U.S. Court of Appeals for the Federal Circuit
20-1506
Habas Sinai Ve Tibbi Gazlar v. United States
3/30/2021
Newman, Reyna, Stoll
The Federal Circuit affirmed the CIT’s decision affirming the U.S. Department of Commerce’s final affirmative determination imposing a 14.01 percent countervailing duty on imports of certain steel concrete reinforcement bar from the Republic of Turkey. The Federal Circuit found that Commerce’s use of an adverse facts available countervailable subsidy rate of 14.01 percent was consistent with the overall statutory regime. In the original investigation, Habas had failed to disclose its use of the duty drawback program from which it benefitted, and therefore Commerce was within its statutory authority to draw adverse inferences concerning the withheld information. Specifically, the Federal Circuit found that once a party withholds information requested by Commerce, it invites Commerce to rely on information that is not limited to the information obtained in the course of the investigation. The statute requires Commerce to corroborate secondary information not perfectly, but “to the extent practicable.” The Federal Circuit held that Commerce’s use of the 14.01 percent rate in this case was consistent with the overall statutory regime.
20-1663
Janssen Ortho, LLC v. United States
4/26/2021
Prost, Mayer, Wallach
The Federal Circuit affirmed the CIT’s decision that classification resulted in duty free treatment of Janssen’s darunavir ethanolate, the active ingredient in Prezista, a medication for the treatment of HIV, under the HTSUS and the Pharmaceutical Appendix to the Tariff Schedule.
20-1918
Deacero S.A.P.I. DE C.V. v. United States
4/30/2021
Wallach, Chen, Hughes
The Federal Circuit affirmed the CIT’s decision to sustain Commerce’s determination to apply total adverse facts available (AFA) against Deacero because Deacero mischaracterized the nature of certain changes to its database and also withheld critical information from Commerce. In the underlying proceeding, Commerce gave Deacero a chance to remedy or explain its cost of production revisions and to support them with record evidence, but Deacero failed to do so. Accordingly, the Federal Circuit held that Commerce’s decision to disregard all or part of the original and subsequent responses was supported by substantial evidence and otherwise in accordance with law. The Federal Circuit also upheld Commerce’s selection of the highest margin alleged in the petition as Deacero’s AFA rate and Commerce’s reliance on its pre-initiation analysis of the adequacy and accuracy of the information in the petition to corroborate the AFA rate.
20-1461
Uttam Galva Steels Limited v. United States
5/14/2021
Dyke, Mayer, and Chen
On May 14, 2021, the Federal Circuit affirmed the CIT’s decision to sustain Commerce’s determination to grant a duty drawback adjustment under 19 U.S.C. § 1677a(c)(1)(B) that resulted in no dumping margin. Commerce made duty drawback adjustments by increasing the export price by the total amount of drawback duties, even though the inputs for which the drawback was granted were not incorporated into the exported goods. The Federal Circuit affirmed the CIT’s decision to sustain this determination because 19 U.S.C. § 1677a(c)(1)(B) only requires that the drawback is issued “by reason of the exportation” and does not require that the input was incorporated into the good.
U.S. Court of International Trade
21-67
Fabuwood Cabinetry Corp. v. United States
5/27/2021
Consol. 18-00208
Katzmann
1581(c)
The CIT sustained Commerce’s remand results in an antidumping and countervailing duty scope ruling concerning certain hardwood plywood products from China. The court concluded that Commerce’s unchallenged remand results complied with the remand instructions from Fabuwood I —which ordered Commerce to further explain or reconsider its decision to accept the petitioner’s scope ruling request. On remand, Commerce reversed itself and concluded that the scope ruling request was deficient and did not provide a proper basis to issue a scope ruling. The CIT affirmed the remand on the basis that it was lawful and supported by substantial evidence.
21-66
North American Interpipe, Inc. v. United States
Evraz Inc. NA v. United States
AM/NS Calvert LLC v. United States
California Steel Indus., Inc. v. United States
Valbruna Slater Stainless, Inc. v. United States
Voestalpine High Performance Metals Corp. v. United States
05/25/2021
20-03825
20-03869
21-00005
21-00015
21-00027
21-00093
Baker
1581(i)
The CIT held that domestic entities were ineligible to intervene in Plaintiffs’ suit as a matter of law. Plaintiffs’ filed suit against Commerce to challenge Commerce’s denial of Plaintiffs' Section 232 exclusion request and sought a refund of Section 232 tariffs paid. Domestic steel producers that objected to the Plaintiffs’ exclusion requests before Commerce sought to intervene in this litigation on the side of the USG. The CIT denied the domestic parties' motion to intervene.
The proposed intervenors moved to intervene as a matter of right under Rule 24(a)(2), Rule 24(b)(1)(A) and Rule 24(b)(1)(B). Under Rule 24(a)(2), the CIT found that the proposed intervenors had no legal protected interest in defending Commerce’s denials of Plaintiffs’ exclusion requests; any interest that the intervenors did have was insufficiently direct and immediate; and that the intervenors failed to demonstrate that the USG will not adequately protect the intervenors' interest. Under Rule 24(b)(1)(A), the CIT found that the intervenors failed to establish standing required under the permissive intervention statute invoked by the intervenors. Lastly, under Rule 24(b)(1)(b), the CIT found that the proposed intervenors shared no “defense” with the USG since the Plaintiffs' only conceivable claim in this suit was against the USG for refund of tariffs paid.
21-65
Icdas Celik Enerji Tersane Ve Ulasim Sanayi, A.S. v. United States
5/20/2021
Consol. 18-00143
Katzmann
1581(c)
The court sustained Commerce’s second remand results in the antidumping duty investigation of carbon and alloy steel wire rod from Turkey. The court concluded that Commerce’s duty drawback methodology and calculation of AD margins were in accordance with law and supported by substantial evidence. The court found that Commerce followed the second remand order to recalculate normal value without making a circumstance of sale adjustment regarding the duty drawback adjustment to export price or constructed export price.
21-64
Guizhou Tyre Co., Ltd. v. United States
5/19/2021
Consol 19-00032
Reif
1581(c)
The CIT sustained in part and remanded in part Commerce’s final results in the countervailing duty administrative review of truck and bus tires from China. The CIT sustained the issuance of the CVD Order while the Commission’s remand determination was still on appeal to the CIT. The CIT also sustained Commerce’s decision to apply AFA to the loans presented at verification. The CIT remanded Commerce’s decision to apply AFA to the grants presented at verification as well as the application of AFA related to use of EBCP. With respect to Commerce’s use of benchmarks to determine whether inputs were provided for less than adequate remuneration (“LTAR”), the CIT remanded Commerce’s adjustment to ocean freight and import duties and Commerce’s selection of actual import prices as benchmarks for synthetic rubber and butadiene for further explanation. Finally, the CIT remanded Commerce’s decision to not assign Jinhaoyang the same cash deposit rate as Double Coin because Commerce failed to provide a reasonable explanation.
21-62/21-63
Trans Texas Tire, LLC v. United States
5/18/2021
Consol 19-00188/19-00189
Katzmann
1581(c)
The CIT sustained in part and remanded in part Commerce’s final determinations in the antidumping and countervailing duty investigations of certain steel wheels 12 to 16.5 inches in diameter from China. The court concluded that Commerce’s final scope determinations and its CVD calculation were supported by substantial evidence and in accordance with law. However, the court found that Commerce unlawfully assessed duties from the original suspension of liquidation because Commerce failed to provide adequate notice. The court remanded the case to Commerce to re-issue the instructions to comply with the opinion.
21-61
DIS Vintage LLC v. United States
05/17/2021
16-00013
Reif
1581(a)
The CIT granted in part the USG’s cross motion for summary judgment and did not find in favor of the Plaintiffs that contested the classification of the subject merchandise as “commingled goods” that are subject to the highest duty rate for any part thereof. Plaintiffs challenged CBP’s classification of secondhand clothing as “commingled” and argued that the clothing were “worn” and therefore were properly classified under Heading 6309 and should be “duty free”. The CIT analyzed 41 samples of the subject merchandise. The parties agreed that 16 samples showed signs of wear. The CIT determined that out of the remaining 25 samples, 16 were “worn” and nine showed no signs of appreciable wear. Therefore, the goods were commingled and pursuant to General Note 3 of the HTSUS, subject to the highest rate of duty applicable, which in this case was 16.6%.
21-60
Guizhou Tyre Co., Ltd. et al v. United States
5/14/2021
Consol. 17-00100
Stanceu
1581(c)
The CIT sustained in part and remanded in part Commerce’s remand redetermination in the antidumping duty administrative review of off-the-road tires from China. The court sustained Commerce’s decision to redetermine Xugong’s dumping margin upon recalculating export price and constructed export price to remove the deduction from U.S. price for Chinese value-added tax. The court also sustained Commerce’s decision to apply the rate of 16.78% to unexamined separate-rate respondents. The CIT remanded Commerce’s decision to deny separate-rate status to Aeolus and GTC, because Commerce’s determination that the companies were under de facto government control was unsupported by substantial evidence.
21-59
Coalition of American Flange Producers v. United States
5/13/2021
18-00225
Katzmann
1581(c)
The CIT sustained Commerce’s remand results in the antidumping duty investigation of stainless steel flanges from India. Specifically, at issue was Commerce’s classification of a sale as an export sale, thereby excluding it from Chandan’s home market database. As required by the court in its remand order, Commerce addressed 1) the export quality packaging provision, 2) Chandan’s treatment of the challenged agreement’s logo provision, and 3) the final payment and delivery terms of the sale. The court ultimately accepted Commerce’s explanation of the previously unaddressed evidence and concluded that, given the totality of the evidence, Commerce’s remand results were based on substantial evidence.
21-58
Calgon Carbon Corporation et al v. United States
5/11/2021
Consol 18-00232
Barnett
1581(c)
On May 11, 2021, the CIT sustained Commerce’s second remand redetermination in the tenth antidumping duty administrative review of certain activated carbon from China. The court sustained Commerce’s surrogate value methodology as lawful and supported by substantial evidence. Commerce’s selection of Thai data, which excluded French imports, to calculate a surrogate value for Respondent’s carbonized material complied with the court’s order in Calgon II.
21-56
Clearon Corp. et al v. United States
05/6/2021
Consol. 17-00171
Eaton
1581(c)
The CIT sustained Commerce’s second remand results in the countervailing duty administrative review of chlorinated isocyanurates from China. The court found that Commerce had sufficiently complied with the court’s instructions in Clearon II by relying on uncontroverted record evidence supporting Heze’s claims of non-use of the Export Buyer’s Credit Program (“EBCP”). Though Commerce did not “confer with the parties on a verification procedure” or verify Heze’s claims of non-use as directed by the court, the court found that Commerce sufficiently complied with the instructions in Clearon II. Commerce used the alternative set out in Clearon II– relying on the uncontroverted record evidence supporting Heze’s claims of non-use of EBCP– and therefore verification was not required.
21-55
Risen Energy Co., Ltd. v. United States
05/5/2021
Consol. 19-00153
Kelly
1581(c)
The Court sustained Commerce’s remand redetermination in the fifth antidumping duty administrative review of crystalline silicon photovoltaic cells from China. Commerce’s use of facts otherwise available, and decision not to use partial AFA to calculate Risen’s dumping margin, comported with the relevant statute and was consistent with the Mueller directive, which states that Commerce may incorporate an adverse inference under 19 U.S.C. § 1677e(a) in calculating a cooperative respondent’s margin, if doing so will yield an accurate rate, promote cooperation, and thwart duty evasion.
21-54
Ferrostaal Metals GmbH et al v. United States
05/04/2021
20-00018
Reif
1581(c)
The CIT sustained Commerce’s final determinations in the AD/CVD anticircumvention inquiries of certain cold-rolled steel flat products from Korea. The CIT found that Commerce’s decisions to reject PMF’s quantity and value responses, and to apply AFA to demonstrate that PMF was unable to trace its inputs, were reasonable and in accordance with law.
21-51
Husteel Co., Ltd. v. United States
05/3/2021
Consol 19-00107
Choe-Grovers
1581(c)
The CIT sustained in part and remanded in part the U.S. Department of Commerce’s remand results in the 2016–2017 administrative review of the antidumping duty order on circular welded non-alloy steel pipe from Korea. The court remanded Commerce’s particular market situation determinations and adjustments based on the CIT’s determination in Saha Thai II, in which the court concluded Commerce must “reconsider its approach of basing normal value on constructed value” in calculating a particular market situation adjustment. The court sustained Commerce’s treatment of Hyundai Steel and Hyundai Steel (Pipe Division) as a single entity based on record evidence including the use of the same address provided for the headquarters of both.
21-49
Jilin Forest Indus. Jinqiao Flooring Grp. Co. v. United States
04/29/2021
18-00191
Eaton
1581(c)
The CIT remanded Commerce’s final results of the fifth administrative review of multilayered wood flooring from China. The CIT held that Commerce’s determination of de facto government control of Jilin lacked the support of substantial evidence and was not in accordance with law. Additionally, the CIT ordered Commerce to adequately explain the application of its NME policy to Jilin after selecting Jilin as a mandatory respondent.
21-48
Uttam Galva Steels Ltd. v. United States
04/29/2021
19-00044
Gordon
1581(c)
The CIT sustained Commerce’s second remand results of the administrative review of the CVD order on certain corrosion-resistant steel products from India. The CIT upheld Commerce’s decision to apply a different AFA rate to Uttam than that of another respondent. The CIT held that Commerce reasonably explained its application of partial AFA to one respondent and total AFA to Uttam.
21-47
Hyundai Steel Co. v. United States
04/27/2021
Consol. 19-00099
Eaton
1581(c)
The CIT sustained in part and remanded in part to Commerce the final results of the first administrative review of the AD order on cold-rolled steel flat products from Korea. The CIT found that Commerce’s use of AFA based on Hyundai’s alleged withholding of requested information could not be sustained because Commerce failed to notify Hyundai of the nature of the alleged deficiencies and provide Hyundai an opportunity to remediate. Additionally, the CIT sustained Commerce’s finding that U.S. Steel untimely requested to rescind the review with regard to one company and Commerce’s decision not to collapse that company with other affiliated producers and treat them as one entity.
Acquisition 362, LLC v. United States
04/21/2021
20-03762
Vaden
1581(a)
The CIT granted the USG’s motion to dismiss for lack of subject matter jurisdiction. Specifically, Plaintiff challenged the denial of its protests of CBP’s assessment of countervailing duties on the importation of certain vehicle and light truck tires from China. The CIT held that the protests were untimely filed and that CBP’s receipt of amended countervailing duty rates from Commerce is not a “Customs decision” that triggers the 180-day time-period for filing protests because determinations of AD/CVD rates are Commerce decisions, not Customs decisions.
Qingdao Sea-Line Int'l Trading Co. v. United States
Public version posted 04/16/2021.
04/16/2021
19-00145
Katzmann
1581(c)
The CIT sustained Commerce’s final results in the administrative review of garlic from China where Commerce applied adverse facts available to determine plaintiff’s antidumping margin. The CIT concluded that Commerce correctly identified a gap in the record and used facts available to calculate Qingdao’s margin because it failed to cooperate to the best of its ability. Because of these holdings, the CIT declined to address Qingdao’s challenge to Commerce’s selection of a surrogate country because Commerce relied on total AFA and not surrogate value information to calculate the dumping margin.
SeAH Steel Corp. v. United States
04/14/2021
Consol. 19-00086
Choe-Groves
1581(c)
The CIT sustained in part and remanded in part Commerce’s final results in the 2016-2017 administrative review of the AD order on oil country tubular goods from Korea. The CIT sustained Commerce’s calculation of constructed value profit, differential pricing analysis, exclusion of freight revenue profit, and application of an expense ratio to SeAH’s non-further manufactured products. The CIT remanded with instructions for Commerce to further explain or reconsider its particular market situation determination and adjustment; reallocate costs for Nexteel’s non-prime merchandise based on actual costs of prime and non-prime products; further explain or reconsider its treatment of SeAH’s production line suspension costs; recalculate SeAH’s further manufacturing cost; and further explain or reconsider its decision to include SeAH’s inventory valuation losses as G&A expenses.
Sao Ta Foods Joint Stock Co. v. United States
04/14/2021
Consol. 18-00205
Kelly
1581(c)
The CIT sustained Commerce’s second remand results in the twelfth administrative review of the AD order covering certain frozen warmwater shrimp from Vietnam. The CIT in its first remand had instructed Commerce to support and explain its decision to continue to deny separate rate status to two factory names of Thuan Phuoc Seafoods and Trading Corporation. In the Second Remand Results, Commerce granted the two factories separate rate status as trade names of Thuan Phuoc, under respectful protest and limited to the twelfth administrative review.
Novolipetsk Steel Pub. Joint Stock Co. v. United States
04/13/2021
20-00031
19-00172
Kelly
1581(c)
The CIT granted the USG’s motion to dismiss Novolipetsk’s complaint and, accordingly, dismissed the Plaintiffs' motion for judgment on the agency record and dismissed Plaintiffs' motion to compel, supplement, and conduct discovery as moot. Plaintiffs did not have entries during the POR and did not contend that they were a reseller. The CIT held that there was no actual case or controversy in this instance because Commerce did not calculate and assign a company-specific rate for Plaintiffs and, thus, adjudicating Plaintiffs' claims would result in a sort of inappropriate advisory opinion on abstract propositions of law that Courts must avoid. Accordingly, the CIT dismissed Plaintiffs' complaint.
The CIT also denied Plaintiffs' motion to alter and amend or reconsider the CIT’s decision sustaining Commerce’s final results in the 2016-2017 administrative review of the AD order on certain hot-rolled flat rolled carbon-quality steel products from Russia. Plaintiffs argued that the court’s opinion did not address a particular count in full. The CIT held that Plaintiffs failed to present a clear factual or legal error that warrants disturbing the finality of the court’s judgment.
Aspects Furniture Int'l, Inc. v. United States
04/09/2021
Consol. 18-00222
Barnett
1581(a)
The CIT granted the USG’s motion for summary judgment. Plaintiffs’ challenged the denial of their respective protests arguing that CBP could not voluntarily reliquidate entries that deemed liquidated pursuant to 19 U.S.C. § 1504(d). The CIT found that Commerce’s liquidation instructions were “notice” for purposes of triggering the time-period from which the deemed liquidation date runs. The CIT also conducted an analysis of when the new version of section 1501 enacted as part of TFTEA went into effect and determined it went into effect on 2/24/2016 and that the pre-TFTEA version applies only if an entry deemed liquidated prior to 2/24/2016.
Shanxi Hairui Trade Co. v. United States
04/07/2021
Consol. 19-00072
Gordon
1581(c)
The CIT sustained Commerce’s results in the administrative review of the AD order on certain steel nails from China. The CIT held that the existence of mislabeled boxes indicating their origin in another country not subject to the order justifies Commerce’s conclusion that a particular supplier was engaged in a fraudulent transshipment scheme. The CIT sustained as reasonable Commerce’s finding that Dezhou Hualude impeded the investigation and that it could or should reasonably have been aware of the supplier’s fraud and should have exercised its influence to induce the supplier to desist from any fraudulent activity. The CIT sustained as reasonable Commerce’s consequent determination to apply partial AFA.
Rebar Trade Action Coal. V. United States
Public version posted 04/14/2021.
04/06/2021
20-00071
Barnett
1581(c)
The CIT sustained Commerce’s final results in the first administrative review of the AD order on steel concrete reinforcing bar from Turkey. RTAC challenged Commerce’s cost averaging methodology and reliance on one month’s data for one of the quarters for purposes of determining whether to depart from using period-wide average costs in its AD analysis. The CIT sustained Commerce’s consideration of contemporaneous cost data and found Commerce’s quarterly cost averaging methodology to be in accordance with law. The CIT also found that Commerce’s reliance on the June 2018 cost data as the sixth quarter for purposes of its quarterly cost averaging analysis was supported by substantial evidence. Finally, the CIT sustained Commerce’s quarterly cost averaging analysis as supported by substantial evidence and in accordance with the law.
PrimeSource Bldg. Prods., Inc. v. United States
04/05/2021
20-00032
Stanceu
Choe-Groves
Baker
1581(i)
The CIT granted summary judgment sua sponte in favor of Plaintiff, a U.S. importer of steel nails. PrimeSource contested Proclamation 9980 issued by the President of the United States in January 2020, instituting additional Section 232 tariffs on derivative steel products including nails. The CIT declared Proclamation 9980 invalid because the President issued the Proclamation after the congressionally-delegated authority to adjust imports of the products addressed in that proclamation. The CIT rejected the USG’s position that Congress intended for the time limitations to be merely directory and found that the untimeliness of Proclamation 9980 a significant procedural violation. As a remedy, the CIT directed that the entries affected by the litigation be liquidated without the assessment of duties pursuant to Proclamation 9980, with refund of any deposits for such duty liability that may have been collected pursuant to Proclamation 9980. Also, should any of Plaintiff’s merchandise at issue in the litigation have liquidated with the assessment of 25% duties pursuant to Proclamation 9980, Plaintiff is entitled to reliquidation of those entries and a refund of any duties deposited or paid, with interest.
United States v. Greenlight Organic, Inc.
03/30/2021
17-00031
Choe-Groves
1582
The CIT opined on several issues involving a discovery dispute in a claim brought under 19 U.S.C. § 1592. The USG brought a civil enforcement action seeking to recover unpaid duties and fees and to affix penalties, alleging that Defendants imported wearing apparel into the United States fraudulently. The CIT held, inter alia, that prioritizing in-person depositions over potential health risks would pose an undue burden on witnesses during the COVID-19 pandemic. Additionally, the CIT declined to compel the USG to produce documents regarding entry-specific loss of revenue and domestic value calculations because those were not documents it had in its possession.
Vicentin S.A.I.C. v. United States
Public version posted 04/02/2021.
03/25/2021
Consol. 18-00111
Kelly
1581(c)
The CIT sustained Commerce’s remand redetermination supporting its particular market situation (PMS) adjustment for soybean input prices when determining constructed value. In a prior decision, the CIT remanded for further explanation or reconsideration of Commerce’s decision – when determining constructed value of biodiesel from Argentina – to disregard reported costs for soybeans in Argentina, and to instead use world market prices for soybeans as a means of correcting for a cost distortion cause by a PMS. On remand, Commerce, under respectful protest, conducted a pass-through analysis of prices for U.S. sales of subject Argentine biodiesel to demonstrate that the countervailed export tax regime did not affect the difference between the constructed value of the merchandise and U.S. prices in this instance. According to Commerce, a showing that the subsidy at issue did not affect US prices assuages the court’s concerns that the CVDs remedying those subsidies also cures the same harm addressed by the PMS adjustment here.
Celik Halat ve Tel Sanayi A.S. v. United States
03/24/2021
20-03848
Kelly
1581(i)
The CIT dismissed Plaintiff’s complaint challenging Commerce’s preliminary determination in the CVD investigation into prestressed concrete steel wire strand from Turkey. The CIT held that Commerce’s preliminary determination had merged into the final determination and thus was unreviewable by the CIT.
Celik Halat ve Tel Sanayi A.S. v. United States
03/24/2021
20-03843
Kelly
1581(i)
The CIT dismissed Plaintiff’s complaint challenging Commerce’s preliminary determination in the AD investigation into prestressed concrete steel wire strand from Turkey. The CIT held that Commerce’s preliminary determination had merged into the final determination and thus was unreviewable by the CIT.
New American Keg v. United States
Public version posted 03/30/2021.
03/23/2021
20-00008
Baker
1581(c)
American Keg raised three issues: (1) whether substantial evidence supports Commerce’s use of Malaysian labor data as a surrogate for Ningbo Master’s labor costs in the face of record evidence of forced labor in Malaysia; (2) whether substantial evidence supports Commerce’s verification of Ningbo Master’s corrections; and (3) whether substantial evidence supports Commerce’s grant of separate rate status to Jingye and Ulix. First, the CIT remanded to Commerce to consider record evidence that Malaysia’s wage data may be distorted or unreliable due to forced labor and heavy reliance on foreign workers to depress local wages. The CIT held that Commerce did not explain why the Malaysia data under this forced labor cloud are preferable to the Brazilian dataset. Second, the CIT remanded to Commerce to reconsider its verification of Ningbo Master’s corrections to its material inputs and, if necessary, recalculate Ningbo Master’s rate. Finally, the CIT held that Commerce’s decision that Jingye is eligible for separate rate status is supported by substantial evidence, whereas Commerce’s decision to grant separate rate status to Ulix is remanded for further consideration.