The Court of International Trade reassigned five customs cases brought by Continental Automotive Systems from Judge Timothy Stanceu to Judge Jane Restani, in a Dec. 28 order signed by Judge Mark Barnett. Originally filed in 2017 and 2018, the cases concern the proper Harmonized Tariff Schedule classification of Continental's probe element of nitric oxide sensors -- a mass-produced element of NOx sensors, designed for use in consumer passenger vehicles and trucks. Four of the five were placed under a test case. The Department of Justice filed its cross motion for summary judgment Dec. 22 (Continental Automotive Systems v. U.S., CIT #18-00026). The order didn't give a reason for the reassignment.
Antidumping duty petitioner and defendant-appellant Welspun Tubular filed an unopposed motion Dec. 28 for an extension of time to request a full-court rehearing on the U.S. Court of Appeals for the Federal Circuit's decision that the Commerce Department can no longer make a particular market situation adjustment to an AD respondent's cost of production in a sales-below-cost test for the purposes of calculating normal value (see 2112100039). The ruling affirmed a host of Court of International Trade opinions that said the PMS adjustment is reserved solely for constructed value. Petitions for en banc rehearings in the case are due Jan. 9, and Welspun is requesting that this deadline be pushed to Feb. 8 (Hyundai Steel v. U.S., Fed. Cir. #21-1748).
Counsel for pencil importer Royal Brush Manufacturing resubmitted its entry of appearance at the U.S. Court of Appeals for the Federal Circuit Dec. 23, attempting to bring its filing in line with court rules. The appellate court previously found that the notice was not in compliance with court rules since the filing party, Ronald Oleynik of Holland & Knight, didn't have an electronic filing account (see 2112160069). In the updated filing, Steven Gordon was listed as principal counsel for Royal Brush (Royal Brush Manufacturing, Inc. v. U.S., Fed. Cir. #22-1226).
The Commerce Department can't make a particular market situation adjustment to an antidumping duty respondent's cost of production in the sales-below-cost test, the Court of International Trade again said, sustaining the agency's remand results dropping the adjustment. In a Dec. 28 opinion, Judge Jane Restani also said that the issue of the date of the sale in the AD investigation was irrelevant since it wouldn't change the result of the investigation, which was a de minimis rate for respondent Borusan Mannesmann.
The U.S. Court of Appeals for the Federal Circuit should uphold a lower court ruling establishing that the Commerce Department can apply total adverse facts available for a mandatory respondent's failure to provide its factors of production (FOP) data on a control number (CONNUM)-specific basis in an antidumping duty case, the Department of Justice argued in a Dec. 22 brief. DOJ said that the Court of International Trade correctly held that Commerce's requirement for CONNUM-specific reporting isn't subject to notice-and-comment rulemaking requirements, as the plaintiff-appellant Shanxi Pioneer Hardware Industrial argues, but rather an exercise of Commerce's discretion (Xi'an Metals & Minerals Import & Export Co. v. U.S., Fed. Cir. #21-2205).
The following lawsuits were recently filed at the Court of International Trade:
The U.S. Court of Appeals for the Federal Circuit Dec. 27 ruled that CBP cannot use "bypass" liquidations when considering prior customs treatment. The appellate court held that the Court of International Trade erred when it took these bypass liquidations into its consideration of treatment previously afforded importer Kent International's children's bicycle seats (see 2111030031). Remanding the case to CIT, a three-judge panel at the Federal Circuit, though, upheld the trade court's finding that there was no de facto "established and uniform practice" regarding the customs classification of kids' bike seats. The mandate awarded $127.02 in costs to appellant Kent International (Kent International v. United States, Fed. Circ. #21-1065, CIT #15-00135).
The American Manufacturers of Multilayered Wood Flooring filed two complaints at the Court of International Trade, one contesting the Commerce Department's final results in an antidumping duty review of MLWF from China and in a countervailing duty review of MLWF from China. The U.S. industry group said that Commerce erred in the AD review by deviating from its expected method when finding the final dumping margin for non-selected separate rate companies and that it erred in the CVD review by failing to properly construct benchmarks for veneers, fiberboard and paint, primer and stain (American Manufacturers of Multilayered Wood Flooring v. U.S., CIT #21-00595) (American Manufacturers of Multilayered Wood Flooring v. U.S., CIT #21-00596).
The Commerce Department cannot deduct an antidumping duty review respondent's U.S. price by the amount of Section 232 duties paid, Tube Investments of India argued in a Dec. 27 complaint at the Court of International Trade. While the trade court has repeatedly held that Commerce can make such an adjustment, TII nevertheless filed its complaint, holding that Commerce's decision to deduct Section 232 duties from the U.S. price is not backed by substantial evidence. Nithya Nagarajan of Husch Blackwell, counsel for TII, said that she believes the facts are different in the underlying administrative review and that the legal argument will be different, perhaps giving TII a shot that its results will be different this time around at CIT. The review in question is the 2019-2020 administrative review of the antidumping duty order on cold-drawn mechanical tubing of carbon and alloy steel from India (Tube Investments of India v. United States, CIT #21-00598).
The following lawsuits were recently filed at the Court of International Trade: