A recent Court of International Trade decision in Goodluck India v. U.S. is relevant in a case on the Commerce Department's continued antidumping duty investigation on tomatoes from Mexico conducted after a suspension agreement was terminated, plaintiffs in another case, led by Bioparques de Occidente, claimed in a Dec. 14 notice of supplemental authority. In Goodluck, the trade court said that the U.S. cannot dismiss an alternatively pleaded ground of jurisdiction in a motion to dismiss for lack of subject-matter jurisdiction (see 2212010024). Bioparques' case presents a similar scenario, the brief said (Bioparques de Occidente v. U.S., CIT Consol. #19-00204).
The Court of International Trade for the second time upheld the Commerce Department's use of adverse facts available in a countervailing duty case based on the Chinese government's failure to submit information about the Export Buyer's Credit Program. Judge Timothy Reif in a Dec. 8 opinion made public Dec. 16 said information about participating banks was vital enough to Commerce's efforts to verify non-use of the program that the refusal to provide the information justified the use of AFA. The court differentiated the case from another countervailing duty proceeding in which Commerce verified non-use without the requested information, finding in the other case the agency had non-use certifications from the respondent's U.S. customers -- something they did not have in the present case.
The Commerce Department and the International Trade Commission published the following Federal Register notices Dec. 15 on AD/CVD proceedings:
Each one of the Commerce Department's four findings challenged in a countervailing duty case challenge is legal and should be sustained, the U.S. argued in a Dec. 9 reply brief at the U.S. Court of Appeals for the Federal Circuit. The government claimed Commerce's decision not to rely on respondent Marmen Energie's auditor's adjustment was reasonable; the agency reasonably found the additional depreciation for various Class 1 assets conferred a countervailable benefit to Marmen; Commerce's calculation of Marmen's benefit for a tax credit program legally did not include the income tax effects of benefits under the program for past years; and the agency reasonably said that Quebec's on-the-job tax credit program is de facto specific (Quebec v. United States, Fed. Cir. #22-1807).
The use of adverse facts available in an antidumping duty investigation against one party based on data submitted by another party is illegal, Brazilian honey producer Supermel argued in a motion for judgment at the Court of International Trade. The Commerce Department did not have the legal authority to ask Supermel to verify its data against information submitted by an unaffiliated beekeeper, even though Supermel's data was "in fact, reliable and verified," the brief said (Apiario Diamente Comercial Exportadora v. United States, CIT #22-00185).
The Commerce Department’s recent preliminary determination that Southeast Asian solar cells and panels are circumventing antidumping and countervailing duties (see 2212020064) left several questions unanswered, and lawyers for the Solar Energy Industries Association hope the agency will clarify these issues as the case proceeds to its final determinations, they said during a webinar Dec. 13.
The Commerce Department and the International Trade Commission published the following Federal Register notices Dec. 14 on AD/CVD proceedings:
The following lawsuit was recently filed at the Court of International Trade:
The Court of International Trade in a Dec. 13 confidential opinion sustained the Commerce Department's remand results in a case concerning the antidumping duty investigation on fabricated structural steel from Mexico. After Judge Claire Kelly remanded the case, Commerce stuck by its methodology used to calculate profit for the constructed value of respondent Building Systems de Mexico, also dropping the use of adverse facts available for one unreportable sale (see 2207210034). The agency further used the date of substantial completion of a fabricated structural steel project as the date of sale rather than using the purchase order date or sales order acknowledgment date, and didn't exclude the operating results of the business unit in question from the calculation of the constructed export price profit rate. Kelly gave the parties until Dec. 20 to review the confidential information in the opinion with the hopes of releasing the public version of the opinion Dec. 21 (Building Systems de Mexico v. United States, CIT #20-00069).
The Commerce Department illegally used adverse facts available for exporter SeAH Steel Corp.'s alleged benefits under the Export-Import Bank of Korea's (KEXIM's) Performance Guarantee program, SeAH argued in a Dec. 13 complaint at the Court of International Trade. Commerce improperly based its decision on its treatment of information related to the performance guarantee program presented at verification as "new factual information," the brief said (SeAH Steel Corp. v. United States, CIT #22-00338).