The Court of International Trade denied defendant-intervenors California Steel Industries' and Welspun Tubular's bid to stay an antidumping duty case concerning a particular market situation adjustment to a respondent's cost of production for the sales-below-cost test, in a Jan. 21 order. Since the U.S. Court of Appeals for the Federal Circuit already ruled against the practice, Judge Claire Kelly said she couldn't be sure a stay would do anything more than just delay the proceedings of the case.

Contrary to the Jan. 10 notice of supplemental authorities from Section 301 test case lawyers Akin Gump that two recent Court of International Trade decisions bolster their arguments that the Office of the U.S. Trade Representative violated the 1974 Trade Act and 1946 Administrative Procedure Act when it imposed the lists 3 and 4A tariffs on Chinese imports (see 2201110009), “neither decision is ‘pertinent’ nor ‘significant’ to plaintiffs’ claims,” the Department of Justice responded Jan. 20 in a letter. Section 307 of the Trade Act “unambiguously supports that the word ‘modify’ permits an increase in tariffs,” as the government contends in the Section 301 case, DOJ said. “To imply a limitation permitting only a decrease in tariffs would be inconsistent” with Section 307, “and would require adding language that Congress omitted” in the statute, it said. The APA issues discussed in a second decision, Invenergy Renewables LLC v. United States, in which the court found USTR violated the statute by not addressing “significant comments” raised by the public, “are easily distinguishable from this case,” DOJ said. The significant comments that the court determined were unaddressed in Invenergy “concerned the USTR’s authority to withdraw a previously-granted exclusion,” plus “other statutory considerations,” it said. In the Section 301 case, USTR “plainly addressed its statutory authority for issuing List 3 and List 4 and the objective of eliminating China’s unfair trade practices,” it said. “We respectfully submit” that neither decision “constitutes persuasive authority that supports granting judgment for the plaintiffs,” DOJ said. Oral argument is scheduled for Feb. 1.

The COVID-19 pandemic did not give the Commerce Department cover to ignore its statutory obligation to conduct on-site verification in antidumping duty proceedings, the plaintiffs in an ADD case told the Court of International Trade in a Jan. 19 brief. Responding to the Department of Justice's defense of its decision to send an additional questionnaire instead of conducting on-site verification, the plaintiffs, led by Ellwood City Forge Company, said that DOJ's position is not entitled to Chevron deference and that the pandemic did not justify violating the statute (Ellwood City Forge Company v. U.S., CIT #21-00077).

An importer needs to file a protest to claim jurisdiction at the Court of International Trade over protestable CBP decisions, and that includes CBP's assessment of Section 301 tariffs on goods subsequently granted a tariff exclusion, the Department of Justice said in a Jan. 18 brief. DOJ urged the U.S. Court of Appeals for the Federal Circuit to uphold CIT's decision dismissing a lawsuit from ARP Materials and Harrison Steel seeking refunds of the duties, arguing CIT's "residual" jurisdiction under Section 1581(i) does not apply, since the plaintiff-appellants had adequate notice of CBP's actions and actually received Section 301 refunds for some of their entries (see 2109280061) (ARP Materials v. United States, Fed. Cir. #21-2176).

The Court of International Trade improperly applied the "dual burden of proof" when it denied Meyer Corp. "first sale" valuation on its imports of cookware, Meyer told the U.S. Court of Appeals for the Federal Circuit in a Jan. 10 reply brief. The dual burden of proof practice was previously eliminated, so CIT improperly applied this standard when it denied Meyer first sale but sustained CBP's valuation of the imports based on their second sale rate, Meyer said (Meyer Corporation v. United States, Fed. Cir. #21-1932). "Despite its prodigious length (120 pages), the CIT's opinion consists mainly of a recitation of the parties' proposed post-trial findings and contains very little by way of legal analysis," the company said.

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The U.S. Court of Appeals for the Federal Circuit will conduct all scheduled arguments for the February 2022 session by videoconference, the court said in a Jan. 18 notice. However, only arguing counsel will have access to the video call, while the general public may only livestream the argument's audio. No motions for access beyond arguing counsel will be entertained, the court said.

The Department of Justice backed the Commerce Department's decision to hit antidumping duty review respondent Jilin Forest Industry Jinqiao Flooring Group with the China-wide dumping rate despite its full cooperation in the review, in a Jan. 14 brief at the Court of International Trade. DOJ said that after looking at Jinqiao Flooring's ownership makeup, the respondent failed to rebut the presumption of government control and that the U.S. Court of Appeals for the Federal Circuit has upheld Commerce's bid to use an adverse facts available rate for a separate rate respondent despite its full cooperation (Jilin Forest Industry Jinqiao Flooring Group v. U.S. , CIT #18-00191).

Puerto Rican importer Ricardo Cruz Distributors told the Court of International Trade in a Jan. 13 complaint that CBP imposed the wrong countervailing duty rate on an entry of its tires since the seller of the tires was given an individual CVD rate in the past. The exporter of the tires at issue was Chinese manufacturer Tyrechamp, which was given an individual CVD rate of 15.56% in 2016. The company admitted to placing the wrong company name under the "Manufacturer ID" section in one of its forms to CBP, but still argues that the lower rate should nonetheless be applied (Ricardo Cruz Distributors Inc. v. United States, CIT #22-00006).

The Commerce Department dropped its reliance on facts available in an antidumping duty investigation after conducting remand proceedings at the Court of International Trade, finding a questionnaire it issued in lieu of a site visit during the coronavirus pandemic "satisfies the verification requirement" laid out in the statute, in remand results filed Jan. 12 at the Court of International Trade (Ellwood City Forge Company v. United States, CIT #21-00007).