Jacob Kopnick

Steel importer Transpacific Steel, along with several Turkish steel makers, wants a full court rehearing at the U.S. Court of Appeals for the Federal Circuit of a panel decision to uphold President Donald Trump's Section 232 tariff hike on Turkish steel. In an Aug. 23 petition for panel rehearing and rehearing en banc, Transpacific argued that the panel's majority failed to impose the congressionally mandated limitations to the president's power in Section 232. Further, the majority improperly rejected the plaintiff appellees' equal protection claims, the petition said (Transpacific Steel LLC, et al. v. United States, Fed. Cir. #20-2157).

The Commerce Department's rejection of questionnaire responses in antidumping and a countervailing duty cases filed 21 and 87 minutes late was unreasonable and a "miscarriage of justice," Turkish steel exporter Celik Halat ve Tel Sanayi said in two Aug. 24 reply briefs. In particular, defendant-intervenors, led by Insteel Wire Products Company, wrongly speculated about Celik Halat's counsel's awareness of the time zone at his residence in Utah, leading to three entire days for which Celik Halat had to submit the questionnaire responses. Rather, the filing deficiencies stem from an emergency medical procedure and not a time zone mishap, Celik Halat said (Celik Halat ve Tel Sanayi A.S. v. United States, CIT #21-00045, #21-00050).

The Commerce Department did not violate the law when it included sample sales of quartz surface products from Pokarna Engineered Stone Limited in an antidumping investigation, the Court of International Trade said in an Aug. 25 order. Judge Leo Gordon said that there is nothing in the statute that requires Commerce to perform a bona fide sales analysis on paid U.S. sample sales during an antidumping investigation.

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

A penalty action against the owner and director of importer Atria, Kevin Ho, should not be dismissed even though the U.S. served his counsel with the wrong summons and complaint, the Department of Justice said in an Aug. 17 reply brief. Rather, the court should grant the DOJ's motion to expand Ho's time of service, allow Ho to stipulate to his liability in line with his guilty plea in a related criminal case, grant DOJ's motion to consolidate the two actions against Ho and stay the consolidated matter until Ho serves his prison sentence, the brief said (United States v. Chu-Chiang "Kevin" Ho, et al., CIT #19-00038).

The Department of Justice, in an antidumping case in the Court of International Trade initially filed by Fine Furniture (Shanghai), requested CIT sustain the Commerce Department's remand results, in Aug. 24 comments. The case stems from an antidumping duty administrative review 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 AD 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 (Fine Furniture (Shanghai) Limited, et al. v. U.S., CIT Consol. #14-00135). Most recently, the plaintiffs all signed off on the remand results, leaving no party to challenge the redetermination and nothing further to resolve in the litigation (see 2108110023).

The Commerce Department properly used the expected method in an antidumping duty administrative review when it averaged two adverse facts available rates to apply to the non-individually examined respondents, the Department of Justice argued in an Aug. 16 filing at the Court of International Trade. Due to a U.S. Court of Appeals for the Federal Circuit decision, Albemarle Corp. & Subsidiaries v. United States, which held that the antidumping duty rate for mandatory respondents should be found to be representative unless enough evidence shows otherwise, Commerce properly used the expected method to find the non-individually examined respondents' rate, it said (PrimeSource Building Products, Inc., et al. v. United States, CIT Consol. #20-03911).

Plaintiff Nucor Corporation mischaracterized, oversimplified and took the Commerce Department's remand results out of context in its comments on a submission in a case stemming from the agency's countervailing duty investigation on carbon and alloy steel cut-to-length plate from South Korea, the Department of Justice said in Aug. 18 comments at the Court of International Trade, backing the remand redetermination. DOJ continued to back Commerce's contention that the South Korean government did not provide a countervailable subsidy to producers of hot-rolled steel through cheap electricity. Contrary to what Nucor's comments assert, Commerce adhered to the statute when completing its less-than-adequate remuneration analysis in the CVD case and properly accounted for the Korean Power Exchange's role in the electricity market, DOJ said (POSCO, et al. v. U.S., CIT #16-00227).

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

CBP cannot limit the amount of drawback that can be claimed on excise taxes, the U.S. Court of Appeals for the Federal Circuit said in an Aug. 23 opinion upholding the Court of International Trade's ruling. Holding that the CBP regulation defied the "clear intent of Congress," the appellate court ruled against the government appeal of CIT's decision, providing a win for the plaintiffs, the National Association of Manufacturers and The Beer Institute.