Jacob Kopnick

Turkish steel exporter Celik Halat ve Tel Sanayi accused the Commerce Department of a "severe abuse of discretion" by rejecting entire questionnaire responses because certain parts were filed 21 minutes and 87 minutes late in an antidumping and a countervailing duty investigation, respectively. Celik Halat says Commerce should not have applied adverse facts available to its exports of prestressed concrete steel wire strand from Turkey due to the late filings in two May 28 motions for judgment. (Celik Halat ve Tel Sanayi A.S. v. United States, CIT #21-00045, #21-00050).

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

South Korean wind tower maker CS Wind didn't receive any special benefit from the Import Duty Exemptions on Raw Materials for Exported Goods program and actually overreported information on its raw material inputs, making the application of adverse facts available improper, the Department of Justice argued. In a May 26 reply brief, DOJ responded to a challenge from the Wind Tower Trade Coalition claiming that the Commerce Department erred in not applying AFA to CS Wind in a countervailing duty investigation of utility-scale wind towers from Vietnam. WTTC argued that certain inputs of steel plate, a raw material in the wind towers, could have actually been imported instead of made in Vietnam (Wind Tower Trade Coalition v. United States, CIT #20-03692).

The Department of Justice is debating with Chinese cabinet exporter Delian Meisen Woodworking Co. over whether the Commerce Department can construe false advertising materials as grounds to apply adverse facts available in antidumping proceedings. In an April 5 revised response revised again on May 26, DOJ argued that Meisen's inability to explain a discrepancy between its U.S. sales price and factors of production information resulting from false advertising lawfully led to Commerce applying AFA. Meisen in its corrected reply is fighting to establish that Commerce's antidumping investigations must be limited to the actual factors of production used to make the subject merchandise, lest AD proceedings be used to “take responsibility for enforcing a wide variety of U.S. laws and unfair business practices under the antidumping laws” (Dalian Meisen Woodworking Co., Ltd. v. United States, CIT #20-00109).

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

The Department of Justice wants a stay in a case involving the Commerce Department's use of its non-market economy policy, arguing that issues in a related appeals court case have implications for the case in the Court of International Trade. In a May 25 motion, DOJ argued that since the Federal Circuit case, China Manufacturers Alliance, LLC v. United States, Fed. Cir. #2020-1159, deals with whether the statute authorizes Commerce to apply a China-wide rate to an exporter that failed to show freedom from government control in an antidumping investigation, the outcome of the case will "likely impact the outcome of this remand" (Jilin Forest Industry Jinqiao Flooring Group Co., Ltd., v. United States, CIT #18-00191). In the CIT case, the court remanded an antidumping investigation on multilayered wood flooring, finding that the agency's determination that Chinese exporter Jilin Forest Industry Jinqiao Flooring Group was de facto controlled by the Chinese government lacked substantial evidence (see 2104300079). The decision took issue with Commerce's application of the China-wide rate to Jilin, given that Commerce's NME policy was meant to incentivize greater compliance and Jilin fully complied with all Commerce requests.

The Commerce Department should further explain its decision to not verify customer self-certifications establishing non-use of China's Export Buyers Credit Program in a countervailing duty case, finally moving beyond the "endless loop" brought by the issue, Judge Timothy Reif of the Court of International Trade said in a May 26 opinion. In a saga reminiscent of the film Groundhog Day, according to Reif's opinion, the EBCP has been the subject of "intense litigation," prompting Reif to ask for an answer from Commerce for why it refuses to verify the customer self-certifications, leading to the application of adverse facts available for the subject goods relating to the EBCP.

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

A set of domestic steel producers will not be allowed to intervene in six challenges to the Commerce Department's denials of Section 232 tariff exclusions to steel importers, following a May 25 decision from the Court of International Trade. "Nevertheless," said Judge Miller Baker as he denied their motions to intervene, "the Court reiterates its willingness to entertain motions to appear as amici curiae."

The Commerce Department erred in its second remand results in an antidumping case when it departed from the "expected method" for calculating an all-other respondent AD duty rate, defendant-intervenors, led by Catfish Farmers of America, said in comments on the remand results dated May 24. The industry trade group argued that Commerce misunderstood CIT's remand directions when it switched to the "other reasonable method" approach under protest. Instead, the court sought only further explanation, it said (GODACO Seafood Joint Stock Company, et al., v. United States, CIT #21-00063).