The following lawsuits were filed recently at the Court of International Trade:
The U.S. Court of Appeals for the Federal Circuit on April 21 issued its mandate after finding in February that CBP didn't need to refer the question of whether petitioner CP Kelco still made oilfield xanthan gum to the Commerce Department in an antidumping duty evasion case. The appellate court said the evidence didn't support such a referral and, in any case, the referral would only apply to future merchandise and not the goods subject to the evasion case (see 2502270018). The Federal Circuit also said CBP permissibly used adverse inferences against the manufacturers of the subject xanthan gum given their failure to submit requested information, notwithstanding the full participation of the importers subject to the proceeding (All One God Faith v. United States, Fed. Cir. # 23-1078).
The Commerce Department reasonably used adverse facts available against respondent Kumar Industries for failing to respond to the best of its ability in demonstrating that it's not affiliated with two unnamed companies, the Court of International Trade held on April 23. Judge Gary Katzmann held that Commerce's request for information on the alleged affiliations "should not have come as a surprise," adding that it's the respondent's burden to sufficiently populate the record.
The U.S. Court of Appeals for the Federal Circuit on April 23 again rejected the Commerce Department's use of the Cohen's d test as part of its analysis to detect and address "masked" dumping. A day after the court resoundingly struck down the agency's use of the test in a separate case (see Ref:2504220030]), Judges Alan Lourie, William Bryson and Leonard Stark said they were bound by the court's day-old ruling.
The Commerce Department and the International Trade Commission published the following Federal Register notices April 23 on AD/CVD proceedings:
Four wheel exporters will appeal a February Court of International Trade decision sustaining the inclusion of trailer wheels made of Chinese rims and Thai discs in the scope of the antidumping duty and countervailing duty orders on steel trailer wheels from China. Filing four notices of appeal, exporters Asia Wheel Co., Lionshead Specialty Tire and Wheel, Trailstar and Dexter Distribution Group f/k/a Textrail said they will take the case to the U.S. Court of Appeals for the Federal Circuit. In the case, CIT Judge Gary Katzmann said that Commerce didn't illegally expand the scope of the orders since the agency left open the possibility in the original AD/CVD investigations to discuss mixed-origin wheels in a later scope ruling (see 2502210039) (Asia Wheel Co. v. United States, CIT Consol. # 23-00096).
The Court of International Trade ruled April 22 that filling out a single mandatory importer questionnaire response at the beginning of an International Trade Commission injury investigation isn’t enough for an importer to establish itself as a party to the proceeding.
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The Commerce Department cannot use the Cohen's d test to detect "masked" dumping when the "underlying data is not normally distributed, equally variable, and equally and sufficiently numerous," the U.S. Court of Appeals for the Federal Circuit held on April 22. Judges Sharon Prost, Richard Taranto and Raymond Chen said that it's "unreasonable" to use the test when it's applied to "data sets that do not satisfy the statistical assumptions."
The Court of International Trade on April 23 denied exporter Kumar Industries' challenge to the 2021-22 review of the antidumping duty order on glycine from China, India and Japan. Judge Gary Katzmann said the Commerce Department reasonably used adverse facts available against Kumar for its failure to respond to the best of its ability in establishing that it's not affiliated with two unnamed companies. The judge also sustained Commerce's decision to deduct antidumping and countervailing duties from Kumar's U.S. price for only three transactions, given evidence showing that Kumar didn't include AD/CVD for these sales.