The Court of International Trade on Dec. 19 ruled that the Commerce Department improperly excluded certain solar cell sales from consolidated antidumping duty respondent Inventec Solar Energy Corp.'s (ISEC's) dumping margin based on its finding that ISEC did not have any actual or constructive knowledge that its goods would ultimately end up in the United States. Judge Leo Gordon said that given "the totality of the record, the court cannot sustain as reasonable" the finding that ISEC did not have actual knowledge of the solar cells' destination.

CBP improperly found that importer Diamond Tools Technology made a "material and false" statement in the agency's Enforce and Protect Act evasion finding, the Court of International Trade ruled in a Dec. 16 opinion. Sending the case back to CBP again, Judge Timothy Reif ruled that the agency's use of the EAPA statute is inconsistent with the law's language and structure, and even if its use was legal, its interpretation of the statute is not entitled to deference. Diamond Tools properly classified its merchandise as not covered merchandise given the guidance it had at the time, the judge said.

The Commerce Department properly used adverse facts available for countervailing duty respondents' alleged use of China's Export Buyer's Credit Program, the Court of International Trade held in a Dec. 8 opinion made public Dec. 16. Judge Timothy Reif penned the trade court's second opinion upholding the use of AFA for the EBCP after a string of court decisions rejected the use of AFA for the program. The judge held that certain information that Commerce was not given by the Chinese government was critical to verifying non-use of the EBCP, given that the respondents' customers failed to submit non-use certifications.

The Commerce Department stuck by its decision to rely on antidumping duty respondent Dillinger's books and records to find the cost of production (COP) for non-prime products, the agency said in Dec. 15 remand results submitted to the Court of International Trade. Commerce said that relying on Dillinger's books and records, or the recorded total costs assigned to the prime and non-prime goods, was the "only reasonable approach" (AG der Dillinger Huttenwerke v. United States, CIT #17-00158).

The Court of International Trade on Dec. 15 dismissed a case seeking the release of goods excluded over forced labor concerns without plaintiff Virtus Nutrition's proposed condition that CBP allow the goods to be reexported. Judge Timothy Reif said the temporary storage agreement under which the goods are currently being held does not give a basis to include the proposed stipulation. Virtus "retains recourse" to address its concern that CBP can seize the goods rather than allow their exportation, Reif said.

The Office of the U.S. Trade Representative stuck by its decision not to reinstate a Section 301 China tariff exclusion for drinking water cooler products, the agency said in Dec. 14 remand results submitted to the Court of International Trade. USTR said that while the availability of these goods from places outside of China is limited, the record shows that sources outside of China have picked up since 2018 with third-country imports growing "significantly in the first six months after the exclusion expired." While these sources, along with domestic production, fail to meet domestic demand, the record does not show that the additional duties are "impacting or resulting in severe economic harm to U.S. companies or other interests" (DS Services of America v. United States, CIT #22-00157).

The Commerce Department’s recent preliminary determination that Southeast Asian solar cells and panels are circumventing antidumping and countervailing duties (see 2212020064) left several questions unanswered, and lawyers for the Solar Energy Industries Association hope the agency will clarify these issues as the case proceeds to its final determinations, they said during a webinar Dec. 13.

The Court of International Trade should reject a request to temporarily stay an order barring the import of certain fish taken from New Zealand's West Coast North Island multispecies set-net and trawl fisheries, plaintiffs Sea Shepherd New Zealand and Sea Shepherd Conservation Society argued in a Dec. 12 reply brief. Harms the New Zealand fisheries will purportedly suffer absent a stay are "short-lived, overstated, and speculative," the brief said, but "[m]ore importantly, they pale in comparison to the ongoing risk posed to the Maui dolphin from set net and trawl fisheries that operate within the dolphins' range" (Sea Shepherd New Zealand v. United States, CIT #20-00112).

The U.S. Department of the Interior unreasonably delayed responding to a 2014 request to certify Mexico under the Pelly Amendments to the Fishermen's Protective Act of 1967 due to Mexico's failure to stop illegal fishing of and trade in endangered totoaba, an "imperiled fish," the Center for Biological Diversity, Animal Welfare Institute and Natural Resources Defense Council argued. In a suit filed Dec. 14 at the Court of International Trade, the conservation groups said the department and Interior Secretary Deb Haaland violated the Administrative Procedure Act by failing to respond to the petition, and said the killing of the totoaba is aiding in the "imminent extinction of the vaquita porpoise" (Center for Biological Diversity v. Deb Haaland, CIT #22-00339).

Correction: In its preliminary determinations in anti-circumvention inquiries on solar cells from Cambodia, Malaysia, Thailand and Vietnam, Commerce declared the 22 companies that did not cooperate with the inquiries are ineligible for certification processes for goods from exempt exporters and goods that don’t meet Chinese content requirements. However, they may submit certifications that their goods are “applicable” entries that qualify for a two-year grace period from any duties imposed under the anti-circumvention inquiries (see 2212020064 and 2212070025). Such certifications are due by Jan. 23 for entries since April 1, 2022, and at time of entry summary for entries on or after Dec. 23.