*Stephen Swindell is the Supervisor and Scott Warner is the Operations Manager for

Case Management at the Court of International Trade.

The Court approved amendments to the Rules of the Court that will become effective on May 3rd. If you ever need to amend or correct a document filed with the court, please take note of the new filing requirements in the amendments to Rules 3, 15 and Administrative Order 02-01. Amendments will also be made to Rule 5 regarding service by overnight delivery and to the Form 20 Subpoena to reflect the current language of Rule 45.

The Court also approved six increases to the Schedule of Fees, including a rise in the admission fee from $81 to $88. To reflect the new amount, Rule 74 and the Form 10 Application for Admission for Practice are being amended as well.

Proposed amendments regarding U.S. Customs and Border Protection’s transition to the Centers for Excellence and Expertise have been approved for posting for comment by the Court. These proposed amendments concern Rule 4, Rule 79, Form 1 Summons, Form 9 Stipulated Judgment on Agreed Statement of Facts, and the Specific Instructions for Form 1.

Stay tuned to the News & Announcements portion of the Court’s website for information on the upcoming amendments and proposed amendments.

As the pandemic hits the one year mark the Court continues to hold its proceedings via video conference, including most recently our first trial! To date, the Court has utilized Cisco WebEx and Microsoft Teams for video conferencing courtroom proceedings. These platforms allow participants to share materials from their computers for all to see. When participating in court proceedings via video conference, consider these helpful tips: Choose a quiet room with good lighting, test your equipment, and conduct a test run several days prior to the proceeding to identify and address any issues.

To ensure the proceeding begins as scheduled, establish your connection several minutes prior to the start time. During the proceedings, consider these suggestions: Ensure that everyone can hear and see each other. Please mute your microphone until it’s your time to speak. When it is your time, don’t forget to unmute! You would be surprised how often people forget. Please avoid multitasking or having side conversations during the proceeding. Also, the dignity of the Court is to be respected and maintained at all times.

Last summer, CITBA, as many organizations in our country, recognized that the mass protests and Black Lives Matter Movement fueled by the deaths of George Floyd, Breonna Taylor and others, required it to consider its role in promoting diversity and addressing the impacts of racial injustice. Such an inquiry was also appropriate for the trade bar given the key role international trade played in the development and maintenance of slavery in our country and has played and still plays in the economic development of our country. In August, the CITBA Board decided to form a Committee on Diversity, Equity and Inclusion (DE&I Committee) and asked former USITC Commissioner Irving Williamson to chair it. In October, the Board decided that the duty of this Committee was to foster community and to promote involvement in CITBA among attorneys of underrepresented groups and that the Committee should seek to increase membership and opportunities for attorneys of underrepresented groups in the practice of customs and international trade law. In accordance with the CITBA by-laws, the Committee must be formally approved at the next general membership meeting.

CITBA members have responded enthusiastically to the formation of the Committee as over 20 people signed up for its first meeting. As a way to educate CITBA members on the challenges of being a diverse organization and addressing racial injustice, the Committee hosted on September 15, 2020 a virtual panel entitled “Black Voices in Trade: Promoting Racial Justice through Opportunity and Advancement.” The panel featured Sandra Lee Bell from DLA Piper, Deanna Clark-Esposito from the Clark-Esposito Law Firm, Mikki Cottet from the U.S. Department of Justice, Nnedinma Ifudu Nweke from Akin Gump, and Luke Tillman from Steptoe & Johnson and was moderated by Irving Williamson. The panelists discussed their experiences as trade lawyers and steps that should be taken to make the trade bar truly diverse and to further the cause of racial justice.

Drawing on what it learned from the September 15th panel, the Committee developed in February a statement of CITBA’s commitment to diversity, equity and inclusion. Specifically, the statement says CITBA is committed to promoting comprehensive and meaningful diversity, equity and inclusion in all areas of the customs and international trade law practice and to doing its part to address the effects of systemic racism and racial injustice. The statement then lists some of the areas in which CITBA will be working to make its commitment a reality.  The statement was approved by the Board on March 8th and is now posted on the CITBA website under Diversity Pledge.

Following the September 15th panel, the Committee decided that one major focus of its work should be to attract more minority law students into the trade law field. As a first step, the Committee, in collaboration with the American Society of International Law (ASIL) International Economic Law Interest Group, held a panel presentation to encourage students to consider international trade law careers. The March 16th panel was entitled “Careers & Internships in International Trade, Customs, and Export Controls Law.” The panel was moderated by Jaelyn Edwards Judelson, Partner at Akin Gump, and featured Currita Waddy, Assistant Chief Counsel, U.S. Customs & Border Protection; Shama Patari, Executive Director, Lenovo; Mercedes C. Morno, Associate, King & Spalding; Roop K. Bhatti, Chief of Staff, U.S. International Trade Commission, and Jini Koh, Senior Corporate Counsel, Amazon. The panelists discussed their careers and why students might be interested in an international trade law career. Over 300 people signed up for the virtual panel and over 500 have already watched the video of the panel. To assist students in learning about an international trade career the Committee prepared background documents on private and public sector internships, clerkships and trade law positions, what is an international trade lawyer and examples of trade laws. After the panel, the Committee sent a follow-up message to attendees providing links to the resource documents, links to videos of the Committee’s two panels, and an invitation to contact CITBA if they have further questions. The Committee intends for the outreach to students to be an ongoing effort.

In January, ASIL’s International Economic Law Interest Group, chaired by Kathleen Claussen of the University of Miami and Julian Arato of Brooklyn Law School, approached CITBA about finding a way to help minority law students who want to gain international trade law experience by working at a government agency or non-profit, but cannot afford to because many of these internships are non-paying or low paying. The two organizations announced on March 9th the CITBA/ASIL Summer Fellowship Program. The program will provide fellowships to assist underrepresented students who get positions with government agencies or non-profits. As the number and size of fellowships will depend on the size of the Fellowship Fund, CITBA members who want to make a tax deductible contribution to the Fellowship Fund can do so either by going to www.asil.org/donate, selecting the Annual Fund option, and then in the dedication line, selecting “in honor of” and listing the CITBA/International Economic Law Interest Group Fellowship or by mailing your contribution to: American Society of International Law, PO Box 79516, Baltimore, MD 21279-0516.

The DE&I Committee has had a busy first eight months, but still has much work to do and welcomes any who want to join in its efforts. If you would like more information or to join, please contact irchpat@verizon.net.

U.S. Court of Appeals for the Federal Circuit

20-1202

Home Products International v. United States

02/16/2021

O’Malley, Taranto, Stoll

In a non-precedential opinion, the CAFC dismissed Target Corporation’s appeal of a decision by the CIT in the matter Home Prod. Int’l, Inc. v. United States. Because Target was not a party to the CIT action below and had not preserved any argument challenging the CIT’s denial of its motion to intervene, the CAFC dismissed Target’s nonparty appeal. The CAFC held that Target had not established the exceptional circumstances that would indicate the propriety of permitting a nonparty appeal in this case.

Diamond Sawblades v. United States

01/27/2021

Prost, Clevenger, Taranto

In a precedential opinion, the CAFC affirmed in part and remanded in part a decision of the CIT to uphold Commerce’s final results in the antidumping duty administrative review of diamond sawblades from China. The CAFC remanded for further proceedings to determine the extent to which Commerce used “facts otherwise available” under 19 U.S.C. § 1677e(a) and drew adverse inferences under 19 U.S.C. § 1677e(b) on Bosun’s country-of-origin information.  Although there were gaps in Bosun’s country-of-origin information, the adverse inference was applied too broadly by disregarding all of Bosun’s country-of-origin information and should only be applied to the unreliable origin information. The CAFC left to the CIT the decision whether a further remand to Commerce is needed. 

U.S. Court of International Trade

Thyssenkrupp Materials NA Inc. v. United States

03/10/2021

Kelly, 

1581(i)

The CIT addressed the issue as to whether Commerce’s Interim Final Rule creating the process by which importers could request exclusions from Section 232 tariffs imposed on aluminum violated the Uniformity Clause of the Constitution or was arbitrary, capricious, or otherwise not in accordance with law. Specifically, Thyssenkrupp argued that, by failing to grant exclusions from Section 232 duties to all importers of the same merchandise, the duties do not have the same force and effect in every place where the subject merchandise is found thereby violating the Uniformity Clause of the Constitution. The CIT found that the purpose of the Uniformity Clause is to prevent the federal government from discriminating between states when levying taxes and duties and because any party located anywhere in the United States can apply for an exclusion, the CIT held that Thyssenkrupp failed to state a claim that the exclusion process is unconstitutional under the Uniformity Clause. The CIT also held that Commerce lawfully exercised its broad discretion to promulgate the exclusion process pursuant to the relevant Presidential Proclamations because the Interim Final Rule established procedures that were not only consistent with the Proclamations, but were based on the exact criteria laid out in the Proclamations.  Accordingly, the CIT granted the Government’s motion to dismiss.

21-28

Am. Pacific Plywood, Inc. v. United States

03/05/2021

Stanceu

1581(c)

The CIT denied the motions of three plaintiffs who sought reassignment of each of their respective actions to a three-judge panel. The actions arose following CBP EAPA investigations into claims that certain imports of hardwood plywood occurred due to evasion of AD/CVD orders on hardwood plywood from China. The CIT held that plaintiffs' allegations were not sufficient to justify reassignment to a three-judge panel and that plaintiffs failed to show that adjudication of the action by a single judge will be inadequate or inappropriate with respect to any of the claims in their complaints. Accordingly, the CIT declined to reassign the consolidated action to a three-judge panel.

21-27

Fine Furniture (Shanghai) Ltd. v. United States

03/03/2021

Eaton

1581(c)

The CIT upheld Commerce’s corrected remand redetermination issued pursuant to court order to the antidumping duty order on multilayered wood flooring from China and found that Commerce complied with the CIT’s instructions because Commerce recalculated the rate applicable to separate rate respondents based on the sole remaining individually examined respondent’s weighted-average dumping margin. No party contested the Remand Results.

21-26

Meyer Corp., U.S. v. United States

03/01/2021

Aquilino

1581(a)

This test case considered valuation under 19 U.S.C. § 1401a of 125 different sets of cookware (pots and pans) imported from China and Thailand. The CIT focused on three issues: (1) the “first sale rule”; (2) preferential treatment of entries from Thailand under the GSP; and (3) whether circular metal “blanks” imported into Thailand from China underwent a “double substantial transformation” as required by CBP’s interpretation of the GSP for purposes of both aforementioned valuation issues. In a 120-page opinion, the CIT concluded plaintiff had not established entitlement to first sale valuation and that plaintiff failed to meet its burden of establishing its entitlement to GSP dispensation of duty-free treatment of cookware manufactured by the Thai producer from steel discs obtained from China, because the manufacturing process did not result in a double substantial transformation of them. The CIT expressed doubts about whether the “first sale” test was intended to be applied to transactions involving non-market economy participants or inputs and stated that in that regard, the Federal Circuit could provide clarification.

21-25

Universal Steel Prods., Inc. v. United States

02/26/2021

Katzmann, 

1581(i)

In a per curiam decision, the CIT agreed to enter partial judgment pursuant to USCIT Rule 54(b) of an opinion that rejected several Section 232 claims, but stayed consideration of the allegation that increased tariffs on steel imports from Turkey to 50 percent violated mandatory timing provisions of Section 232, pending the final disposition of Transpacific Steel LLC v. United States, CIT No. 19-0009. The CIT held that because the entry of a Rule 54(b) partial judgment would serve the interest of the parties and the administration of justice by bringing those adjudicated claims to a conclusion before the CIT and providing Plaintiffs an opportunity to immediately appeal all issues other than the final allegation relating to Turkey, the CIT had no just reason to delay issuance of partial judgment.

21-24

United States v. Aegis Sec. Ins. Co.

02/26/2021

Eaton

1582

The CIT upheld a reimbursement claim by Aegis (surety) from Tricot (importer) on a judgment against Aegis satisfied by tendering roughly $768,000 to the United States. The CIT held that notwithstanding the absence of Tricot’s signature on the bond, Tricot paid the annual premiums throughout the life of the bond and there was no dispute that the bond formed the basis of the USG’s claims in the main action. The CIT also held that the language of the bond and the indemnity agreement supported granting Aegis’ recovery of attorney’s fees, costs, and expenses incurred to defend the main action and also to pursue this third-party action. The determination of “reasonable” fees required the submission of further proof.

21-23

Bosun Tools Co. v. United States

02/24/2021

Kelly

1581(c)

The CIT sustained Commerce’s second remand redetermination in the seventh administrative review for the ADD order covering diamond sawblades and parts thereof from China. The CIT found Commerce’s application of the “expected method” of weight-averaging the zero and AFA margins supported by substantial evidence and in compliance with the court’s order.

21-22

Nucor Corp. v. United States

02/22/2021

Choe-Groves

1581(c)

The CIT sustained the remand results of Commerce’s first administrative review of the CVD order on certain corrosion-resistant steel products from Korea. The CIT held that Commerce’s remand redetermination that loans from private creditors could not be used as a benchmark for measuring benefits from government loans was supported by substantial evidence. The CIT sustained Commerce’s benchmark interest rate determination based on uncreditworthiness pursuant to the relevant regulations. The CIT also concluded that Commerce’s remand redetermination that a loan restructuring was a specific subsidy that operated differently from bankruptcy proceedings was supported by substantial evidence and sustained Commerce’s specificity determination.

21-21

Chemours Co. v. United States

02/22/2021

Reif

1581(c)

The CIT sustained the remand results of the ITC in its AD/CVD investigations of polytetrafluorethylene resin (PTFE) from China and India. The CIT held that the ITC complied with the Court’s instructions to examine the record evidence relating to post-petition data, found no basis to invalidate the analysis, and held that the ITC’s remand determination was supported by substantial evidence.

21-20

Icdas Celik Enerji Tersane ve Ulasim Sanayi, A.S. v. United States

02/19/2021

Katzmann

1581(c)

The CIT sustained Commerce’s final affirmative CVD determination regarding steel concrete reinforcing bar (rebar) from Turkey. Specifically, the CIT held that (1) Commerce permissibly applied partial AFA in response to Icdas’s failure to cooperate with Commerce’s investigation to the best of its ability; (2) Commerce reasonably attributed to Icdas the GIIS program benefits received by Icdas Elektrik as a cross-owned input supplier; (3) Commerce reasonably interpreted Icdas’s customs duty and VAT exemptions as both a grant and a contingent liability; (4) Commerce’s application of an IMF TL loan interest rate benchmark with respect to the GIIS’s interest-free contingent liability was appropriate under 19 U.S.C. § 1677(5)(E); and (5) Commerce permissibly resorted to a tier-three benchmark for the market price of natural gas in its assessment of adequate remuneration.

Shelter Forest Int'l Acquisition, Inc. v. United States

02/18/2021

Restani

1581(c)

The CIT remanded Commerce’s determination that inquiry merchandise constituted later-developed merchandise circumventing the AD/CVD orders on hardwood plywood from China under 19 U.S.C. § 1677j(d). Specifically, the CIT held, inter alia, that Commerce’s affirmative circumvention determination was not supported by substantial evidence because Commerce narrowly defined inquiry merchandise such that it made it impossible for Plaintiffs to show that the inquiry merchandise had been commercially available prior to the relevant time period and Commerce did not provide Plaintiffs with the opportunity to submit relevant information in several instances. The CIT also held that the proper effective date of the circumvention order for purposes of suspension of liquidation must be the publication of the Initiation Notice in the Federal Register and not the signature date of the Initiation Notice, which was several days earlier. Additionally, the CIT held that Commerce improperly rejected a rebuttal brief for raising a new affirmative argument not raised in its case brief because the new argument referred to an intervening court decision that was decided after the case briefs had been submitted.  

21-18

Borusan Mannesmann Boru Sanayi ve Ticaret A.S. v. United States

02/17/2021

Restani

1581(c)

21-17

United States v. E.G. Plastics, Inc.

02/16/2021

Katzmann

1582

The CIT granted the Government’s motion for the entry of default judgment for the recovery of unpaid duties incurred by Defendant, an importer of plastic retail bags from Thailand. Because Defendant failed to timely appear, plead, or otherwise defend, default was entered.

21-16

United States v. Green Planet, Inc.

02/16/2021

Katzmann

1582

The CIT granted the Government’s motion for the entry of default judgment to recover unpaid taxes and a civil penalty against Defendant, an importer of cigarette rolling papers from China. The CIT held that the Government’s complaint and supporting evidence adequately established the Defendant’s liability for negligently entering merchandise into the commerce of the United States by means of materially false information, in violation of 19 U.S.C. § 1592(a)(1)(A).

21-15/21-14

M S International, Inc. v. United States

02/12/2021

Gordon

1581(c)

The CIT entered a partial judgment pursuant to USCIT Rule 54(b), sustaining Commerce’s decision to modify the scope of the underlying investigation. The CIT held that there was no threat of piecemeal judicial review as the resolution of the remaining issues presented by Plaintiffs did not implicate the final disposition of the scope modification challenge raised by one Plaintiff.

21-13

Shenzhen Xinboda Indus. Co. v. United States

02/08/2021

Kelly

1581(c)

21-12

Universal Steel Prods., Inc. v. United States

02/04/2021

Katzmann, 

1581(i)

21-11

Calcutta Seafoods Pvt. Ltd. v. United States

02/03/2021

Katzmann

1581(c)

Shandong Yongtai Grp. Co. v. United States

01/29/2021

Choe-Groves

1581(c)

21-09

Venus Wire Industries, PVT. Ltd., v. United States

01/28/2021

Barnett

1581(c)

The CIT sustained Commerce’s second remand redetermination concerning the changed circumstances review of the AD order on stainless steel bar from India, pertaining to the calculation of a dumping margin for plaintiff Venus Wire. In particular, the CIT sustained Commerce’s inclusion of the identity of the manufacturer of certain inputs as part of the model-match criteria for purposes of conducting the cost of production test, and found moot petitioners’ arguments for use of partial or total AFA in Commerce’s calculation.

21-08

PrimeSource Bldg. Prods., Inc. v. United States

01/27/2021

Stanceu,

1581(i)

The CIT dismissed four of five counts in PrimeSource’s amended complaint and denied PrimeSource’s motion for summary judgment as to the sole remaining claim: that Presidential Proclamation 9980 extending 25% Section 232 duties on steel and aluminum to steel and aluminum derivative articles is invalid because it was issued after the authority delegated to the President by the governing statute had expired. With regard to PrimeSource’s first count, challenging the “assessments” of Commerce addressing steel and aluminum derivatives, the CIT held that Commerce “merely provided facts and recommendations for potential action by the President,” which “had no direct or independent effect on PrimeSource.” The CIT rejected PrimeSource’s contention that Commerce’s recommendation should be deemed “final,” and therefore judicially reviewable, because the legal consequence (the imposition of tariffs) resulted from an exercise of the President’s discretion. With regard to PrimeSource’s third count, alleging a due process violation stemming from the President’s failure to provide parties with notice and the opportunity to comment before issuing Proclamation 9980, the CIT held that neither the Fifth Amendment nor Section 232 required the President to provide notice or the opportunity to comment before imposing duties to comply with due process. Moreover, the CIT concluded that PrimeSource failed to establish that it had a protected property interest in maintaining the tariff treatment applicable to its imported products that existed prior to Proclamation 9980. The CIT found PrimeSource’s fourth count, contending that Section 232 is an impermissibly broad delegation of legislative authority to the Executive Branch and therefore unconstitutional, to be foreclosed by Federal Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548 (1976). The CIT found PrimeSource’s fifth and final count to be similar to Count 1 and dismissed on the same basis.

The CIT denied dismissal of PrimeSource’s second count, alleging that Proclamation 9980 was issued more than 105 days after receipt of Commerce’s report, and the Proclamation was therefore invalid. The CIT rejected the government’s arguments for dismissal on the basis that having issued Proclamation 9705, the President remained free to adjust imports of derivative articles of those addressed in Proclamation 9705. However, the CIT also found remaining questions of fact existed such that summary judgment in favor of plaintiff PrimeSource on the count was not appropriate at this time. Judge Baker concurred with regard to the dismissal of Counts 1, 3, 4, and 5, but dissented with regard to the denial of dismissal of Count 2, in a separate opinion. 

21-07

Midwest Fastener Corp. v. United States

01/21/2021

Kelly

1581(c)

The CIT remanded Commerce’s second remand redetermination that strike pin anchors are within the scope of the AD order covering certain steel nails from China. Commerce is ordered on remand to reconsider its second remand redetermination in light of the CAFC’s opinion in OMG, Inc. v. United States, 972 F.3d 1358 (Fed. Cir. 2020), which issued after the second remand redetermination in the China proceeding. In OMG, interpreting nearly identical scope language in the AD/CVD orders covering certain steel nails from Vietnam, the CAFC found that anchors were not nails regardless of whether they are comprised of two pieces, and that Commerce erred in focusing its scope analysis on the pin-component of the anchor. The CIT held reconsideration of its prior ruling was appropriate because the CAFC decision constituted a controlling or significant change in the law.

21-06

PrimeSource Bldg. Prods., Inc., et al v. United States

01/20/2021

Stanceu,

1581(i)

The CIT denied the American Steel Nail Coalition’s and its member companies’ motions to intervene in the twelve above-captioned cases. Plaintiffs challenged the legality of Presidential Proclamation 9980 extending 25% Section 232 duties on steel and aluminum to steel and aluminum derivative articles, including steel nails. The CIT first concluded that the proposed intervenors did not meet the requirements for intervention as of right under USCIT R. 24(a), holding that the proposed intervenors had not demonstrated that the defendant United States would not adequately represent any interest the proposed intervenors have in the tariffs imposed. In particular, the CIT held that “[b]ecause the government has but one interest in this litigation—maintaining Proclamation 9980—it reasonably can be expected to act vigorously to defend that interest, which Proclamation 9980 has stated to be grounded in removing a threatened impairment of the national security of the United States.” The CIT was not persuaded that the proposed intervenors’ private and commercial motivation for defending the tariffs resulted in a different overall interest, or that the government’s consent to preliminary injunctions in certain of the above-captioned cases indicated a misalignment of interests between the proposed intervenors and the government in defending Proclamation 9980. The CIT further denied permissive intervention under USCIT R. 24(b), holding that intervention would unduly delay or prejudice the adjudication of the rights of the parties, because of the additional filings the proposed intervenors would make in each of the twelve cases, and the need for parties to respond to those filings. Judge Baker concurred in a separate opinion.

21-05

Prime Time Commerce LLC v. United States

01/19/2021

Kelly

1581(c)

The CIT sustained Commerce’s remand redetermination in the 2015-2016 administrative review of certain cased pencils from China. During the underlying administrative review, respondent Homey declined to participate; unaffiliated importer Prime Time attempted to provide Section C and D questionnaire responses on Homey’s behalf. Commerce rejected those submissions. In prior litigation, the CIT remanded for Commerce to consider those submissions and whether the information therein would permit it to calculate an importer-specific rate. On remand, Commerce considered the submission but concluded it could not calculate an importer-specific rate. Prime Time did not comment on the draft remand redetermination, but did attempt to challenge Commerce’s rationale before the CIT. The CIT held that Prime Time failed to exhaust its administrative remedies, rejecting Prime Time’s arguments that asking Commerce to place gap-filling information on the record would have been futile.

21-04

Mid Continent Steel & Wire, Inc. v. United States

01/08/2021

Kelly

1581(c)

The CIT sustained Commerce’s second remand redetermination’s use of a simple average to calculate a pooled standard deviation as part of its differential pricing analysis in its antidumping duty investigation of certain steel nails from Taiwan. The CAFC previously found deficient Commerce’s explanation of its use of a simple average when determining the pooled standard deviation in its Cohen’s d test. On remand, Commerce explained that a simple average of the variances for each group accurately represents pricing behaviors within each group because it is the group pricing that matters, and not the individual pricing amongst all sales, and therefore use of a simple average did not mask potential targeted dumping within one group. In contrast, Commerce explained, use of a weighted average would skew results toward the largest group. The CIT found Commerce’s explanation sufficient to address the CAFC’s concerns. The CIT also agreed with Commerce’s statement, rejecting respondent PT’s arguments, that the fact that Commerce’s choice of methodology may produce different results does not on its own demonstrate that Commerce’s chosen methodology is unreasonable, and did not find PT’s arguments to otherwise undermine Commerce’s explanation for its choice of methodology.

GODACO Seafood Joint Stock Co. v. United States

01/06/2021

Choe-Groves

1581(c)

The CIT sustained in part and remanded in part Commerce’s remand redetermination in the thirteenth administrative review of the AD order on certain frozen fish fillets from Vietnam. The CIT sustained application of AFA against respondent GODACO, after it failed to provide farming factors of production on a CONNUM-specific basis (instead allocating farming factors of production on a “total harvested fish” basis). The CIT also sustained the AFA rate applied to GODACO as a rate applied in a former segment of the same proceeding, which therefore did not require corroboration. However, the CIT remanded application of GODACO’s AFA rate to the separate rate plaintiffs. The CIT found that Commerce did not rely on 19 USC § 1673d(c)(5)(B) to determine the separate rate in this segment, because GODACO was the only individually-examined respondent in the administrative review, and so Commerce did not weight-average zero and de minimis margins and AFA margins, and instead simply assigned GODACO’s AFA rate. Having found that Commerce instead applied the statutory exception, “any reasonable method,” the CIT first held that Commerce failed to demonstrate that the expected method was not feasible or resulted in an average that would not be reasonably reflective of the potential dumping margins before shifting to “any reasonable method.” Moreover, the CIT held that Commerce’s application of a years-old AFA rate, instead of the separate rate calculated in the immediately-preceding administrative review, was unreasonable under the statutory exception. Commerce is directed to reevaluate the separate rate on remand.

21-02

Changzhou Trina Solar Energy Co. v. United States

01/04/2021

Kelly

1581(c)

The CIT sustained in part and remanded in part Commerce’s remand redetermination in the fourth administrative review of the AD order on solar cells from China. The CIT remanded Commerce’s use of Maersk data exclusively for international freight expenses, finding unsupported by substantial evidence Commerce’s determination that the Maersk data (pertaining to electronic goods) was more specific than the alternate option (Xeneta data not specific to any product). In particular, the CIT found that Commerce failed to “cite any evidence that shipping electronics or shipping solar panels is more or less expensive than shipping anything else,” and applied inconsistent reasoning regarding the two data sets’ inclusivity of refrigerated and hazardous shipment costs. In addition to these issues, on remand, Commerce is particularly directed to address comparative representativeness of the two data sets in terms of route and breadth of data. The CIT sustained Commerce’s recalculation of U.S. price, which Commerce increased by the amount of the CVD imposed on the Export Buyer’s Credit Program in the parallel CVD proceeding in accordance with the court’s prior instruction.

21-01

Husteel Co. v. United States

01/04/2021

Kelly

1581(c)

The CIT sustained the second remand redetermination in Commerce’s 2015-2016 administrative review of the AD order on welded line pipe from Korea. In its second remand redetermination, Commerce found that there were significant differences between respondent SeAH’s selling functions for U.S. and Canadian customers and the level of trade for the Canadian sales was at a more advanced stage of distribution than the constructed export price U.S. sales. Commerce therefore granted a constructed export price offset. No party challenged the redetermination before the agency or the CIT, and the CIT sustained.

Please look for further announcements and copies of past newsletters at:

Not a CITBA member? Apply for membership now! CITBA offers different membership

levels - active, associate and retired/student.

We can also make it easy on you by issuing a single invoice for all the members of your practice group. Email Kristin Mowry at khm@mowrygrimson.com for details.

For additional information, check out the CITBA website: http://www.citba.org