Winter Newsletter - Federal Circuit and CIT Case Summaries
|U.S. Court of Appeals for the Federal Circuit
|Wanxiang America Corporation. v. United States
|Moore, Reyna, Taranto
|The Federal Circuit affirmed the CIT’s decision finding that it lacked jurisdiction over Appellant’s action under 28 U.S.C. § 1581(i). The CAFC held that Appellant could have sought relief under another subsection of 28 U.S.C. § 1581 and had not shown that such relief would have been manifestly inadequate.
|Hyundai Electric & Energy Systems Co., Ltd. v. United States and ABB Enterprise Software Inc.
|Newman, Reyna, Hughes
|The Federal Circuit affirmed the CIT decision sustaining Commerce’s final results in the fifth administrative review of the AD order on large power transformers from Korea. The appeals court found that Commerce’s decision to rely on AFA and to cancel verification were supported by substantial evidence and otherwise not contrary to law, because Commerce determined and explained that the information Hyundai provided was unverifiable.
|Kent International Inc., v. United States
|Lourie, Linn, Dyk
|The Federal Circuit vacated-in-part the CIT’s decision to deny Petitioner’s claim that CBP had unlawfully contradicted its past treatment of Petitioner’s imports of child bike seats because the decision on treatment considered bypass entries.
The Petitioner argued that CBP violated 19 U.S.C. 1625(c)(2) by modifying its treatment previously accorded to certain imports without the necessary notice and comment. CBP had previously agreed to classify Petitioner’s shipments of bicycle seats imported through the Port of New York from heading 8714, which is subject to a 10% import duty to heading 9401, which is duty-free. CBP subsequently denied Petitioner’s petition to reclassify shipments of bicycle seats that arrived through the Port of Long Beach from heading 8714 to 9401. The Government argued that it did not treat all imports of the subject goods the same and cited to bypass entries of bike seats that were liquidated under heading 9401.
The Federal Circuit rejected the CIT’s decision to approve CBP’s arguments because they relied on bypass entries, which cannot be considered in treatment determinations according to CBP regulations. The Federal Circuit also remanded-in-part to the CIT to consider and determine the Government’s argument that the Petitioner had challenged the agency’s treatment of its imports during the wrong time-period. Finally, the Federal Circuit affirmed the CIT’s decision that there was no “established and uniform practice” in place regarding duty-free treatment of child bike seats for a specific two-year period.
|U.S. Court of International Trade
|Prosperity Tieh Enterprise Co., Ltd v. United States
|The CIT remanded Commerce’s redetermination in the AD investigation of CORE from Taiwan. The court vacated Commerce’s determination on collapsing as Commerce failed to consider the “totality of the circumstances” between all entities in its determination of whether there was significant potential for manipulation of price or production. The court held that Commerce must either 1) evaluate the relationship between each individual entity being considered for collapsing or 2) evaluate the relationship between an already collapsed entity and the additional entity with which the collapsed entity is being considered for further collapsing. Accordingly, the court ordered Commerce to recalculate the margins based on its vacatur.
|Canadian Solar Inc., et al v. United States
|The CIT partially sustained and partially remanded Commerce’s final results in the fifth AD administrative review of crystalline silicon photovoltaic cells from China. Commerce requested a remand on three issues, which were unopposed: 1) reconsidering the benchmark for aluminum extrusions, 2) choosing the benchmark for solar-grade polysilicon, and 3) its application of AFA in its specificity finding for the provision of electricity for LTAR. Further, because the court found that evidence on the record supported Commerce’s determination that “users of aluminum extrusions do not make up something akin to the whole of the Chinese economy,” the court sustained Commerce’s specificity determination, holding that it is “not unsupported by substantial evidence on the record, or otherwise not in accordance with law.” The court also found that Commerce’s chosen land benchmark is lawful and supported by substantial evidence because Commerce had previously conducted a proper tiered benchmark analysis. Finally, the court concluded that Commerce’s uncreditworthy determination pertaining to Canadian Solar in 2016 was reasonable because record evidence did not indicate that Canadian Solar or its cross-owned affiliates were party to a commercial loan.
|21-115 & 21-116
|Worldwide Door Components, Inc.. v. United States
Columbia Aluminum Products, LLC v. United States
|The CIT remanded Commerce’s remand determination in the AD/CVD scope inquiry on aluminum extrusions from China. The court analyzed Commerce’s methodology for scope determinations and found that Commerce’s remand decision impermissibly relied on a factual finding or inference pertaining to WorldWide Door Components, Inc.’s and Columbia Aluminum Products, LLC’s door thresholds. In both cases, the court ordered Commerce to reconsider the applicability of the finished merchandise exclusion to WorldWide’s and Columbia’s door thresholds.
|Unicatch Industrial Co., Ltd., and TC International. v. United States
|The CIT sustained Commerce’s final results of the third AD administrative review of steel nails from Taiwan. The court found that Commerce’s decision to rely on individual affiliates to determine whether purchase prices were above market price was in accordance with the law. The court also sustained Commerce’s decision to use the weighted-average price paid to Unicatch’s unaffiliated suppliers as the market price was supported by substantial evidence and in accordance with the law. Lastly, the court sustained Commerce’s cost of manufacturing adjustment.
|21-118 & 21-119
|Saha Thai Steel Pipe Public Company Limited v. United States
|The CIT sustained Commerce’s remand results in the AD administrative reviews of circular welded carbon steel pipes and tubes from Thailand (2016-2017 and 2017-2018 PORs, respectively). The court sustained Commerce’s removal of the particular market situation adjustment and found that Commerce’s recalculation of the weighted-average dumping margin without the adjustment is in accordance with law.
|NTSF Seafoods Joint Stock Company and Vinh Quang Fisheries Corporation v. United States
|The CIT sustained Commerce’s remand results in the AD administrative review of certain frozen fish fillets from Vietnam. The court sustained Commerce’s decision on remand to grant an offset for NTSF’s sales of fish oil and fish meal byproducts for the last three months of the period of review. Commerce determined that NTSF reconciled its byproduct reporting properly and substantiated an offset because NTSF’s reporting accounted for the byproducts generated in its responses during the period of review. The court also found that Commerce’s use of Indonesian Global Trade Atlas data to calculate a surrogate value for NTSF’s byproduct offsets was product-specific and constituted the best available information, and therefore is supported by substantial evidence. .
|Calcutta Seafoods PVT. LTD., Bay Seafood PVT. LTD., and Elque & Co., v. United States
|The CIT sustained Commerce’s remand results in the AD review of certain frozen warmwater shrimp from India. The court concluded that the remand results complied with the court’s order in Calcutta I because Commerce recalculated the Elque Group’s AD duty rate without applying AFA and the recalculated rate reflects the evidence in the record and is sufficiently explained by Commerce.
|Government of Argentina v. United States
|The CIT sustained Commerce’s final results in the CVD changed circumstances review (“CCR”) of biodiesel from Argentina. The court found that Commerce conducted the CCR in accordance with law and that the agency’s final results were supported by substantial evidence.
|Histeel Co., Ltd., and Kukje Steel Co., Ltd., v. United States
|The CIT remanded Commerce’s final results in the AD review of heavy walled rectangular welded carbon steel pipes and tubes from Korea. The court concluded that Commerce impermissibly applied a particular market situation adjustment prior to conducting a sales-below-cost test under 19 U.S.C. § 1677b(b), contrary to the plain language of the statute. Furthermore, the court found that Commerce failed to provide substantial evidence that a particular market situation existed in the Korean market for the subject merchandise during the period of review.
|Linyi Chengen Import and Export Co., Ltd., v. United States
|The CIT remanded Commerce’s third remand redetermination in the AD investigation of hardwood and decorative plywood and certain veneered panels from China. The court found that the all-others separate rate was unsupported by substantial evidence. While the court sustained Commerce’s departure from the expected method, the court concluded that Commerce’s 57.36% separate rate assigned to the voluntary and cooperating separate rate plaintiffs was not reasonable and was unsupported by substantial evidence.
|Qingdao Sentury Tire Co., Ltd., Sentury Tire USA Inc., Sentury (Hong Kong) Trading Co., Limited. v. United States
|The CIT partially sustained and partially remanded Commerce’s second remand results in the AD administrative review of certain passenger vehicle and light truck tires from China. The court found that Commerce’s separate rate analysis failed to first determine whether Pirelli was wholly foreign-owned or located in a market economy prior to its acquisition. The court remanded to Commerce to determine whether Pirelli was wholly foreign-owned or located in a market economy prior to the Chem China acquisition; whether a separate rate analysis should be conducted for the period from January 2015 to October 2015; whether the presumption of Chinese governmental control applies to Pirelli prior to Chem China’s acquisition; and if so, whether there was de jure or de facto Chinese governmental control over Pirelli before Chem China’s acquisition. The court sustained Commerce’s removal of the downward adjustment to Sentury’s export price and revised dumping margins for Sentury and the revised all-others separate rate.
|M S International, Inc. v. United States
|The CIT sustained Commerce’s final determination in the AD investigation of certain quartz surface products from China. The court sustained Commerce’s surrogate country and surrogate value selections for quartz powder, transportation, and financial statements. The court concluded that Commerce reasonably found Mexico to be a significant producer of identical merchandise based on the three-prong comparability test that considers the physical characteristics, end uses, and production processes.
|Godaco Seafood JSC v. United State
|The CIT sustained Commerce’s second remand results in the AD administrative review of certain frozen fish fillets from Vietnam. The court found that the separate rate that Commerce determined for the non-examined companies was supported by substantial evidence. The court found that Commerce’s use of “any reasonable method” under 19 U.S.C.§ 1673d(c)(5)(B) to calculate a revised all-others separate rate was supported by substantial evidence and reasonable. Commerce applied a simple average of the separate rates assigned in the four prior administrative reviews to account for any variations in the all-others separate rate between the periods of review.
|NEXTEEL Co., Ltd. v. United States
|The CIT remanded Commerce’s final results in the AD administrative review of circular welded non-alloy steel pipe from Korea. The court concluded that Commerce’s cost-based particular market situation determination and subsequent adjustment are not in accordance with the law because 19 U.S.C. § 1677b(e) does not authorize a cost-based particular market situation adjustment when Commerce bases normal value on home market sales.
|Root Sciences, LLC v. United States
|The Court dismissed for lack of jurisdiction an action brought by importer Root Sciences challenging CBP’s seizure of a cannabis processor as prohibited merchandise (drug paraphernalia), holding that a seizure effectuated within 30 days of entry prevented deemed exclusion from occurring, even if notice of the seizure was not communicated to the importer until well after that window.
The Court agreed with the Government that the merchandise at issue was seized within 30 days of presentation for examination, timely seizure is not a protestable decision under 19 U.S.C. § 1514(a), and that jurisdiction over seized merchandise lies with the district court pursuant to 28 U.S.C. § 1356. Because it had not received notice of seizure from CBP, plaintiff concluded its merchandise was deemed excluded and protested that exclusion. The Court agreed with plaintiff’s arguments that seizure does not constitute an “admissibility determination” for the purpose of 19 USC § 1499(c), but nonetheless concluded that seizure prevented deemed exclusion from occurring by operation of 19 USC § 1499(c)(5)(A). The Court further concluded that CBP’s failure to notify plaintiff of the seizure until after the 30-day window did not render the seizure untimely for the purpose of determining whether a protestable deemed exclusion occurred. Because no protestable deemed exclusion occurred, the Court held it lacked jurisdiction which was instead properly vested in district court.
|Diamond Sawblades Manufacturers’ Coalition v. United States
|The CIT sustained Commerce’s Remand Redetermination pertaining to the scope of the AD order on diamond sawblades and parts thereof from China. The court sustained Commerce’s finding that Lyke Industrial Tool’s cupwheels are not within the scope of the AD order and concluded that the agency’s finding was supported by substantial evidence and in accordance with law.
|Pokarna Engineered Stone Ltd. v. United States
|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 exclude quartz fabricators from its industry support determination. The court found that consolidated plaintiff MSI did not demonstrate that Commerce violated Chevron by interpreting the term “producers” to not include fabricators.
|Cooper (Kunshan) Tire Co., Ltd. v. United States
|The CIT remanded Commerce’s final results in the 2017 administrative review of the CVD order on certain passenger vehicle and light truck tires from China. The court remanded Commerce’s application of adverse facts available for Cooper Tire’s use of the Export Buyer’s Credit Program so that the agency may explain its verification methodology.
|Hung Vuong Corporation et al v. United States
|The CIT sustained Commerce’s remand results in the administrative review of the AD order on certain frozen fish fillets from Vietnam. The court sustained Commerce’s continued application of AFA as supported by substantial evidence because of the company’s reporting deficiencies and failure to cooperate.
|Shamrock Building Materials, Inc. v. United States
|In a dispute regarding classification of plaintiff’s merchandise, the Court granted, in part, the Government’s motion to amendment to the discovery schedule initially agreed-upon by the parties. The Government moved to extend fact discovery until a date concurrent with the end of expert discovery to take the deposition of an additional fact witness disclosed by the plaintiff; Plaintiff opposed any extension, contending lack of diligence because the Government waited until the final three weeks of fact discovery to attempt to schedule the witness’s deposition. The Court ordered the parties to confer and agree upon a new schedule that extended the fact discovery period, but also extended the expert discovery period to a date beyond the close of fact discovery.
|Oman Fasteners, LLC, et al. v. United States
|Choe-Groves, Baker, Stanceau
|The Court granted the Government’s motion for a partial stay pending appeal of the Judgment resulting from Slip. Op. 21-72 (June 10, 2021). In the underlying opinion, the Court found additional Section 232 duties on steel and aluminum derivatives improperly imposed by Proclamation 9880, and subsequently ordered the Government to liquidate the entries subject to the litigation without regard to those additional duties. In staying that order and Judgment, the Court held that the Federal Circuit’s opinion in Transpacific II established sufficient likelihood of success on appeal, despite that litigation arising under somewhat different facts, and that failure to stay would result in irreparable harm to the Government’s ability to collect duties owed should it succeed on the merits. The Court accordingly ordered suspension of the entries affected by the underlying Judgment pending appeal. The Court further ordered the parties to confer and reach agreement regarding increasing plaintiffs’ continuous bonds covering entries made after the date of Judgment, for which no additional duties were collected.
|United States v. Greenlight Organic, Inc. and Parambir Sing Aulakh
|The Court granted in part and denied in part defendant’s motion to compel the Government to answer requests for admission, and declined to order payment of attorney’s fees. The Government initiated the action to recover unpaid duties and penalties arising from defendants’ alleged fraud in their importation of apparel. At issue was the Government’s responses to approximately 108 of the defendants’ requests for admission pertaining to certain entries and vendors and the date defendants’ alleged fraud was discovered. The Court concluded the Government’s objections were justified and/or its substantive responses sufficient for approximately 80 requests, but ordered the Government respond to the remainder of defendant’s requests for admission as required by Rule 36.
|SeAH Steel Corporation v. United States
|The CIT sustained in part and remanded in part Commerce’s final results in the 2017-2018 administrative review of the AD order on OCTG from Korea. The court sustained Commerce’s constructed export price profit rate and Commerce’s decision to exclude freight revenue profit as in accordance with the law. The court remanded for Commerce to re-evaluate its particular market situation determination and further explain whether the assumptions of Cohen’s d test were observed in its differential pricing analysis.
|Husteel Co., Ltd. v. United States
|The CIT sustained Commerce’s second remand results in the 2016-2017 administrative review of the AD order on circular welded non-alloy steel pipe from Korea. The court found that Commerce’s second remand results complied with the remand order by recalculating the dumping margins after removing a particular market situation adjustment.
|Marmen Inc, Marmen Energie Inc., and Marmen Energy Co.,. v. United States
|The CIT sustained in part and remanded in part Commerce’s Final Determination in the AD investigation of utility scale wind towers from Canada. The court sustained Commerce’s decision to weight average Marmen’s plate costs; Commerce’s use of invoice dates as the date of sale; Commerce’s use of Marmen’s reported sales of tower sections; and Commerce’s decision not to apply facts otherwise available or an adverse inference. The court remanded Commerce’s determination rejecting Marmen’s additional cost reconciliation information and Commerce’s use of the “A-to-T” methodology to calculate Marmen’s dumping margin for further consideration consistent with the CIT’s opinion.
|Carbon Activated Tianjin Co., Ltd. v. United States
|The CIT sustained Commerce’s remand results in the eleventh administrative review of the AD order on certain activated carbon from China. The CIT upheld as supported by substantial evidence Commerce’s decision to select Malaysia as the primary surrogate country, even though Commerce used a Romanian company’s financial statements to calculate surrogate financial ratios. Malaysia as the primary surrogate country provided more specific data at the HTS 10-digit level for the coconut-shell charcoal input, explained Commerce. Additionally, the CIT found that the Plaintiffs’ claims of a deficiency in the Romanian data were not supported by the administrative record and thus Commerce’s finding that the Malaysian data was more contemporaneous with the period of review was supported by substantial evidence.
|Diamond Sawblades Manufacturers’ Coalition v. United States
|The CIT sustained Commerce’s second Final Remand Redetermination in the sixth administrative review of the AD order on diamond sawblades and parts thereof from China. The court sustained Commerce’s decision to apply AFA only to exporter Bosun’s sales in which “first in, first out” (“FIFO”) methodology was employed. Commerce was justified in its use of AFA because the FIFO methodology does not properly document country of origin, which exporters are expected to do under the antidumping law. As a result of Commerce’s decision, Bosun’s dumping margin fell significantly from 82% to 15.91%. The court also found that Commerce complied with the remand order by addressing Plaintiff’s argument that the Thai AUV data Commerce used to value copper powder and copper iron clab was aberrational. Commerce explained that Plaintiff made mathematical errors in calculating the Thai AUV data and that, when correctly calculated, the data is not aberrational.
|Royal Brush Manufacturing, Inc. v. United States
|The CIT sustained U.S. Customs and Border Protection’s evasion finding under the Enforce and Protect Act. The court found that CBP had not deprived Royal Brush of due process by relying on confidential information to reach its decision. On remand, CBP explained that certain confidential information had to remain not susceptible to public summary. The CIT also sustained CBP’s reexamination of its verification methodology after CBP again concluded that the verification report did not contain new factual information.
|Solar Energy Industries Association, Nextera Energy Inc., Invenergy Renewables LLC, and EDF Renewables, Inc v. United States et al
|The CIT denied CBP’s motion to dismiss and granted Plaintiff’s motion for summary judgement. This is one of a number of appeals opposing the withdrawal of exclusions on solar panels from safeguard duties. The court specifically held that Presidential Proclamation 10101 constituted a clear misconstruction of section 204 of the Trade Act and was outside the President’s delegated authority. This proclamation attempted to rollback exclusions concerning solar panels using section 204 of the Trade Act. The court granted plaintiff’s motion for summary judgement and set aside Proclamation 10101 on the basis that trade-restricting modifications are not permitted under the authority granted to the President under the Trade Act. Going forward the government is enjoined from enforcing the Proclamation and plaintiff will be refunded all duties it paid under the Proclamation with interest.
|Invenergy Renewables v. United States
|The CIT granted summary judgement for the plaintiff and vacated the USTR’s withdrawal of a previously granted exclusion concerning solar panel imports. This case raised similar concerns related to the power granted to the President under sections 201 – 204 of the Trade Act. See Slip Op. 21-154) and the withdrawal of an exclusion request that had been previously granted. In this case, the government issued a second, mostly identical, withdrawal of an exclusion request after the first one had been enjoined by the court. The court held that the USTR had no statutory authority to withdraw the previously granted exclusion and, even if it had, the withdrawal was an arbitrary and capricious agency decision. President Trump subsequently attempted to withdraw the exclusions with Proclamation 10101, which the court found unlawful. Ultimately, the court ordered that the second withdrawal of the exclusion be vacated for lack of statutory authority and enjoined the government from enforcing it.
|Trans Texas Tire, LLC v. United States
|Trans Texas Tire (“TTT” or “Plaintiff”) challenged Commerce’s antidumping duty order involving certain steel wheels imported from China. TTT and Zhejiang Jingu Company (“Jingu”) challenged Commerce’s authority to impose duties retroactively on such imports without sufficient notice. Plaintiff argued that Commerce’s Preliminary Determination and the Preliminary Scope Decision Memorandum specifically excluded “certain steel wheels” coated with chrome. However, in the Final Determination and the Final Scope Decision Memorandum, Commerce clarified that chrome wheels coated through certain processes such as PVD would not be excluded from the AD order. The Court found that Commerce did not provide adequate notice to modify the scope and retroactively collect duties. The Court then remanded the case to Commerce so that instructions could be provided to CBP consistent with the Court’s decision. Commerce in its remand redetermination revised its instructions to CBP, excluding from the order any imports of PVD chrome wheels between preliminary and final determination in order to provide adequate notice. The Court found the re-formulated instructions proper and sustained Commerce’s remand results.
|Trans Texas Tire, LLC v. United States
|In the parallel case to 21-156, the issue facing the Court in this case was whether Commerce’s revised instructions to CBP provided adequate notice of the inclusion of PVD chrome wheels in Commerce’s countervailing duty order. The CIT directed Commerce to reformulate its instructions to CBP after the plaintiff’s challenged Commerce’s retroactive assessment of duties on PVD chrome wheels dating back to Commerce’s preliminary determination. Initially, it was unclear if PVD chrome wheels would be within the scope of the order, until Commerce clarified in its final determination that PVD chrome wheels would specifically not be excluded. The Court agreed that adequate notice had not been provided in this case and remanded for re-instruction. On remand, Commerce revised its instructions to CBP, effectively changing the date the products would be subject to the order so that duties would not be assessed retroactively between the date of the Preliminary Determination and June 24, 2019. The Court then concluded that the reformulated instructions properly addressed the issue at hand and sustained the remand results.
|Dalian Meisen Woodworking Co., Ltd., v. United States
|The CIT remanded Commerce’s determination to apply AFA to Chinese producers of cabinets. The court remanded with instruction to Commerce to reexamine its decision and recalculate its rate for the Chinese cabinet producers. The court determined that the producers had complied with Commerce’s investigation and had responded correctly and to the best of their ability. While there were other issues related to the marketing of the products being investigated, the Court determined that Commerce did not have the statutory authority to examine these issues and therefore its decision to apply adverse facts available was unsupported by substantial evidence on the record. The court specifically instructed Commerce to reconsider whether and to what extent it will use the correctly provided answers to determine the antidumping margin, reconsider its application of an adverse inference, and to the extent Commerce changes its rate, to also recalculate other cabinet producers’ rates.