Jacob Kopnick

The Commerce Department will review whether Russia is a non-market economy for antidumping duty purposes as part of a less-than-fair-value investigation into urea ammonium nitrate from the country, Commerce said in a notice initiating the investigation. Domestic producer CF Industries Nitrogen and its subsidiaries alleged that Russia was a nonmarket economy in the petition underlying the investigation.

In dueling briefs filed to the Court of International Trade in a case over the president's decision to reverse a safeguard exemption on bifacial solar panels, the Department of Justice and plaintiffs led by the Solar Energy Industries Association argued over whether a recent U.S. Court of Appeals for the Federal Circuit opinion is relevant to their case. The decision, Transpacific Steel LLC et al. v. U.S., found that the president could hike Section 232 national security tariffs beyond time limits imposed by the statute (see 2107130059). DOJ in its brief said that the decision lends itself to ruling in the government's favor in the case of the solar panels. SEIA said that the decision has "little relevance" to its case since the decision deals with "an entirely different statute," in its letter (Solar Energy Industries Association et al. v. United States, CIT #29-03941).

The Commerce Department wants another shot to consider the Section 232 tariff exclusion requests filed by Allegheny Technologies Incorporated after the agency initially rejected them. In a July 21 motion for voluntary remand in the Court of International Trade, Commerce said that in light of a recent CIT decision, JSW Steel, Inc. v. United States, which found that Commerce's exclusion request denials were "devoid of explanation and frustrate judicial review," the agency needs to take another look at its denials (Allegheny Technologies Incoporated et al. v. United States, CIT #20-03923).

The Court of International Trade should dismiss an importer's challenge of CBP's deemed exclusion of its apparel imports because the protest was filed the day before the apparel was actually deemed excluded, the Department of Justice said in a July 19 brief backing the motion to dismiss. Due to this premature filing, DOJ said the court lacks Section 1581(a) jurisdiction on the matter (Alive Distributor Inc. v. United States, CIT #21-00236).

The World Trade Organization updated on July 20 a list of trade facilitation measures due to be implemented by the end of next year, released at the meeting of the Committee on Trade Facilitation. From July 1 to Dec. 31, 2021, 136 facilitation commitments have been agreed to by 36 different WTO members, which include speeding up the release of perishable goods and publishing trade procedures. Until the end of 2022, there are 389 implementation commitments for 74 members. Deadlines are based on members' own implementation schedules. The list does not include any commitments made by the U.S.

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

The Court of International Trade in a July 20 order granted the Commerce Department's request for a partial voluntary remand despite the mandatory respondent's objections. Judge Jane Restani allowed Commerce to take another look at its final results in the countervailing duty investigation into utility scale wind towers from Indonesia to reconsider whether it “improperly included an export subsidy in its upstream subsidy calculation.” The issue was broached with the court “some time ago,” so a simple decision on the matter appears likely, the judge said (PT. Kenertec Power System v. U.S., CIT #20-03687). The government's remand results are due Aug. 19, and the parties have until Aug. 23 to notify the court if a supplemental briefing is required, the order said.

The Commerce Department only needs to show the potential for government control to deny separate rate status to a non-market economy exporter, the Court of International Trade said in a July 6 opinion made public on July 21. "A puppet master is no less in control when the strings are slack," CIT Judge M. Miller Baker said in the opinion. To be granted an individual rate, the respondent must prove that its operations are devoid of de facto government control. Since I.D.I. International Development and Investment Corporation failed to do, it failed to obtain an individual rate, the judge said.

The Commerce Department properly found that Shelter Forest International Acquisition's hardwood plywood exports were not later-developed merchandise and therefore did not circumvent the antidumping and countervailing duty orders on hardwood plywood from China, the Court of International Trade said in a July 21 opinion. After initially finding that Shelter Forest's plywood exports were circumventing the orders, Commerce flipped its determination after an initial CIT remand.

The Court of International Trade remanded the Commerce Department's particular market situation adjustment to sales-below-cost test and use of partial adverse facts available in a July 9 decision made public on July 19. As the court has repeatedly held, there is no statutory authority for Commerce to make a PMS adjustment to the cost of production for a sales-below-cost test when using normal value, leading to Judge Claire Kelly to send the case back to the agency for further consideration.