Plaintiffs challenging an antidumping review, led by Hung Vuong Corporation, will appeal an October Court of International Trade opinion upholding the Commerce Department's use of adverse facts available, the plaintiffs said in a Dec. 8 notice of appeal. The decision, which came in a case over an administrative review of the antidumping duty order on frozen fish fillets from Vietnam, will be appealed to the U.S. Court of Appeals for the Federal Circuit. Commerce's use of AFA was originally remanded by the court, but was then sustained after swapping out the grounds on which the AFA finding was based (see 2110130031). The agency ultimately based the AFA finding on Hung Vuong's failure to retain source documents on feed consumption, production records and sales correspondence, and Hung Vuong's failure to report factors of production data on a control number-specific basis (Hung Vuong Corp., et al. v. United States, CIT #19-00055).

The Court of International Trade greenlighted the Department of Justice's second motion for an extension to file comments on the remand results in a Dec. 8 order submitted in a case over an antidumping scope ruling. Plaintiff-intervenor SIGMA Corporation opposed the bid, arguing that a further delay will prejudice it. SIGMA currently is wrapped up in parallel litigation in the U.S. District Court for the Central District of California, where the defendant-intervenor in the CIT case, Island Industries Inc., sued SIGMA and others, arguing that the companies violated the False Claims Act by not paying antidumping duties on their welded outlet imports. While a jury verdict has been entered, SIGMA is seeking a new trial since the verdict was "against the weight of the evidence," SIGMA said (Vandewater International Inc., et al. v. United States, CIT #18-00199).

The Court of International Trade upheld the Commerce Department's switch from Thai to Bulgarian surrogate data and Thai to Mexican surrogate data for a key solar cell input in two nearly identical Dec. 8 opinions on two separate antidumping duty reviews. After previously finding that Commerce's reliance on the Thai data was improper, the court had directed Commerce to either switch to another option or further explain its position. The agency reversed course in both cases, finding no objection by any party, including any of the plaintiffs, led by Solarworld Americas, Inc. and Canadian Solar International, respectively.

CBP unfairly denied importer Compressed Air Systems' protest showing that it overpaid duties and fees for its air compressor and vacuum pump part entries, CAS argued in its Dec. 7 complaint at the Court of International Trade. Due to a clerical error committed by the customs broker, the entries were overvalued, CAS said. CBP then refused to fix the error after the importer protested CBP's liquidation of the entries, leading the company to file suit with the trade court (Compressed Air Systems, LLC v. CBP, CIT #21-00615).

The Commerce Department went too far when hitting antidumping respondent BlueScope Steel Ltd. with total adverse facts available in an AD review, the Court of International Trade said in a Nov. 30 opinion, made public on Dec. 8. Remanding the case to Commerce, Judge Richard Eaton said that Commerce failed to back its AFA finding for two reasons: it did not show that BlueScope's responses created a gap in the record over its U.S. sales quantity and value report, and failed to give notice of deficient responses relating to reconciling BlueScope's U.S. and home market sales information with prior submissions.

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

The Court of International Trade on Dec. 7 suspended liquidation of all unliquidated entries involved in a case challenging a decision by President Donald Trump to revoke a tariff exclusion granted to bifacial solar panels. The liquidation suspension comes after the trade court struck down the tariff exclusion withdrawal, finding it to be a clear misconstruction of the law since the relevant law only permits trade liberalizing alterations to existing safeguard measures (see 2111160032). After the ruling, the plaintiffs, led by the Solar Energy Industry Association, filed an unopposed motion for an order suspending liquidation, urging the court to halt liquidation until all appeals are final. Without such action from the court, it is possible that many of the subject entries will have liquidated and become final, the motion said (Solar Energy Industries Association, et al. v. United States, et al., CIT #20-03941).

The Court of International Trade partially sided with solar cell importer Aireko Construction, instructing CBP to properly liquidate its entries in accordance with the Commerce Department's instructions, but ruled against Aireko by finding that the importer did not properly challenge the instructions themselves. In a Dec. 7 opinion, Judge Claire Kelly said that CBP needs to correct its error by applying antidumping and countervailing duty rates different from those listed in Commerce's instructions but that Aireko failed to launch a challenge under Section 1581(i) -- CIT's "residual" jurisdiction -- to challenge the instructions.

The Court of International Trade cannot set aside case law finding that subassemblies do not qualify for the finished merchandise exclusion in antidumping and countervailing duty order scope rulings, Judge Stephen Vaden said in a Dec. 6 opinion. Siding with the Commerce Department over plaintiffs China Customs Manufacturing and Greentec Engineering, the court said the plaintiffs' solar roof mountings fall within the scope of the AD/CVD orders on aluminum extrusion from China.

The Court of International Trade on Dec. 8 sustained the Commerce Department's fourth remand results in a case over an administrative review of the antidumping duty order on crystalline silicon photovoltaic cells from China, covering entries from 2013-14. Judge Claire Kelly upheld Commerce's switch to valuing a key solar cell input using Bulgarian imports rather than Thai imports after the court previously said the agency's use of the Thai surrogate data was improper. Under "respectful protest," Commerce used the Bulgarian data, and none of the plaintiffs, led by Solarworld Americas, Inc., objected.