U.S. Court of Appeals for the Federal Circuit
20-1476
SC Johnson & Son Inc. v. United States
6/2/2021
Moore, Dyk, O’Malley
The Federal Circuit affirmed the CIT’s opinion upholding CBP’s classification of plaintiff-appellant’s Ziploc® brand reclosable sandwich bags under heading 3923, HTSUS, as “[a]rticles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics: Sacks and bags (including cones): Of polymers of ethylene.” S.C. Johnson argued that the sandwich bags should have instead been classified under heading 3924, HTSUS, as “[t]ableware, kitchenware, other household articles and hygienic or toilet articles, of plastics: Other: Other.” Below, the CIT held that HTSUS heading 3923 “is a principal use provision and encompasses goods of plastic used to carry or transport other goods of any kind,” while heading 3924 “is an eo nomine provision that encompasses plastic goods of or relating to the house or household.” After a bench trial, the CIT concluded that the sandwich bags were prima facie classifiable under both headings at issue and, applying GRI 3, held classification under heading 3923 to be appropriate because that heading “has requirements that are more difficult to satisfy and describe the article with a greater degree of accuracy and certainty.”
In sustaining the CIT’s holding regarding the applicability of heading 3923, the Federal Circuit rejected S.C. Johnson’s argument that that heading should have the same scope as its predecessor tariff provision under TSUS item 772.20 (and therefore be limited to articles used for commercial purposes). The Federal Circuit concluded that S.C. Johnson’s argument failed to take into account that the language of HTSUS heading 3923 differs from TSUS item 772.20 in two material respects and was undermined by the Explanatory Notes for heading 3923 indicating that the heading encompassed disposable household bags. The Federal Circuit further distinguished its prior holding in SGI, Inc. v. United States, 122 F.3d 1468 (Fed. Cir. 1997), which rejected classification of soft-sided insulated coolers under heading 3923.
The Federal Circuit further sustained the CIT’s holding that heading 3924 is an eo nomine provision rather than a use provision, because the key inquiry is where the articles at issue are located (i.e., in the household), rather than how they are used. In so doing, the Federal Circuit again differentiated SGI.
20-1159
China Manufacturers Alliance, LLC et al v. United States
6/10/2021
Lourie, Clevenger, Hughes
The Federal Circuit reversed and remanded the CIT’s decision in an appeal of an AD administrative review of certain new pneumatic off-the-road tires from China. The CIT held that Commerce could not apply an existing China-wide AD rate to Double Coin Holdings, Ltd. The Federal Circuit found that Commerce was justified in assigning the 105.31% PRC-wide entity rate to Double Coin, because Double Coin failed to demonstrate the absence of de facto government control over its export activities.
20-2088
Lockhart Textiles v. United States
6/15/2021
Prost, Clevenger, Stroll
In a non-precedential opinion, the Federal Circuit affirmed under Rule 36 the CIT’s opinion affirming CBP’s classification of imported wearing apparel consisting of 100 percent polyester knit women’s trousers made of Best Key Metalized Yarn under HTSUS subheading 6104.63.20 (in relevant part, “of synthetic fibers”), rather than under subheading 6104.69.80 (“of other textile materials”).
20-2157
Transpacific Steel LLC et al v. United States et al
7/13/2021
Reyna, Taranto, Chen
In a split opinion, the Federal Circuit found President Trump’s March 2018 increase of Steel Section 232 duties on Turkish imports to be consistent with 19 USC § 1862(c)(1) and the Fifth Amendment equal protection guarantee, reversing the CIT’s opinion otherwise.
In August 2018, the President issued Proclamation 9772, which increased the tariff on Turkish steel imports originally imposed in March 2018. Transpacific and other importers of Turkish steel (Plaintiff-Appellees) contended, and the CIT found, that Proclamation 9772 was unlawful because it was issued outside 90-day period for the President to concur or disagree with the Secretary of Commerce’s investigation findings and to determine how to respond to the threat, and after the 15-day period for the President to implement that response, set out § 1862(c)(1). Judges Taranto and Chen disagreed, holding that “§ 1862(c)(1) permits the President to announce a continuing course of action within the statutory time period and then modify the initial implementing steps in line with the announced plan of action by adding impositions on imports to achieve the stated implementation objective.” The Federal Circuit further found that the President’s initial March 2018 action “announced a continuing course of action that could include adjustments as time passed,” and that the subsequent increase in tariffs on Turkish imports was premised in the same rationale as the March 2018 action. Under these specific circumstances, the Federal Circuit found that Proclamation 9772 did not violate the procedural timelines set forth in § 1862.
Plaintiff-Appellees further contended, and the CIT found, that singling out Turkish imports for a tariff increase violated their equal protection guarantee under the Fifth Amendment. Reversing, the Federal Circuit held that “[t]he most demanding standard that could apply here is the undemanding rational-basis standard,” because Plaintiff-Appellees “made no persuasive case” that a heightened standard of review would apply to importers of a particular product from a particular country. The Federal Circuit further held that the tariff increase was “one of a number of possible steps to achieve the goal of increasing utilization of domestic steel plants’ capacity to try to improve their sustainability for national security reasons,” and that explanation meets the rational-basis standard for government action.
Judge Reyna dissented. Because Section 232 is a trade statute, and trade authority is vested in Congress’s constitutional tariff power, Judge Reyna disagreed that § 1862 delegated to the President authority to adjust imports outside of the statute’s plain language time limits.
20-1857
Stupp Corporation et al v. United States
7/15/2021
Taranto, Bryson, Chen
The Federal Circuit affirmed in part and vacated and remanded in part a decision of the CIT affirming Commerce’s final determination in the antidumping duty investigation of welded line pipe from Korea. The CAFC found that the evidence presented called into question whether Commerce’s application of the Cohen’s d test to the data in this case violated the assumptions of normality, sufficient observation size, and roughly equal variances associated with that test. Thus, the court remanded the case to give Commerce an opportunity to explain whether the limits on the use of the Cohen’s d test were satisfied in this case or whether those limits need not be observed when Commerce uses the Cohen’s d test in less-than-fair-value adjudications.
20-1830
TR International Trading Company v. United State, et al
7/15/2021
Prost, Chen, Hughes
The Federal Circuit affirmed the CIT’s dismissal of TR International’s claim for lack of jurisdiction under 28 USC § 1581(i). TR International imported citric acid for which it declared the country of origin to be India. Customs determined that the processing in India prior to exportation did not substantially transform the product, found the country of origin to be China, and so liquidated the entries subject to the AD/CVD duties on citric acid from China. TR International challenged the application of duties at the CIT, asserting § 1581(i) residual jurisdiction. The Federal Circuit affirmed the CIT’s holding that it was more appropriate for TR International to challenge Customs’ country of origin determination or the application of AD/CVD duties through a protest or a scope ruling from Commerce, and because (a) or (c) jurisdiction was available, dismissed for lack of (i) jurisdiction.
20-2014
Borusan Mannesman Boru Sanayi ve Ticaret AS v. American Cast Iron Pipe Co. et al
7/20/2021
Moore, Dyk, Reyna
The Federal Circuit reversed a judgment by the CIT involving a post-sale price adjustment in the antidumping duty investigation of large diameter welded pipe from Turkey. The CIT had remanded to Commerce with instructions to grant the post-sale price adjustment and to recalculate the AD duty margins. The CAFC concluded that Commerce’s original post-sale price adjustment was supported by substantial evidence and in accordance with law and reversed the CIT’s decision.
20-1734
National Association of Manufacturers v. Department of Treasury
8/23/2021
Lourie, Prost, Reyna
The Federal Circuit affirmed the CIT’s finding that excise taxes on substitution drawback claims are eligible for refunds. The Federal Circuit rejected CBP’s and Treasury’s 2018 rule (“Rule”) that redefined drawback to exclude goods imported and subsequently exported duty free. The Court held that the Rule “defies logic” because it expanded the definition of drawback to include a drawback of excise tax that was never paid or determined on exported merchandise. As a result, the Court concluded that “the expansive definition in the Rule” conflicted with the unambiguous text of the drawback statute.
The U.S. Government argued that “the CIT erred in invalidating the Rule by erroneously reading the Rule to create irreconcilable statutory conflicts and irrational results.” The U.S. Government alleged that the Rule does not prohibit this result “but merely prohibits double recovery of the same tax.” The U.S. Government also contended “that the legislative history of the drawback regime does not support invalidating the Rule.” In response to the U.S. Government’s arguments, the Court noted that the legislative history of the drawback regime demonstrated that Congress chose to expand access to drawbacks at the expense of excise tax. The Federal Circuit ultimately affirmed the CIT’s judgment that the Rule is unlawful.
20-2017
Goodluck India Limited v. United States
8/31/2021
Reyna, Clevenger, Stoll
The Federal Circuit reversed the CIT’s affirmation of Commerce’s remand, holding that Commerce’s decision to reject Goodluck India Ltd.’s questionnaire corrections in the antidumping duty investigation of cold-drawn mechanical tubing from India was supported by substantial evidence and in accordance with law. The CAFC agreed with Commerce that the corrections were not considered “minor.” As a result of the CAFC’s decision, a 33.8% percent AD rate will apply to Goodluck India Ltd.’s entries.
U.S. Court of International Trade
21-68
Carpenter Technology Corp. et al v. United States
6/2/2021
Consol. 19-00200
Barnett
1581(c)
The CIT sustained Commerce’s final remand redetermination in the antidumping duty administrative review of stainless-steel bar from India. The CIT concluded that Commerce did not exceed the scope of its remand order because the court used broad language in issuing such order and the changes are directly related to Commerce’s application of its methodology. The CIT also found that Commerce’s margin calculation was in accordance with the law, as it is well established that Commerce can rely on adverse facts available to induce respondents to cooperate. The CIT further explained that “Commerce’s reference to a possible inducement effect of its selection of AFA does not, by itself, suggest a punitive or otherwise inappropriate basis for Commerce’s changes to the margin calculation program and the court will not infer an improper motive solely on the basis of the result.”
21-69
Fine Furniture (Shanghai) Ltd. et al v. United States
6/2/2021
Consol. 14-00135
Stanceu
1581(c)
The CIT remanded and instructed Commerce to calculate antidumping duty rates for certain separate rate respondents in the first antidumping duty administrative review of multilayered wood flooring from China. The order came as the previously ordered stay pending a decision from the Court of Appeals in Changzhou Hawd Flooring Co., Ltd., is no longer in effect now that the decision has become final.
21-70
Husteel Co., Ltd. v. United States
6/7//2021
Consol 19-00112
Kelly
1581(c)
The CIT sustained in part and remanded in part Commerce’s corrected remand redetermination in the 2016-2017 antidumping duty administrative review of welded line pipe from Korea. The court sustained Commerce’s reliance on SeAH’s third country sales to Canada to calculate normal value and to calculate NEXTEEL’s constructed value profit. The court also sustained Commerce’s reclassification of NEXTEEL’s suspended production losses, its reliance on SeAH’s annual weighted-average costs, its treatment of PPA’s general and administrative expenses to calculate SeAH’s constructed export price, and its ministerial correction to SeAH’s dumping margin. The CIT remanded for further explanation or reconsideration of Commerce’s decision to adjust NEXTEEL’s prime and non-prime costs.
21-71
Xi’an Metals & Minerals Import & Export Co., Ltd. v. United States
6/9/2021
Consol 20-00103
Gordon
1581(c)
The CIT sustained Commerce’s final results in the antidumping duty administrative review of certain steel nails from China. The court found that Commerce’s use of adverse facts available was justified because Pioneer was or should have been aware of Commerce’s longstanding reporting requirements, Commerce’s multiple requests for CONNUM-specific FOP information, and Pioneer’s refusal to develop a later native reporting methodology. The court also found that Commerce’s sample rate calculation for separate rate respondents was not unreasonably high and was reflective of the separate rate respondents’ dumping margins. Specifically, the court relied on Commerce’s findings that the respondents’ dumping behavior was different than that of Stanley and thus Commerce did not act unreasonably in calculating a sample rate that exceeded the individual rate assigned to Stanley.
21-72
Oman Fasteners, LLC et al v. United States et al
6/10/2021
Consol. 20-00037
Choe-Groves
Baker
Stanceu
1581(i)
The CIT found President Trump’s issuance of Proclamation 9980, which imposed a 25% duty on certain imported articles made of steel (“derivative steel articles”), to be untimely issued and thus entered judgment for the Plaintiffs on that count. Consistent with PrimeSource Bldg. Prods. I, Slip Op. 21-8, and PrimeSource Bldg. Prods. II, Slip Op. 21-36, the Court found that Section 232(c)(1)(A) required the President to act within 90 days of the issuance of a report meeting the requirements of Section 232(b)(3)(A), or to implement the change within the 15-day time period allowed by Section 232(c)(1)(B), and that Proclamation 9980 was not issued within that time frame.
21-73
ARP Materials Inc. v. United States; The Harrison Steel Castings Co. v. United States
6/11/2021
20-00144; 20-00147
Baker
1581(i)
The CIT dismissed for lack of subject matter jurisdiction two importers’ suits to compel refunds of Section 301 duties collected on entries of goods from China. Both importers’ entries liquidated before USTR granted exclusions from the Section 301 duties for the goods imported; the importers alleged jurisdiction under § 1581(i).
Plaintiff ARP timely protested Customs’ imposition of the Section 301 duties for one of its five entries. Customs granted the protest and refunded the duties during the pendency of the litigation. The CIT therefore held ARP’s claim moot and that the court lacked constitutional subject matter jurisdiction.
ARP failed to timely protest Customs’ imposition of the Section 301 duties on its other four entries, and Plaintiff Harrison Steel Castings failed to timely protest Customs imposition of the Section 301 duties on either of its two entries. Because jurisdiction would have existed under 1581(a) had the importers done so and Customs denied the protests, the court found it lacked statutory subject matter jurisdiction under § 1581(i) and dismissed.
21-74
Mid Continent Steel & Wire, Inc. v. United States
6/14/2021
Consol. 18-00235
Eaton
1581(c)
The CIT sustained Commerce’s final results in the second antidumping duty administrative review of steel nails from Oman. The court concluded that substantial evidence supported Commerce’s decision to rely on a financial statement from Amatei, a Japanese nail manufacturer, to construct value for profit and indirect selling expenses. Plaintiffs contended that Commerce should have used a financial statement from Astrotech, an Indian nail manufacturer. The court rejected this because Commerce’s selection of the financial statement was reasonable. The court stated it would not reweigh the record evidence and sustained Commerce’s final results.
21-76
Asociacion de Exportadores e Industriales de Aceitunas de Mesa et al v. United States
6/17/2021
18-00195
Katzmann
1581(c)
The CIT remanded Commerce’s remand results in the countervailing duty investigation of ripe olives from Spain. The court concluded that Commerce’s interpretations of de jure specificity under Section 1677(5A), and of the meaning of “prior stage product” under Section 1677-2, were unreasonable and not in accordance with law. The court rejected Commerce’s interpretation of de jure specificity based on the unambiguous language of the statute. Commerce also unreasonably interpreted Section 1677-2 because the interpretation rendered certain portions of the statute superfluous.
21-77
Maple Leaf Marketing, Inc. v. United States et al
6/22/2021
20-00125
Kelly
Katzmann
Restani
1581(i)
The CIT dismissed Maple Leaf’s challenge to the timeliness of the imposition of Section 232 duties on imports of steel products from Canada for failure to state a claim. The court concluded that the President was timely in adjusting steel imports from Canada under Proclamation 9705. Proclamation 9705 imposed a 25 percent tariff on subject steel products and exempted the duties on steel from Canada pending the outcome of ongoing negotiations.
21-78
Zhejiang Machinery Import & Export Corp. v. United States
6/23/2021
19-00039
Katzmann
1581(c)
The CIT affirmed Commerce’s remand results in the antidumping duty administrative review of tapered roller bearings and parts thereof (finished or unfinished) from China. On remand, Commerce continued to find that Plaintiff failed to demonstrate the absence of de facto government control over its export activities. The court concluded that Commerce’s remand results were supported by substantial evidence due to the fact that Commerce had specifically explained that the All-China Federation of Trade Unions’ (ACFTU’s) ability to exercise control over labor unions and individual members. The ACFTU in China possesses a ‘legal monopoly on all trade union activities,’ according to Commerce, and “the Chinese government prohibits independent unions.” Additionally, record evidence demonstrated complete overlap between membership of the labor union of Zhejiang Sunny Import and Export Corp.—the parent company of the Plaintiff—and its employee stock ownership committee (ESOC). Commerce stated that Plaintiff failed to demonstrate how individuals on the ESOC could not act in the interests of the ACFTU when acting on behalf of the ESOC.
21-79
Dong-A Steel Company v. United States
6/24/2021
Consol. 19-00104
Katzmann
1581(c)
The CIT affirmed Commerce’s remand results in the antidumping duty administrative review of heavy walled rectangular welded carbon steel pipes and tubes from Korea. The court concluded that Commerce’s determination finding no particular market situation and its subsequent recalculation of DOSCO’s AD rate were supported by substantial evidence and in accordance with law and complied with the court’s order in Dong-A Steel I. The court also affirmed Commerce’s calculation of Consolidated Plaintiff Kukye’s review-specific average rate and found that Commerce properly declined to recalculate HiSteel’s weighted-average dumping margin to reflect the absence of a PMS on remand.
21-80
BRAL Corp. v. United States
6/29/2021
20-00154
Choe-Groves
1581(a)
The CIT partially dismissed for lack of jurisdiction BRAL’s challenge to the denial of its protests concerning twelve entries of plywood imported from China. Of those twelve entries, certain entries were originally deemed liquidated by operation of law, but were reliquidated by CBP in December 2019. Plaintiff protested the reliquidation and that protest was denied on March 7, 2020. Notwithstanding the protest denial, Customs reliquidated the entry at issue on March 13, 2020, and BRAL did not protest the March 13th reliquidation of that entry. Accordingly, the CIT found lack of (a) jurisdiction and dismissed BRAL’s claims as pertained to that entry.
21-81
In Re: Section 301 Cases
7/6/2021
Barnett
Kelly
Choe-Groves
1581(i)
In a split opinion, the CIT granted Plaintiffs’ motions for leave to file a reply and for a preliminary injunction. In evaluating the preliminary injunction factors, the Court focused on the risk of irreparable harm, concluding that the liquidation of Plaintiffs’ entries would constitute irreparable harm because it may foreclose Plaintiffs’ ability to challenge the Government’s imposition of duties paid or have those duties returned. Although persuaded that “the CIT is granted broad statutory authority to order appropriate relief” under 28 USC § 2643, including “the explicit power to order reliquidation and refunds where the government has unlawfully exacted duties,” Judges Kelly and Choe-Groves found that the Federal Circuit “has explicitly and implicitly called the breadth of the CIT’s statutory authority into question.” Discussing Shinyei, Ugine, American Signature, and Sumecht, Judges Kelly and Choe-Groves held that “the Court of Appeals has consistently refrained from relying on [the broad statutory language granting the Court authority to order whatever relief is appropriate] in finding the CIT has authority to order reliquidation or refunds in 1581(i) cases and has raised doubts about the CIT’s authority to do so.” The Court therefore found a potential for refunds to be unavailable on liquidated entries should Plaintiffs prevail – and that if refunds on liquidated entries are unavailable, liquidation would constitute irreparable harm because “it cuts off judicial review and eliminates any chance of recovery of unlawful extractions.”
Judges Kelly and Choe-Groves further found that “Plaintiffs raise sufficiently serious and substantial questions as to the proper interpretation of Section 307 of the Trade Act” to demonstrate a fair chance of success on the merits, that the balance of equities tips in Plaintiffs’ favor because of the narrowness of the relief sought (suspension of liquidation), and that the injunction would be in the public interest.
Chief Judge Barnett dissented. Although he “agree[d] with much of [the majority’s] analysis,” Chief Judge Barnett concluded that the Federal Circuit’s “binding precedent suggests no more than a remote chance that the appellate court would find that this court is not empowered to provide relief with respect to any liquidated entries,” and therefore concluded that Plaintiffs had failed to establish a likelihood of irreparable harm.
21-82
IDI International Development and Investment Corp. v. United States
7/6/2021
20-00107
Baker
1581(c)
The CIT sustained Commerce’s decision to deny IDI International Development and Investment Corporation’s separate rate application in the antidumping duty investigation of certain frozen fish fillets from Vietnam. IDI failed to demonstrate the lack of de facto government control over the selection of management. Commerce found that a Vietnamese government official and Communist Party member represented the Vietnamese government on the board of IDI and its parent company, and that there was no record evidence supporting the notion that the board of IDI ever acted against the government official. As a result, Commerce determined that IDI’s entries were subject to the Vietnam-wide rate.
21-83
Garg Tube Export LLP and Garg Tube Ltd. v. United States
7/9/2021
20-00026
Kelly
1581(c)
The CIT remanded Commerce’s final determination in the antidumping duty administrative review of carbon steel standard pipes and tubes from India. The court remanded for further explanation or reconsideration Commerce’s adjustment to reported costs to account for a cost-based particular market situation. While Commerce may use any reasonable methodology to determine constructed value where a cost-based PMS interferes with its calculations under 19 § U.S.C. 1677b(e), it does not empower Commerce to make such an adjustment while relying on home market or third country market sales to determine normal value. Additionally, the CIT found that to the extent that Commerce applies 19 USC § 1677a(e) and 19 USC § 1677e(b) against Garg, it must do more to support its determination.
21-86
Midwest Fastener Corp. v. United States
7/12/2021
17-00231
Kelly
1581(c)
The CIT sustained Commerce’s third remand redetermination finding that strike anchors are not within the scope of the antidumping duty order on certain steel nails from China. The Court of Appeals for the Federal Circuit ordered the CIT to reconsider its ruling in Midwest I in accordance with the Court of Appeal’s decision in OMG, Inc. v. United States (which dealt with a similar scope issue pertaining to the AD order covering nails from Vietnam). In accordance with the Court of Appeals’ decision in OMG, Commerce’s finding that Midwest’s strike pin anchors are not “nails…constructed of two or more pieces” and are therefore not covered by the PRC Nails Order was reasonable, as Midwest’s and OMG’s anchors are substantially similar.
21-87
Ancientree Cabinet Co., Ltd. v. United States
7/12/2021
20-00114
Katzmann
1581(c)
The CIT remanded Commerce’s final determination for further explanation in the antidumping duty investigation of wooden cabinets and vanities from China. The CIT found that Commerce’s selection of Romania as the primary surrogate country was supported by substantial evidence and Commerce’s selection of surrogate value was supported by substantial evidence and sufficiently specific. The CIT found that Commerce’s financial ratio calculation for the Romanian wooden cabinets manufacturer was arbitrary and capricious.
21-88
Hyundai Steel Co. v. United States
7/19/2021
Consol. 18-00154
Choe-Groves
1581(c)
The CIT remanded Commerce’s second remand results in the antidumping duty administrative review of circular welded non-alloy steel pipe from Korea. The CIT found that Section 1677b(b)(1) does not authorize Commerce to apply a cost-based particular market situation adjustment for the purpose of the sales-below-cost test. According to the court, Commerce made an unlawful particular market situation determination that was not in accordance with the law. The court remanded the PMS determination and adjustment to the agency for reconsideration.
21-89
Jaramillo Spices Corp. v. United States
6/29/2021
20-00154
Choe-Groves
1581(a)
The CIT dismissed Plaintiff’s challenge to CBPs assessment of liquidated damages for lack of jurisdiction. Jaramillo was assessed liquidated damages for failure to redeliver to CBP’s custody a shipment of tamarind imported from Mexico and determined to by the Food and Drug Administration to be adulterated. Jaramillo submitted two filings, which CBP construed as a petition and supplemental petition for mitigation, respectively; both were denied. The Court found (a) jurisdiction to be inappropriate because (setting aside whether CBP’s denial of Jaramillo’s requests for mitigation constituted denials of a protest) that denial occurred more than 180 days before Jaramillo instituted its action at the CIT. The Court further concluded that to be considered a protestable decision giving rise to (a) jurisdiction, the decision must be made by Customs. Here, the Court found that “[i]f Customs merely was effectuating a decision of the FDA to refuse admission, under which Customs lacked discretion over whether to issue a notice for redelivery, then the redelivery demand was not a protestable decision, and the court would lack jurisdiction even had plaintiff followed all procedural requirements for contesting a protest denial.”
The Court further declined to exercise (i) jurisdiction because § 1581(i)(1)(c) confers jurisdiction only pertaining to matters arising out of laws providing for “embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety”; the Court found FDA’s denial of admittance to be grounded in protection of public health and (i) jurisdiction therefore unavailable.
21-90
Shelter Forest International Acquisition, Inc. et al v. United States
7/21/2021
Consol. 19-00212
Restani
1581(c)
The CIT sustained Commerce’s remand results in the antidumping and countervailing duty anticircumvention inquiry of hardwood plywood from China. The CIT found that Commerce’s determination that Shelter Forest’s majority urea-formaldehyde glue met the criteria of the inquiry merchandise and that the inquiry merchandise was not later-developed merchandise per 19 U.S.C. § 1677j(d) was supported by substantial evidence. The court also sustained Commerce’s determination that Shelter Forest’s product was commercially available within the meaning of 19 U.S.C. § 1677j(d) prior to the issuance of AD/CVD orders.
21-95/21-96
Simpson Strong-Tie Company v. United States
8/3/2021
17-00287/18-00062
Barnett
1581(c)
The CIT sustained Commerce’s final remand results finding that Plaintiff’s split-drive anchors and crimp-drive anchors are not within the scope of the AD order on certain steel nails from China. The CIT had remanded Commerce’s scope determination at the agency’s request following the Court of Appeal’s decision in OMG, Inc. v. United States (which dealt with a similar scope issue pertaining to the AD order covering nails from Vietnam). Due to the similarities between the anchors in OMG and Simpson’s anchors, the court upheld Commerce’s determination that “Simpson’s anchors are not covered by the scope of the [AD Order].”
21-97
Heze Huayi Chemical Co., Ltd. and Juancheng Kangtai Chemical Co., Ltd. v. United States
8/5/2021
20-00058
Reif
1581(c)
The CIT sustained Commerce’s final determination in the AD administrative review of chlorinated isocyanurates from China. The CIT sustained 1) Commerce’s selection of Mexico as primary surrogate country, 2) Commerce’s selection of surrogate values and financial statements and 3) Commerce’s CIF adjustment. The court found that Commerce’s determination that Mexico was a “significant producer of comparable merchandise” was permissible under the statute and therefore, Commerce met its obligation to use the “best available information” in selecting Mexico as a primary surrogate country. The court also found that Commerce reasonably exercised its discretion in selecting surrogate values and that the agency provided a legitimate reason for its use and adjustment of FOB data.
21-98
Changzhou Trina Solar Energy Co., Ltd. et al v. United States
8/10/2021
Consol. 18-00176
Kelly
1581(c)
The CIT sustained Commerce’s second remand redetermination in the fourth AD administrative review of crystalline photovoltaic cells (whether or not assembled into modules) from China. On remand, Commerce decided to rely on Xenata XS data instead of Maersk data to value Plaintiff’s freight expenses. The court found that Commerce’s conclusion that the Xenata XS data was more representative and comprehensive than the Maersk data was supported by substantial evidence and in accordance with law. For these reasons and because all parties agreed to the remand redetermination, Commerce’s results were sustained.
21-99
LG Chem, Ltd. v. United States
8/13/2021
20-00096
Baker
1581(c)
The CIT sustained Commerce’s final determination in the AD investigation of acetone from Korea. The CIT found that Commerce’s adjustment of Plaintiff’s costs using Kumho’s direct-assignment methodology was supported by substantial evidence. The CIT found that Plaintiff’s value-based methodology did not reasonably reflect its cost of production due to its use of Chinese prices. Additionally, the court concluded that any error made by Commerce by rejecting Plaintiff’s factual information was harmless and not prejudicial. Finally, the court found that Commerce’s calculation of Plaintiff’s general and administrative expenses based on company-wide financial statements instead of division-specific financial statements was reasonable and supported by substantial evidence, as it captured all the company’s general and administrative expenses.
21-100
Habas Sinai Ve Tibbi Gazlar Istihsal Endustrisi v. United States
8/13/2021
20-00065
Katzmann
1581(c)
The CIT sustained Commerce’s final results in the countervailing duty administrative review of steel concrete rebar from Turkey. The court found that Commerce reasonably rejected use of Comtrade and Eurostat data for a tier-two benchmark calculation, which is permitted when the record cannot support calculation of a tier-one benchmark under 19 C.F.R. § 351.511(a)(2)(i)–(ii). The court concluded that Commerce reasonably determined that the Comtrade data was unreliable for purposes of an LTAR analysis. The court also found that Commerce provided a reasonable explanation for relying upon IEA data in calculating its tier-three benchmark, which is permitted where the record cannot support calculation of a tier-two benchmark.
21-103
Otter Products, LLC v. United States
08/18/2021
13-00269
Kelly
1581(a)
The CIT denied Plaintiff’s motion to enforce and motion for reply. The CIT held that Plaintiff cannot use the Court’s 2015 classification judgment to compel reliquidation of entries associated with a separate prior disclosure that was not part of the summons for the 2015 case.
In 2015, the CIT issued an opinion holding that CBP erroneously classified entries of protective cases under HTSUS subheading 4202.99.00. The Court affirmed Plaintiff’s classification of the subject merchandise under HTSUS subheading 3926.90.99, subject to a lower duty rate of 5.3% and ordered the U.S. Government to reliquidate the subject entries covered by the protest that was identified in the Plaintiff’s summons and to refund all duties overpaid, plus interest.
In the present case, the Plaintiff argued that the Court should require the Defendants to re-open a 2013 prior disclosure and reliquidate the associated entries on the grounds that the Court’s 2015 judgment applies not only to the subject entries that were covered by the protest identified on Plaintiff’s summons, but also to all other entries of the same or similar merchandise. The Defendants argued that the prior disclosure and associated entries were not part of the subject protest listed on the 2015 summons and therefore the CIT does not have jurisdiction over the prior disclosure entries. The Court agreed with the Defendants and held that the 2015 judgment only applied to the subject protest and associated subject entries listed in the summons.
21-104
Committee Overseeing Action for Lumber Int’l Trade Investigations or Negotiations v. United States
8/18/2021
Consol. 19-00122
Barnett
1581(c)
The CIT sustained Commerce’s determination that the potential sources of authority considered on remand do not supply a legal basis for the adoption of 19 C.F.R. § 351.214(k) or Commerce’s conduct of an expedited review process for CVD rates. The lawfulness of the regulation was part of Plaintiff’s challenge to Commerce’s final results in the CVD expedited review of certain softwood lumber products from Canada. The CIT vacated 19 C.F.R. § 351.214(k) and the Final Results of Expedited Review. The CIT additionally found that prospective application of the vacatur of the Final Results of Expedited Review is merited. Thus, upon entry of judgment, Commerce must issue a Timken-like Notice rescinding the Final Results of Expedited Review, reinstate the excluded companies in the CVD Order prospectively, and impose a cash deposit requirement for all companies that were covered by the Final Results of Expedited Review.
21-105
Echjay Forgings Pvt. Ltd. v. United States
8/20/2021
Consol. 18-00230
Katzmann
1581(c)
The CIT sustained Commerce’s remand results in the AD investigation of stainless-steel flanges from India. The court found that Commerce adequately explained its decision to not collapse the entities owned by the Doshi family.
21-106
Logitech, Inc. v. United States
8/24/2021
Consol. 19-00072
Gordon
1581(c)
The CIT held that Logitech Inc.’s videoconferencing cameras where properly classifiable under HTSUS heading 8517 and thereby eligible for duty-free treatment. The CIT held that CBP incorrectly classified the merchandise as “television cameras” under HTSUS subheading 8525.80.3010, with a duty rate of 2.1 percent ad valorem.
The CIT denied both parties cross-motions for summary judgment and determined that since Heading 8517 is a principal use provision, the Court must undertake an analysis of the principal use factors provided in United States v. Carborundum. Pursuant to the Carborundum factors, the Court determined that the subject merchandise’s physical characteristics, use, economic practicality and expectations of the ultimate purchaser support a classification under Heading 8517. The CIT ultimately found that subject merchandise were primarily used for two-way communication, rather than for one-way broadcasting and therefore are classifiable under HTSUS subheadings 8517.62.00 and 8517.69.00.
21-107
Porkarna Engineered Stone Ltd. v. United States
8/25/2021
Consol. 20-00127
Gordon
1581(c)
The CIT sustained Commerce’s final determination in the AD investigation of certain quartz surface products from India. The court sustained Commerce’s decision to include Plaintiff’s paid sample sales in the U.S. sales database when calculating Plaintiff’s AD rate.
21-109
MCC Holdings DBA Crane Resistoflex v. United States
8/26/2021
18-00248
Stanceu
1581(c)
The CIT remanded Commerce’s remand redetermination in a challenge to the agency’s scope determination for the AD order on cast iron pipe fittings from China. According to the court, Commerce misinterpreted the evidence that it cited from the ITC report and the evidence did not support its determination that Plaintiff’s flanges are subject merchandise. The CIT remanded the decision to Commerce for the agency to reconsider its decision considering the deficiencies—whether Plaintiff’s flanges were within the scope of the AD order was not decided by the court but is to be decided by Commerce upon remand.
21-110
Star Pipe Products v. United States
8/26/2021
17-00236
Stanceu
1581(c)
The CIT remanded Commerce’s remand redetermination in a challenge to the agency’s scope determination for the AD order on cast iron pipe fittings from China. According to the court, Commerce failed to address evidence that ductile iron flanged fittings were outside the scope of the ITC investigation. The CIT remanded the decision to Commerce for the agency to reconsider its decision considering the deficiencies—whether Plaintiff’s flanges were within the scope of the AD order was not decided by the court but is to be decided by Commerce upon remand.
21-112
Hyundai Steel Company v. United States
8/27/2021
20-03799
Choe-Groves
1581(c)
The CIT remanded Commerce’s final results in the CVD administrative review of certain hot-rolled steel flat products from Korea. The court remanded Commerce’s application of adverse facts available because it did not identify the deficiencies in Plaintiff’s submissions.
