The Commerce Department's use of Thai surrogate data in two antidumping administrative reviews of crystalline silicon photovoltaic cells from China was not properly supported, the Court of International Trade said in two nearly identical July 28 decisions. Judge Claire Kelly, penning the opinions, sought to bring Commerce's practice in line with a U.S. Court of Appeals for the Federal Circuit decision that called unreasonable the agency's “bookend methodology” in selecting the surrogate data. Stopping short of instructing Commerce to cease its use of the Thai data, Kelly found that the agency's rationale was unsupported and remanded the surrogate value selection for further consideration or explanation.

A Court of International Trade case seeking Section 301 tariff exclusions for frozen tillapia fillets from China should be stayed until litigation is completed in the massive Section 301 litigation, the Department of Justice said in a July 26 motion to stay. The case, brought by Global Food Trading Corp., featured two protests on CBP's handling of the entries: one seeking reclassification of the fillets under Harmonized Tariff Schedule subheading 0304.61.00 and another seeking the Section 301 exclusions under secondary subheading 9903.88.43. CBP approved the first protest but denied the second. DOJ now requests a stay of litigation over the second protest until a decision is reached and all appeals are concluded in the broader Section 301 challenge involving over 3,500 separate complaints. "It would be an inefficient use of the parties’ and the Court’s resources to litigate the defenses to the Second Cause of Action now, when the merits underlying plaintiff’s claim are being litigated in a separate proceeding, and have not yet come to finality," the motion said (Global Food Trading Corp. v. United States, CIT #21-00263).

The Commerce Department sought a voluntary remand in another Court of International Trade case over Section 232 tariff exclusion denials, on July 26, offering a remand schedule of four tranches, with the fourth to be submitted 325 days after a potential remand order. The case was brought by California Steel Industries, which challenged 193 exclusion request denials from Commerce and then offered the four-tiered remand schedule to address logistics concerns (California Steel Industries, Inc. v. United States, CIT #21-00015). The voluntary remand motion is one of many offered by Commerce which, following the JSW Steel, Inc. v. United States CIT decision, has been remanding other Section 232 exclusion request challenges (see 2107230038). Asked if it's the agency's policy to issue blanket rejections of the exclusion requests and then seek voluntary remands in CIT cases, a Commerce spokesperson said, "The Commerce Department does not comment on matters currently in litigation. The Bureau of Industry and Security reviews each exclusion request on a case-by-case basis."

The Commerce Department should have disregarded petitioners' claims in a countervailing duty investigation on silicon metal from Kazakhstan, said sole respondent to the investigation Tau-Ken Temir in a July 21 brief in the Court of International Trade. The petitioners' conflict of interest claim "lacked merit, not even colorable merit," to the extent that Commerce should have found the petitioners were interfering in the investigation, TKT said. The exporter seeks to have the court throw out Commerce's rejection of its questionnaire responses (Tau-Ken Temir LLP et al. v. United States, CIT #21-00173).

Trade Law Daily is providing readers with some recent top stories. All articles can be found by searching on the title or by clicking on the hyperlinked reference number.

The Commerce Department's use of a simple average to calculate a pooled standard deviation as part of the differential pricing analysis in an antidumping duty case was reasonable and permitted under the statute, the U.S. and Mid Continent Steel & Wire said in reply briefs to the U.S. Court of Appeals for the Federal Circuit. Responding to the opening brief filed by the appellants, led by PT Enterprise, both the government and Mid Continent argued that the "academic literature" backed the use of simple averages and that PT's proposed method of weighing the averages cut against the science (Mid Continent Steel & Wire, Inc. v. United States, Fed. Cir. #21-1747).

Court of International Trade Judge Claire Kelly remanded the Commerce Department's use of surrogate data from Thailand in two antidumping administrative reviews into crystalline silicon photovoltaic cells from China in two nearly identical July 28 rulings. The judge sought to bring the cases in line with a U.S. Court of Appeals for the Federal Circuit decision that found that Commerce's methodology was unreasonable. Commerce improperly continued to use Thai import data as a surrogate for data on a key input of the solar cells, Kelly said.

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

The Commerce Department continued to find that Vandewater International's steel branch outlets fall within the scope of the antidumping duty order on carbon steel butt-weld pipe fittings from China in July 23 remand results. Following an October 2020 Court of International Trade opinion finding that Commerce had failed to sufficiently explain its ruling (see 2010190031), the agency took another look at the scope ruling and provided a more thorough explanation of its holding. For instance, Commerce said that the physical characteristics of the steel branch outlets are similar to the characteristics of the carbon steel butt-weld pipe fittings (Vandewater International, Inc. v. United States, CIT #18-00199).

The Commerce Department wants another look at an antidumping review after CBP brought to light new evidence that questioned the accuracy of the mandatory respondent's U.S. sales data and reported affiliates, in a July 20 motion for a voluntarily remand. In the 2017-18 administrative review of the antidumping duty order on passenger vehicle and light truck tires from China, Commerce picked Shandong New Continent as the mandatory respondent and found a zero percent dumping margin for the exporter (Pirelli Tyre Co., Ltd. et al. v. United States, CIT #20-00115). After the review, CBP alerted Commerce as to certain inaccuracies in SNC's reported sales prices on imports of the tires in question. "When potentially new and material evidence comes to light, it is appropriate for this Court to consider a remand to the agency," the motion said. The case was brought by Pirelli Tyre Co., which challenged the country-wide dumping rate it was given in the administrative review, according to its May 2020 complaint.