The Commerce Department wants another shot to consider the Section 232 tariff exclusion requests filed by Allegheny Technologies Incorporated after the agency initially rejected them. In a July 21 motion for voluntary remand in the Court of International Trade, Commerce said that in light of a recent CIT decision, JSW Steel, Inc. v. United States, which found that Commerce's exclusion request denials were "devoid of explanation and frustrate judicial review," the agency needs to take another look at its denials (Allegheny Technologies Incoporated et al. v. United States, CIT #20-03923).
Court of International Trade activity
The Commerce Department only needs to show the potential for government control to deny separate rate status to a non-market economy exporter, the Court of International Trade said in a July 6 opinion made public on July 21. "A puppet master is no less in control when the strings are slack," CIT Judge M. Miller Baker said in the opinion. To be granted an individual rate, the respondent must prove that its operations are devoid of de facto government control. Since I.D.I. International Development and Investment Corporation failed to do, it failed to obtain an individual rate, the judge said.
Justice Department lawyers “are still conferring internally” about modifications proposed by the Section 301 plaintiffs to the July 6 preliminary injunction (PI) order freezing liquidations of unliquidated customs entries from China with lists 3 and 4A tariff exposure, said a government filing late Tuesday at the U.S. Court of International Trade, made “under protest” due to defendants’ opposition to the PI. “A lack of response to any specific proposal should not be interpreted as agreeing to that proposal,” Justice said. The government supports reliquidating, if the plaintiffs win the litigation, any entries that liquidated inadvertently during the PI order’s temporary restraining order (TRO) period due to CBP limitations, it said. “CBP only has the functionality to return liquidated entries to unliquidated status one entry at a time, and very few CBP personnel are knowledgeable and trained to utilize this very limited and extraordinary functionality,” Justice said.
The Commerce Department and the International Trade Commission published the following Federal Register notices July 22 on AD/CV duty proceedings:
The Commerce Department properly found that Shelter Forest International Acquisition's hardwood plywood exports were not later-developed merchandise and therefore did not circumvent the antidumping and countervailing duty orders on hardwood plywood from China, the Court of International Trade said in a July 21 opinion. After initially finding that Shelter Forest's plywood exports were circumventing the orders, Commerce flipped its determination after an initial CIT remand.
The Court of International Trade in a July 20 order granted the Commerce Department's request for a partial voluntary remand despite the mandatory respondent's objections. Judge Jane Restani allowed Commerce to take another look at its final results in the countervailing duty investigation into utility scale wind towers from Indonesia to reconsider whether it “improperly included an export subsidy in its upstream subsidy calculation.” The issue was broached with the court “some time ago,” so a simple decision on the matter appears likely, the judge said (PT. Kenertec Power System v. U.S., CIT #20-03687). The government's remand results are due Aug. 19, and the parties have until Aug. 23 to notify the court if a supplemental briefing is required, the order said.
The Court of International Trade remanded the Commerce Department's particular market situation adjustment to sales-below-cost test and use of partial adverse facts available in a July 9 decision made public on July 19. As the court has repeatedly held, there is no statutory authority for Commerce to make a PMS adjustment to the cost of production for a sales-below-cost test when using normal value, leading to Judge Claire Kelly to send the case back to the agency for further consideration.
The following lawsuits were recently filed at the Court of International Trade:
The Court of International Trade sustained the Commerce Department's negative antidumping and countervailing duty circumvention rulings on certain hardwood plywood products from China in a July 21 opinion, finding that Shelter Forest International Acquisition's goods were not later-developed merchandise. Commerce had reversed its initial finding of circumvention on remand after a previous CIT ruling in the case. The Coalition for Fair Trade in Hardwood Plywood challenged Commerce's findings, claiming that since a component of the glue was a trade secret, it could not be considered commercially available, making it later-developed. The court disagreed, ruling that whether the trade secret status of one part is irrelevant as to whether the plywood was actually “present in the market.”
The Court of International Trade denied a Vietnamese fish exporter's bid to obtain a separate antidumping rate from the country-wide rate in a July 6 opinion made public on July 21, finding the exporter failed to rebut the presumption of de facto government control. In the 15th administrative review of the antidumping order on frozen fish fillets from Vietnam, the Commerce Department had denied I.D.I. International Development and Investment Corporation's application for a separate AD rate. The agency had said that the company didn't have autonomy from the government in making its management selection decisions, as evidenced by a government employee on its corporate board.