Importer MTD Products Inc. argued in its Dec. 8 complaint at the Court of International Trade that its lawn mower engines qualify for duty-free treatment and, in the alternative, an exclusion to the Section 301 China tariffs, and that CBP improperly denied its protest claiming as much. The importer brought in spark-ignition reciprocating or rotary internal combustion piston engines from China, each valued at less than $180, that are used in walk-behind, riding and zero-turn riding lawn mowers (MTD Products Inc. v. United States, CIT #21-00036).
Court of International Trade activity
The Court of International Trade consolidated two cases challenging the Commerce Department's final results in the third administrative review of the antidumping duty order on hot-rolled steel flat products from Australia, in a Dec. 9 order. One case was brought by U.S. Steel Corp. and the other by Australian company BlueScope Steel Ltd., a mandatory respondent in the review. BlueScope challenged Commerce's decision not to deduct discounts and rebates from BlueScope's normal value when setting its dumping rate, arguing that this decision went against the agency's past regulations and was based on an inaccurate understanding of BlueScope's data (see 2109280038). U.S. Steel, though, said that Commerce violated the law when it found that BlueScope did not reimburse its U.S. affiliate for antidumping duties (see 2109210081). The cases were consolidated under U.S. Steel's action (United States Steel Corporation v. United States, CIT #21-00528).
The parties appealing a Court of International Trade decision, led by Shanxi Hairui Trade Co., filed a confidential appendix that is not in compliance with the Court of Appeals for the Federal Circuit, the appellate court said in a Dec. 7 notice. The confidential version of the appendix doesn't include the "pertinent excerpts of any statutes imposing confidentiality or the entirety of any judicial or administrative protective order" at the beginning of the filing. Further, the document doesn't have the required proof of service, the notice said. The appellants are challenging the Commerce Department's final results in the administrative review of the antidumping duty order on steel nails from China, in which Commerce used adverse facts available (Shanxi Hairui Trade Co., Ltd. v. United States, Fed. Cir. #21-2067).
The issue of whether a South Korean port usage rights program is countervailable is not moot just because the Commerce Department has now assigned a de minimis rate to the countervailing duty respondent, Hyundai Steel Co. argued in a Dec. 8 reply brief at the Court of International Trade. Rather, since Commerce can continue subjecting Hyundai to countervailing duty reviews based on this port usage rights program, the question is key for Hyundai, despite the fact that it is not being hit with CV duties this time around, the company said (Hyundai Steel Company v. United States, CIT #20-03799).
The Commerce Department and the International Trade Commission published the following Federal Register notices Dec. 9 on AD/CV duty proceedings:
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).
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 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.
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.
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).