The Commerce Department wants a partial remand of its final determination in a countervailing duty investigation on utility scale wind towers from Indonesia, to reconsider whether it erroneously identified an upstream subsidy in the case as an export subsidy. In a July 9 motion for partial remand in the Court of International Trade, the government defense said that it wants the chance to review this determination to see if an error was committed and to potentially recalculate the resulting countervailing duty rate for the plaintiff in the case, PT. Kenertec Power System, which received the all-other respondents rate in the investigation (PT. Kenertec Power System v. United States, CIT #20-03687).
Court of International Trade activity
The Commerce Department will only partially apply adverse facts available for sales a diamond sawblade exporter made to its U.S. affiliate, which used a first-in-first-out methodology to keep track of its country of origin data when calculating the exporter's antidumping rate, it said in remand results filed by the agency July 13. The filing comes to the Court of International Trade after the U.S. Court of Appeals for the Federal Circuit left it up to the trade court to determine if a further remand was needed. The Federal Circuit held that a remand was appropriate for Commerce to determine if it could disregard the exporter's U.S. sales using the FIFO methodology (Diamond Sawblades Manufacturers' Coalition v. United States, CIT #17-00167).
The Court of International Trade stayed proceedings in a case brought by Allegheny Technologies Incorporated, challenging the denial of its request for an exclusion from Section 232 duties, in a July 12 order. In the joint motion requesting the stay, counsel for Allegheny said that the government defense reported to the plaintiffs that it was "engaged in internal discussions concerning disposition of this case." The government plans to wrap up the discussions and discuss the results with the plaintiffs in the following week, and said that any resulting status report or motion would be filed "as soon as practicable." Proceedings in the case are stayed until July 21 (Allegheny Technologies Incorporated et al. v. U.S., CIT #20-03923).
The following lawsuits were recently filed at the Court of International Trade:
The U.S. Court of Appeals for the Federal Circuit remanded in part and sustained in part the Commerce Department's final determination in an antidumping investigation into welded line pipe from South Korea in a July 15 opinion. The appellate court affirmed all but one of the Court of International Trade's findings, sending the case back to Commerce to reconsider the use of Cohen's d test in its differential pricing analysis when seeking to assign a dumping margin for goods having undergone "masked dumping."
The Court of International Trade on July 12 upheld the Commerce Department's pick of Romania over Malaysia as a surrogate country in an antidumping case, but sent back to the agency the resulting financial ratio calculation of a Romanian company. Since Commerce failed to address the concerns of mandatory respondent Ancientree Cabinets, Judge Gary Katzmann directed Commerce to reconsider Ancientree's objections. Other aspects of the investigation under contention, namely the selection of Romania over Malaysia and Commerce's picks for product input surrogate values, were upheld by Katzmann.
The U.S. Court of Appeals for the Federal Circuit upheld a Court of International Trade ruling dismissing an importer's challenge of CBP's assessment of antidumping and countervailing duties for improper jurisdiction, in a July 14 opinion. The Federal Circuit found that TR International Trading Co., which filed its case under the trade court's Section 1581(i) "residual" jurisdiction provision, could have instead challenged a denied protest under 1581(a) or a scope ruling under 1581(c), rendering Section 1581(i) unavailable. TRI had challenged CBP's finding that the company's citric acid imports from India were of Chinese origin and subject to AD/CV duties.
The president may impose greater Section 232 national security tariffs beyond the 105-day timeframe for action set out in the statute, the U.S. Court of Appeals for the Federal Circuit said in a July 13 ruling. Overturning a lower court ruling, the Federal Circuit found that the underlying law's deadline for the president to take "action" can refer to a "plan of action" carried out over a period of time following the 105-day deadline. That authority is not unlimited, though, in that modifications must be related to the underlying reasoning for the tariffs and those reasons can't be "stale," CAFC said.
The Department of Justice's argument that the president should be granted deference to determine whether the procedural boxes have been ticked when eliminating a tariff exemption would eliminate a key check on executive power, counsel for the Solar Energy Industries Association said during July 13 oral argument. The proceedings before Court of International Trade Judge Gary Katzmann come amid SEIA's challenge to President Donald Trump's revocation of an exemption to Section 201 safeguard tariffs on bifacial solar panels (Solar Energy Industries Association et al. v. United States, CIT #20-03941).
The Commerce Department submitted its remand results to the Court of International Trade on July 12 in an antidumping administrative review on multilayered wood flooring, dropping one of the mandatory respondents from the review in response to a ruling in a separate case from the U.S. Court of Appeals for the Federal Circuit (Fine Furniture (Shanghai) Limited, et al. v. United States, CIT # 14-00135). Following multiple court decisions and remand results, proceedings in Fine Furniture's case were stayed pending the results of the Federal Circuit appeal in Changzhou Hawd Flooring Co., Ltd. v. United States. The eventual decision found that Fine Furniture is not subject to the antidumping order since the mandatory respondents in the underlying AD order received de minimis duty rates in Commerce's final determination (see 2106020069). CIT lifted the stay and remanded the case to exclude Fine Furniture from the review and recalculate the rate for the separate respondents. As a result of Fine Furniture's departure from the review, and the other two mandatory respondents in the review having zero percent antidumping duty margins, the AD rate for all separate rate respondents would fall to zero percent, should the rate be sustained.