The Court of International Trade in a Sept. 13 opinion found the Commerce Department reasonably used adverse facts available in a countervailing duty case related to the Chinese government's failure to submit certain information about the Export Buyer's Credit Program. Marking a clear departure from the trade court's numerous past rulings on the subject, Judge M. Miller Baker said Commerce reasonably explained why it needed the information from the Chinese government to verify that the respondents and their U.S. customers did not use the EBCP. The judge further sided with the U.S. over its positions that acrylic polymer can be used as a stand-alone primer and that the agency can average all freight routes to establish a world market benchmark for ocean freight.

The Court of International Trade in a Sept. 13 order upheld the Commerce Department's remand results in a case brought by respondent Both-Well (Taizhou) Steel Fittings Co. over a countervailing duty review of forged steel fittings from China. Judge Claire Kelly previously sent back Commerce's use of adverse facts available based on the Chinese government's unwillingness to submit certain information related to China's Export Buyer's Credit Program. The judge said that if the agency wanted to keep using AFA it had to attempt to verify the non-use of the program by looking at evidence from Both-Well and its U.S. customers. Commerce did so on remand, finding that the respondent didn't benefit from the EBCP, dropping the company's CVD rate from 25.90% to 15.36%.

The Court of Appeals for the Federal Circuit in a Sept. 8 opinion denied a group of domestic steel manufacturers the right to intervene in six cases challenging denied exclusions to Section 232 steel and aluminum tariffs. Judges Kimberly Moore and Todd Hughes affirmed the Court of International Trade's ruling that the domestic producers did not have a legally protectable interest in the case, though they parted from the trade court's position in ruling that the manufacturers established standing to intervene. While they had standing, the lack of a legally protectable interest stunted their bid to join the litigation. Judge Pauline Newman dissented from the majority opinion, ruling the manufacturers have clear economic interests in the tariff exclusion requests, establishing their right to intervene.

The Court of International Trade in a Sept. 8 order upheld the Commerce Department's remand results in a scope case on the antidumping duty order on carbon steel butt-weld pipe fittings from China originally brought by Vandewater International. Following an initial decision from Judge Leo Gordon, Commerce continued to find that Vandewater's steel branch outlets used in fire protection systems fall under the scope of the AD order using an analysis of the (k)(2) criteria. In the newest opinion, Gordon said despite the plaintiffs' arguments that show the record could back a finding that the outlets are excluded from the order, the court cannot find that Commerce acted unreasonably in its conclusion using the (k)(2) factors.

The Court of Appeals for the Federal Circuit in a Sept. 6 opinion said the Court of International Trade was right to toss a suit from two importers seeking to retroactively apply Section 301 tariff exclusions. The trade court held that it did not have subject-matter jurisdiction under Section 1581(i) but would have had jurisdiction under Section 1581(a) had the importers, ARP Materials and Harrison Steel Castings, filed protests with CBP. The Federal Circuit agreed, holding that the suit contests CBP's assessment of the duties and not USTR's exclusions and the importers had ample chance to file a protest as ARP's exclusions were granted months before the deadline to file a protest for the relevant entries. The court ruled that Harrison's entries, which were granted exclusions beyond the 180-day deadline to file a protest, also would have had the chance to request a refund via a post summary correction, making Section 1581(a) the proper jurisdiction for the challenge.

The Court of International Trade in a Sept. 2 opinion sent back parts and upheld parts of the Commerce Department's final determination in the countervailing duty investigation of phosphate fertilizers from Russia. Judge Jane Restani found that Commerce erred in adjusting the natural gas benchmark price by adding the relevant 20% VAT and 5% import duty and misapplying its methodology in calculating EuroChem's total sales by relying on a number given by EuroChem which included sales from eight producers and input suppliers to export trading company EuroChem Trading Rus. The judge also sent back Commerce's cut-off date for measuring subsidies in the Russian economy.

The Court of International Trade in an Aug. 30 opinion upheld the Commerce Department's remand results in the 2016-17 administrative review of the antidumping duty order on hot-rolled steel flat products from Australia. On remand in the case, Commerce dropped its reliance on adverse facts available based on the respondent BlueScope Steel's U.S. sales quantity and value reporting data. The move dropped the dumping rate for BlueScope from 99.20% to 4.95%.

The Commerce Department cannot select just one mandatory respondent in an antidumping review where multiple exporters have requested a review, the Court of Appeals for the Federal Circuit ruled in an Aug. 29 opinion. Reversing a decision from the Court of International Trade, Judges Pauline Newman, Alvin Schall and Sharon Prost said Commerce's interpretation of the statute finding that it can use only one respondent runs "contrary to the statute's unambiguous language." The judges ruled the agency hasn't shown it to be otherwise reasonable to calculate the all-others rate based on only one respondent and said the directive to find a weighted average gives no reason why it's reasonable to use only a single rate.

The Court of International Trade in an Aug. 29 opinion upheld the Commerce Department's decision to reverse its finding that a particular market situation existed for an input of oil country tubular goods in South Korea. The court previously remanded the PMS determination in the 2017-18 administrative review of the AD order on OCTG as being unsupported by substantial evidence. The agency then flipped its finding, prompting Judge Jennifer Choe-Groves to sustain the remand results. Previously, the judge also sent back Commerce's use of the Cohen's d test to root out masked dumping, but since respondent SeAH Steel Corp. was given a de minimis dumping margin, the issue was moot.

The Commerce Department was right to exclude dual-stenciled standard pipe and line pipe from the antidumping duty order on circular welded carbon steel pipes and tubes from Thailand, the Court of International Trade said in an Aug. 25 opinion. Upholding Commerce's remand results in a scope challenge, Judge Stephen Vaden ruled that no line pipe was made in Thailand when the initial AD investigation was commenced over 40 years ago and no injury finding was made for line or dual-stenciled pipe from Thailand.