A protest supplement filed by an importer may not be considered by CBP as a supplement but should be accepted as a new protest, CBP said in a recent ruling. Though the supplement was too late because it came after the relevant protest was denied and addressed an issue not included under the original protest, the supplement otherwise met all requirements for protests filed by CBP, the agency said.
Plaintiff and antidumping duty respondent GODACO Seafood Joint Stock Company will appeal a September Court of International Trade opinion sustaining the Commerce Department's calculation of the separate rate in an antidumping duty administrative review by averaging the separate rates from the previous four administrative reviews, according to a Nov. 23 notice of appeal. The case will be appealed to the U.S. Court of Appeals for the Federal Circuit. The September decision came in a case involving the 2015-2016 review of the AD duty order on fish fillets from Vietnam in which the court originally rejected Commerce's separate rate calculation (see 2109270035). The court then upheld this calculation after the agency based the rate on more contemporaneous data (GODACO Seafood Joint Stock Co., et al. v. United States, CIT Consol. #18-00063).
The Court of International Trade issued its final judgment in the Transpacific Steel case that held that the president can impose greater Section 232 national security tariffs beyond the 105-day time frame for action set out in the statute (see 2107130059). After the U.S. Court of Appeals for the Federal Circuit overturned CIT's original decision finding such action illegal, the trade court reversed its decision concurrent with the appellate court's mandate, in a Nov. 22 judgment. Plaintiffs in the case recently petitioned the Supreme Court to hear the case (see 2111150061) (Transpacific Steel LLC, et al. v. United States, CIT #19-00009).
Goods coming from a non-market economy may be denied first sale valuation due to the market-distorting policies of the non-market economy, the Department of Justice said in a Nov. 19 brief filed to the U.S. Court of Appeals for the Federal Circuit. Arguing the appellate court should uphold a Court of International Trade ruling questioning the use of first sale on goods from NMEs, DOJ pushed back against plaintiff Meyer Corp.'s contention that NME policies cannot be included in "any non-market influences" -- any of which the U.S. can use to deny an importer the use of first sale. Notably, DOJ did not whole-heartedly embrace the notion that goods coming from an NME are immediately disqualified from receiving first sale valuation (Meyer Corporation, U.S. v. United States, Fed. Cir. #21-1932).
The Government of Argentina, along with LDC Argentina, will appeal a September Court of International Trade decision that found that the Commerce Department had sufficient evidence in its changed circumstances review to support its finding that the situation had not changed regarding countervailable subsidies for Argentina's biodiesel industry. In two notices of appeal, both plaintiffs said they will now take the case to the U.S. Court of Appeals for the Federal Circuit. In the case, the court also upheld Commerce's decision to originally find changed circumstances but later switch back to a finding of no changed circumstances, leading to a higher CVD rate (see 2109210046) (Government of Argentina v. United States, CIT Consol. # 20-00119).
The Commerce Department requested a voluntary remand in a Court of International Trade case over steel exporter Mirror Metals' denied Section 232 exclusion requests, finding that it is appropriate to reconsider the exclusion denials. The case concerns 45 exclusion requests for flat-rolled stainless steel products that are supposedly used in large-scale architectural projects. The requests saw objections from three domestic manufacturers, leading to Commerce denying all 45 exclusion bids. The leading reason for the denials given by Commerce was the availability of the domestic capacity to make the products in question (Mirror Metals, Inc. v. United States, CIT #21-00144).
That an antidumping review respondent lied in its advertisements about what its goods were made of does not warrant the application of adverse facts available, the Court of International Trade said in a Nov. 18 decision. Judge Miller Baker said that while the respondent's advertising in the U.S. is a "complete fraud from bark to core," the Commerce Department must derive the company's dumping rate from its actual costs. The judge also held that Commerce does not have the jurisdiction to "police false advertising violations" under its antidumping laws.
The Customs Rulings Online Search System (CROSS) was updated Nov. 18 with the following headquarters rulings (ruling revocations and modifications will be detailed elsewhere in a separate article as they are announced in the Customs Bulletin):
The Court of International Trade sustained Nov. 18 the Commerce Department's remand results in a case involving a scope revision in an antidumping and countervailing duty investigation on steel trailer wheels from China. After previously sustaining the scope revision itself but remanding the retroactive imposition of the duties on subject merchandise, Judge Gary Katzmann then sustained Commerce's redetermination after it dropped the retroactive duties.
The Commerce Department improperly rejected a first-in-first-out (FIFO) methodology used by an Indonesian mattress exporter to determine which of the exporter’s U.S. inventory to examine in an antidumping duty investigation on mattresses from Indonesia, the exporter said in a brief filed with the Court of International Trade Nov. 9.