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).

The Court of International Trade consolidated two cases filed by BASF. The decision to consolidate follows a motion by BASF to combine the cases in the interests of avoiding "unnecessary costs or delay." Both cases involve the same product and the same underlying matter of law: whether a formulated beta-carotene product used by BASF’s customers as a source of provitamin A is classifiable under Harmonized Tariff Schedule subheading 2936.90.01 as “Provitamins, unmixed,” duty free, or subheading 2106.90.99, as “Food preparations not elsewhere specified or included: Other: Other: Other: Other: Other: Other: Other.,” dutiable at the rate of 6.4%. Judge Richard Eaton granted BASF's request, as it would "promote the just, speedy, and less expensive determination of this action." After Feb. 7, the combined cases will proceed as number 12-00422.

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 switched its position on the countervailability of a South Korean sewerage fees program in Feb. 7 remand results, finding that the program is not countervailable. Commerce asked the Court of International Trade for a chance to reconsider the issue itself, ultimately coming back with the position that no benefit was preferred under the sewerage fees program and that the overall subsidy rate for countervailing duty respondent Hyundai Steel Company should be the de minimis rate of 0.49% (Hyundai Steel Company v. United States, CIT #21-00012).

The Court of International Trade remanded on Feb. 8 the Commerce Department's final results of the first administrative review of the countervailing duty order on forged steel fittings from China. In the review, Commerce hit the respondents with an adverse facts available rate over the Chinese government's failure to provide the agency with information over how its Export Buyer's Credit Program works. The court again said that this is an insufficient reason for using AFA since Commerce failed to explain why the information is necessary and why non-use of the program can't be verified by the information submitted by the respondents and their U.S. customers.

There is no exception for business confidential information to the requirement that CBP provide a company subject to an antidumping duty and countervailing duty evasion investigation access to the evidence on which the agency relies, importer Royal Brush told the U.S. Court of Appeals for the Federal Circuit in a Feb. 4 opening brief. CBP's denial of Royal Brush's access to the BCI in the Enforce and Protect Act investigation violated its due process rights and created a "flawed process for adjudicating complaints of duty evasion," the brief said (Royal Brush Manufacturing Inc. v. United States, Fed. Cir. #22-1226).

No lawsuits were recently filed at the Court of International Trade.

The Commerce Department cannot ignore a Court of International Trade's ruling that the evidence on which the agency relied to issue a scope ruling was not valid in its scope redetermination, the Department of Justice said in a Feb. 4 brief. Replying to defendant-intervenor ASC Engineered Solutions' comments on Commerce's decision to exclude certain flanges from the scope of the antidumping duty order on cast iron pipe fittings from China, DOJ said that while it initially agreed with ASC's arguments, it cannot simply disregard the court's decision (MCC Holdings dba Crane Resistoflex v. U.S., CIT #18-00248).

The Court of International Trade reported that it settled all issues via mediation in two cases over the Commerce Department's denial of Section 232 exclusion requests. The mediation, held by Judge Leo Gordon, was ordered after the consolidated plaintiffs' request for a status conference was denied as moot. The plaintiffs wanted the status conference to discuss the availability of a remedy for already-liquidated entries, but the specifics of mediation were not made known (N. Am. Interpipe, Inc. v. U.S., CIT #20-03825) (Allegheny Technologies Incorporated, et al. v. U.S., CIT #20-03923).