CBP recently updated its frequently asked questions about the withhold release order aimed at silica-based products from China that made a first mention of de minimis considerations (see 2108030026). CBP's revised response to a question about whether finished products containing a small percentage of silica-based products subject to the WRO now says the agency “recognizes there may be some very fact-specific instances, where the question of the contribution of prohibited labor to the whole of a product (from a quantitative and a qualitative perspective) is something that a court might consider with respect to the statutory intent of Section 1307 of Title 19, United States Code.” The updated version also removes any mention of the phrase “de minimis” and an example of a de minimis contribution.

The Commerce Department's decision to continue applying adverse facts available due to the Chinese government's alleged shortcoming in its questionnaire responses during a countervailing duty investigation runs contrary to a court order from the Court of International Trade, plaintiff Yama Ribbons and Bows Co. said in a Sept. 13 filing. Commerce held that AFA was warranted, in part, because the Chinese government did not fully answer its questions on subsidy programs for synthetic yarn and caustic soda. The court ruled to the contrary, making the continued use of AFA in Commerce's remand results unsupported and contrary to law, the brief said (Yama Ribbons and Bows Co., Ltd. v. United States, CIT #19-00047).

The following lawsuits were recently filed at the Court of International Trade:

The Commerce Department was wrong to extend a total adverse facts available antidumping duty finding to "all other" respondents in an AD review, Indian exporter Kisaan Die Tech Private Limited said in a Sept. 14 complaint at the Court of International Trade (Kissan Die Tech Private Limited v. United States, CIT #21-00512). Commerce picked only one company, Chandan Steel Limited, to serve as mandatory respondent in the 2018-19 administrative review of the antidumping duty order on stainless steel flanges from India. However, Commerce had more than 40 to choose from, Kisaan said. Nevertheless, the agency settled for just Chandan and hit it with the punitive 146.25% dumping rate after finding that the company failed to cooperate to the best of its ability. "Commerce never determined that Plaintiff nor any of the other 'all other' respondents failed to cooperate with the agency’s review to the best of their ability," Kisaan said. The plaintiff now argues that it is not affiliated with Chandan and thus should not face the consequences for its alleged failure to cooperate.

The Commerce Department's use of adverse facts available when weighing Bosun Tool's country of origin information using a first-in-first-out (FIFO) methodology was justified, Justice Department said in Sept. 13 comments at the Court of International Trade (Diamond Sawblades Manufacturers' Coalition v. United States, CIT #17-00167).

Chinese exporter Yinfeng ripped the Commerce Department's decision to apply adverse facts available relating to the agency's inability to verify non-use of China's Export Buyer's Credit Program, in a motion for judgment at the Court of International Trade. Commerce's use of AFA for the EBCP has been shot down repeatedly at CIT, yet the practice continues, Yinfeng said (Fujian Yinfeng Imp & Exp Trading Co., Ltd. v. United States, CIT #21-0088).

The Department of Justice in a Sept. 13 filing sought Court of International Trade approval of the Commerce Department's remand results stemming from the 2016-17 administrative review of the antidumping duty order on circular welded non-alloy steel pipe from South Korea (see 2106220064), which dropped a cost-based particular market situation adjustment from the sales-below-cost test. However, DOJ did note that Commerce filed its remand results under respectful protest, continuing to find a particular market situation exists in South Korea. Following elimination of the PMS adjustment, Husteel, one of the plaintiffs in the case, received a 6.44% dumping rate, down from 10.91%, while Hyundai, the other plaintiff, received a 4.82% rate, down from 8.14%. Hyundai agreed with the remand results as well in an Aug. 25 filing (see 2108260026), citing that no parties submitted comments opposing the remand results (Husteel Co., Ltd. v. U.S., CIT #19-00107).

Five steel companies filed an amicus brief at the U.S. Court of Appeals for the Federal Circuit in support of a full court rehearing in a critical case on presidential power regarding the Section 232 steel and aluminum tariffs. The brief, filed Sept. 7 by Oman Fasteners, Huttig Building Products, Koki Holdings America, J. Conrad and Metropolitan Staple, was accepted by the appellate court Sept. 9. The five companies tap into the dissenting opinion at the Federal Circuit along with the Court of International Trade's original ruling to make the case that the appellate court erred in finding that the president could hike the Section 232 duties on Turkish goods well beyond procedural time limits (Transpacific Steel LLC, et al. v. United States, Fed. Cir. #20-2157).

Kumho Tire (Vietnam) Co. filed a complaint with the Court of International Trade challenging the Commerce Department's finding that a countervailable subsidy existed in the form of Vietnam's currency manipulation practices (Kumho Tire (Vietnam) Co., Ltd. v. United States, CIT #21-00397). KTV was a respondent in the CVD investigation of passenger vehicle and light truck tires from Vietnam. In Commerce's final determination, KTV got hit with a 7.89% subsidy rate. In the complaint, KTV challenged three parts of this final determination, which include the finding that KTV got a countervailable benefit through its land-use rights, "even though Plaintiff’s acquisition of such rights pre-dated Vietnam’s accession to the World Trade Organization," through Vietnam's currency practices and through Vietnam's import-duty exemptions program for imported inputs used in exported products

The U.S. Court of Appeals for the Federal Circuit filed its mandates on Sept. 9 in two nearly identical Court of International Trade cases, following a decision from the appellate court two months earlier. In the case, the Federal Circuit upheld CIT's denial of CSC Sugar's challenge to a 2020 amendment to an antidumping suspension agreement on sugar from Mexico, in a July 19 ruling (see 2107190038) (CSC Sugar LLC v. United States, CIT #16-00016 and #20-00017).