerce, argued that the agency can reject evidence that detracts from an AFA calculation if it does't have a complete response. But this "abdicates Commerce's responsibility" to look at the substance of detracting information, Uttam Galva said (Uttam Galva Steels Limited v. United States, Fed. Cir. #21-2119).