COVID-19 manufacturing complications distorted both the timing and the volume of imports over the post-petition period in antidumping and countervailing duty investigations into small vertical shaft engines from China, and the International Trade Commission should not have made findings of critical circumstances that led to imposition of retroactive AD/CV duties in the eventual AD/CVD orders, U.S. importer MTD Products Inc. alleged in a May 28 complaint filed in the Court of International Trade. Foreign manufacturers could not produce the subject merchandise for a "significant portion of the pre-petition period due to COVID-19-related plant closures," MTD said. "Further, COVID-19-related closures in the United States, in addition to commercial uncertainties regarding Petitioner’s long-term viability and inability to meet a spike in domestic demand artificially inflated import volumes over this period," the complaint said. "These extraordinary circumstances significantly distorted both the timing and volume of imports over the post-petition period, the first two factors the Commission must consider when making a finding of critical circumstances." (MTD Products Inc v. United States, CIT #21-00264).

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 Court of International Trade sustained the Commerce Department's remand results which used partial adverse facts available to raise the antidumping rate for Indian stainless steel bar exporter Venus Wire Industries Pvt., in a June 2 opinion. After receiving remand instructions from Judge Mark Barnett on Nov. 11 to further explain its use of partial AFA, Commerce did just that, but also raised the AD rate for Venus from 5.35% to 24.60%. Venus contested the results, arguing that Commerce exceeded the scope of its own voluntary remand request and only ever meant to establish a "higher, punitive margin." Barnett rejected these claims, upholding Commerce's determination.

The Court of Appeals for the Federal Circuit on June 2 upheld a Court of International Trade ruling that S.C. Johnson's Ziploc brand reclosable sandwich bags are classified under Harmonized Tariff Schedule heading 3923 as articles for the conveyance or packing of other goods, dutiable at 3%, and not in heading 3924 as plastic household goods, which are eligible for duty-free GSP treatment. Since the bags could fall under either heading 3923 or 3924, heading 3923 is the correct home for the bags since its terms are "more difficult to satisfy and describe the article with a greater degree of accuracy and certainty," the Federal Circuit said in upholding CIT's decision.

The Court of International Trade in a June 2 opinion remanded an antidumping administrative review on multilayered wood flooring from China back to the Commerce Department after a related ruling in the Court of Appeals for the Federal Circuit found the mandatory respondents to not be subject to the AD order. In the remand, Commerce is to determine a new rate for the separate rate respondents in the review now that the existing 0.79% dumping margin for the mandatory respondents no longer applies.

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).

Tool retailer Stanley Black & Decker filed a lawsuit in the Court of International Trade, hoping to piggyback on a recent decision striking down the Section 232 tariffs on steel and aluminum "derivatives," according to a May 27 complaint. The decision, PrimeSource Buildnig Products, Inc. v. United States, et al., CIT #20-00032, found that President Donald Trump violated procedural time limits when expanding the Section 232 tariffs onto derivative products (see 2104050049). A three-judge panel at the court made the decision, ultimately finding that only PrimeSource would be granted refunds for payments made toward the 25% steel derivatives tariffs. While the decision stopped imposing the tariffs for imports and unliquidated goods, it found that it would only grant refunds on a per-case basis. The company is seeking a refund with interest for any payments made toward the duties.

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 U.S. Court of Appeals for the Federal Circuit should rule that pencil importer Prime Time exhausted its administrative options by asking the Commerce Department five times for "gap-filling" information that was necessary to determine the correct antidumping duty rate, the company said in a May 26 filing with the CAFC. The company "seeks remand here, directing the Trade Court to instruct Commerce to place gap-filling information only Commerce can access on the record to give Prime Time the meaningful opportunity provided by the statute to show the margin for its entries to be less than the highest prior margin," it said in its opening brief.