The issue of whether a South Korean port usage rights program is countervailable is not moot just because the Commerce Department has now assigned a de minimis rate to the countervailing duty respondent, Hyundai Steel Co. argued in a Dec. 8 reply brief at the Court of International Trade. Rather, since Commerce can continue subjecting Hyundai to countervailing duty reviews based on this port usage rights program, the question is key for Hyundai, despite the fact that it is not being hit with CV duties this time around, the company said (Hyundai Steel Company v. United States, CIT #20-03799).
The Court of Appeals for the Federal Circuit on Dec. 10 said the Commerce Department can't make a particular market situation adjustment to an antidumping respondent's cost of production for the purposes of a sales-below-cost test. A three-judge panel at the appellate court said that the statute -- a section of the Trade Preferences Extension Act of 2015 -- didn't allow for such an adjustment, and that a PMS adjustment is only permitted for constructed value. The case concerned an AD review for welded line pipe form South Korea, originally brought by respondents Hyundai Steel Co. and SeAH Steel Corp., and was appealed by petitioner Welspun Tubular.
The Commerce Department and the International Trade Commission published the following Federal Register notices Dec. 9 on AD/CV duty proceedings:
The Commerce Department is updating its regulations on dispute settlement for antidumping and countervailing duty cases under USMCA, it said in an interim final rule. The USMCA Article 10.12 provisions are “substantively identical” to those found in NAFTA Article 1904, so the changes are minor, including updating old references to NAFTA to now say USMCA, and updates to outdated cross-references to other regulations and to outdated notice, filing, service and protective order procedures. The interim final rule takes effect Dec. 9, though it does not apply to any binational panel under NAFTA, “or any extraordinary challenge arising out of any such review, that was commenced before July 1, 2020,” Commerce said. Comments are due Jan. 10, 2022.
Plaintiffs challenging an antidumping review, led by Hung Vuong Corporation, will appeal an October Court of International Trade opinion upholding the Commerce Department's use of adverse facts available, the plaintiffs said in a Dec. 8 notice of appeal. The decision, which came in a case over an administrative review of the antidumping duty order on frozen fish fillets from Vietnam, will be appealed to the U.S. Court of Appeals for the Federal Circuit. Commerce's use of AFA was originally remanded by the court, but was then sustained after swapping out the grounds on which the AFA finding was based (see 2110130031). The agency ultimately based the AFA finding on Hung Vuong's failure to retain source documents on feed consumption, production records and sales correspondence, and Hung Vuong's failure to report factors of production data on a control number-specific basis (Hung Vuong Corp., et al. v. United States, CIT #19-00055).
The Court of International Trade greenlighted the Department of Justice's second motion for an extension to file comments on the remand results in a Dec. 8 order submitted in a case over an antidumping scope ruling. Plaintiff-intervenor SIGMA Corporation opposed the bid, arguing that a further delay will prejudice it. SIGMA currently is wrapped up in parallel litigation in the U.S. District Court for the Central District of California, where the defendant-intervenor in the CIT case, Island Industries Inc., sued SIGMA and others, arguing that the companies violated the False Claims Act by not paying antidumping duties on their welded outlet imports. While a jury verdict has been entered, SIGMA is seeking a new trial since the verdict was "against the weight of the evidence," SIGMA said (Vandewater International Inc., et al. v. United States, CIT #18-00199).
The Court of International Trade upheld the Commerce Department's switch from Thai to Bulgarian surrogate data and Thai to Mexican surrogate data for a key solar cell input in two nearly identical Dec. 8 opinions on two separate antidumping duty reviews. After previously finding that Commerce's reliance on the Thai data was improper, the court had directed Commerce to either switch to another option or further explain its position. The agency reversed course in both cases, finding no objection by any party, including any of the plaintiffs, led by Solarworld Americas, Inc. and Canadian Solar International, respectively.
The Commerce Department went too far when hitting antidumping respondent BlueScope Steel Ltd. with total adverse facts available in an AD review, the Court of International Trade said in a Nov. 30 opinion, made public on Dec. 8. Remanding the case to Commerce, Judge Richard Eaton said that Commerce failed to back its AFA finding for two reasons: it did not show that BlueScope's responses created a gap in the record over its U.S. sales quantity and value report, and failed to give notice of deficient responses relating to reconciling BlueScope's U.S. and home market sales information with prior submissions.
The Commerce Department and the International Trade Commission published the following Federal Register notices Dec. 8 on AD/CV duty proceedings:
The following lawsuits were recently filed at the Court of International Trade: