The Commerce Department's requirement that an antidumping respondent report all of its factors of production (FOP) data on a control number (CONNUM)-specific basis violated the law because it's a legislative rule subject to the Administrative Procedure Act but was imposed without the required notice-and-comment period, respondent Shanxi Pioneer Hardware Industrial Co. said in a Jan. 26 brief. Responding to arguments from the Department of Justice and the AD petitioner at the U.S. Court of Appeals for the Federal Circuit, Pioneer also said that even if the requirement isn't deemed a legislative rule, Commerce's CONNUM-specific rule is unlawful since it restricted the agency's ability to rely on non-CONNUM-specific data (Xi'an Metals & Minerals Import & Export Co. v. U.S., Fed. Cir. #21-2205).
Although attorneys were expecting further guidance from the Court of International Trade over how best to claim "first sale" valuation with the CBP, they got even more questions about how the valuation tactic will be applied, Kevin Leonard, international trade lawyer at Grunfeld Desiderio, said at a Jan. 26 webinar hosted by the U.S. Fashion Industry Association. Speaking about CIT's March decision in Meyer Corp. v. U.S., Leonard discussed what he saw as the opinion's impacts and flaws, including a failure to look at the "second sale" price in the case and the addition of a new requirement for parties looking to claim first sale.
The Commerce Department can use adverse facts available in a countervailing duty review due to the Chinese government's failure provide information about how electricity processes and costs vary among its provinces, the Court of Appeals for the Federal Circuit said in a Jan. 28 opinion. The opinion, which upheld a Court of International Trade ruling, concerns the fourth administrative review of the CVD order on solar cells from China, in which Commerce identified electricity price variations across different provinces, resulting in a finding of the provision of electricity for less than adequate remuneration.
An arbitrator at the World Trade Organization in a Jan. 26 report found that China can implement countermeasures on goods from the U.S. up to $645.12 million annually due to U.S. violations of WTO obligations in a variety of countervailing duty proceedings. The arbitrator looked at 10 CVD matters and determined that the total level of "nullification and impairment" China suffered as a result of the U.S.'s "WTO-inconsistent methodologies" in these proceedings exceeded $645 million per year. The CVD matters concern pressure pipe, line pipe, kitchen shelving, oil country tubular goods (OCTG), wire strand, seamless pipe, print graphics, aluminum extrusions, steel cylinders and solar panels. The only nonredacted level of N/I for the CVD proceedings included $365.37 million for OCTG and $20.65 million for solar panels. China can now ask the Dispute Settlement Body for authorization "to suspend concessions or other obligations at a level not exceeding" $645.121 million per year.
The Commerce Department dropped its finding that a particular market situation existed for the sale of oil country tubular goods in South Korea, lowering the dumping rate for respondent SeAH Steel Corp. from 3.96% to zero percent. Submitting this change to the Court of International Trade via Jan. 24 remand results, Commerce said that although it disagrees with the court that its PMS position isn't backed by enough evidence, it's making the change to comply with court orders (SeAH Steel Corp. v. United States, CIT #20-00150).
The lack of access to business confidential information (BCI) in an antidumping and countervailing duty evasion investigation violated wire hanger importer Leco Supply's due process rights, the importer told the Court of International Trade in a Jan. 24 brief. Responding to CBP's remand results in which it took another look at its initial finding of evasion under the Enforce and Protect Act, Leco said its lack of access to confidential information and the withholding of information not entitled to confidentiality at the administrative level "clearly risked erroneous deviation of Leco's private interests," the brief said. An administrative protective order issued during EAPA investigations would end this concern, the importer told the trade court (Leco Supply v. U.S., CIT #21-00136).
The trade provisions of the America COMPETES Act of 2022, the House's answer to the Senate U.S. Innovation and Opportunity Act, proposes some dramatic changes to antidumping and countervailing laws. The ADD/CVD section draws on a bipartisan bill from the Senate led by Ohio's two senators, but co-sponsored by Sen. Todd Young, R-Ind. Young will be a major player on the conference committee, so that suggests that the ADD/CVD changes could well end up in the final package.
The Commerce Department and the International Trade Commission published the following Federal Register notices Jan. 26 on AD/CV duty proceedings:
The following lawsuits were recently filed at the Court of International Trade:
Steel wheel importer Rimco seeks relief at the Court of International Trade over the Commerce Department's all-others rate in a countervailing duty review by asking the court to order Commerce not to do something that it did not do in the first place, defendant-intervenor Dexstar Wheels said in a Jan. 24 brief. Asking the trade court to toss the case, Dexstar said that Rimco failed to state a claim for which relief can be granted since Commerce did not actually set an all-others rate in the review (Rimco v. United States, CIT #21-00588).