Jacob Kopnick

The Court of International Trade in a July 20 order granted the Commerce Department's request for a partial voluntary remand despite the mandatory respondent's objections. Judge Jane Restani allowed Commerce to take another look at its final results in the countervailing duty investigation into utility scale wind towers from Indonesia to reconsider whether it “improperly included an export subsidy in its upstream subsidy calculation.” The issue was broached with the court “some time ago,” so a simple decision on the matter appears likely, the judge said (PT. Kenertec Power System v. U.S., CIT #20-03687). The government's remand results are due Aug. 19, and the parties have until Aug. 23 to notify the court if a supplemental briefing is required, the order said.

The Commerce Department only needs to show the potential for government control to deny separate rate status to a non-market economy exporter, the Court of International Trade said in a July 6 opinion made public on July 21. "A puppet master is no less in control when the strings are slack," CIT Judge M. Miller Baker said in the opinion. To be granted an individual rate, the respondent must prove that its operations are devoid of de facto government control. Since I.D.I. International Development and Investment Corporation failed to do, it failed to obtain an individual rate, the judge said.

The Court of International Trade remanded the Commerce Department's particular market situation adjustment to sales-below-cost test and use of partial adverse facts available in a July 9 decision made public on July 19. As the court has repeatedly held, there is no statutory authority for Commerce to make a PMS adjustment to the cost of production for a sales-below-cost test when using normal value, leading to Judge Claire Kelly to send the case back to the agency for further consideration.

The following lawsuits were recently filed at the Court of International Trade:

The Commerce Department violated the Administrative Procedure Act by using the same "boilerplate language" used in every Section 232 exclusion request denial when axing CPW America Co.'s bid for relief from the national security tariffs, the company said in a July 19 complaint. By filing suit in the Court of International Trade, CPWA becomes yet another steel importer to challenge what it deems the unlawful denial of a request for exclusion from the Section 232 tariffs. The importer says that Commerce erred in issuing the denial by failing to "meaningfully consider" the evidence submitted by CPWA and find that there were no overriding national security considerations in granting the exclusion request (CPW America Co. v. United States, CIT #21-00335).

The U.S. Court of Appeals for the Federal Circuit on July 20 backed the Commerce Department's initial decision to adjust a Turkish pipe exporter's post-sale price by only one-third of a late delivery penalty, saying it was supported by substantial evidence. Reversing a ruling from the Court of International Trade, the appellate court held that CIT erred in backing Commerce into adjusting the post-sale price by the entirety of the penalty cost since the customer was not aware of the methodology by which the amount of the penalty was to be determined. The decision brought the antidumping margin for mandatory respondent Borusan Mannesmann Boru Sanayi ve Vicaret's above de minimis to 5.11%.

The following lawsuits were recently filed at the Court of International Trade:

A spice company's challenge to a $50,000 penalty for failing to export a shipment of tamarind from Mexico was dismissed from the Court of International Trade for a lack of subject matter jurisdiction, Judge Timothy Stanceu said in a July 19 opinion. CIT found that the case was untimely filed in the court and that the complaint is over a Food and Drug Administration decision merely carried out by CBP.

The Court of International Trade again rejected the Commerce Department's attempt to make a particular market situation adjustment to the cost of production in a sales-below-cost test in an antidumping case, according to a July 19 opinion. Yet again, the court said that such adjustments, resulting in alternative cost methodologies, are reserved for constructed value and not normal value because sales used when calculating normal value must be carried out in the "ordinary course of trade."

The U.S. Court of Appeals for the Federal Circuit affirmed in a July 19 ruling the Court of International Trade's denial of a challenge to a 2020 amendment to an antidumping duty suspension agreement on sugar from Mexico. The trade court had in June 2020 denied CSC Sugar's bid to vacate the suspension agreement amendment. The Federal Circuit upheld the decision without opinion.