The Commerce Department properly used adverse facts available for antidumping duty respondent Sino-Maple, but the agency did not properly derive the AFA rate, the Court of International Trade ruled in a Dec. 22 opinion made public Jan. 13. Judge Richard Eaton said that Commerce properly used AFA due to Sino-Maple's failure to provide constructed export price information on a per transaction basis for U.S. sales made to its U.S. affiliate by third-country manufacturers. The judge, however, sent back the AFA rate itself, finding that the agency cannot use the highest transaction-specific margin for the other respondent when setting the AFA rate. Eaton also upheld Commerce's decisions to reject separate rate applications from Scholar Home and Baishan Huafeng.

The Commerce Department properly found that two out of three types of glass surface products made by SMA Surfaces, formerly known as Polarstone US, are included within the scope of the antidumping and countervailing duty orders on quartz surface products from China, the Court of International Trade found in a Dec. 12 opinion. However, Commerce did not support its finding that the remaining type fits under the orders, Judge Gary Katzmann ruled while remanding the case.

Judges at the U.S. Court of Appeals for the Federal Circuit during Jan. 12 oral arguments expressed skepticism over claims from antidumping respondent Zhejiang Machinery Import & Export Corp. (ZMC) in its bid to rebut the presumption of government control and win a separate rate in an antidumping duty review. Judges Sharon Prost, Jimmy Reyna and Todd Hughes questioned whether ZMC's ownership structure could ever be truly free of government control, calling it "implausible." At another point in the arguments, DOJ attorney Kelly Krystyniak said that given the combination of China's corporate laws and ZMC's ownership, it may be impossible to rebut the presumption of government control and that ZMC has no inherent right to be able to rebut it (Zhejiang Machinery Import & Export v. United States, Fed. Cir. # 21-2257).

Exporter Oman Fasteners has failed to show that paying cash deposits for antidumping duties will cause it immediate and irreparable harm, the U.S. argued in a Jan. 11 brief opposing the exporter's bid for a preliminary injunction against the payment of the cash deposits. The government said that Oman Fastener's bid to suspend collection of the cash deposits "asks for relief far beyond" the usual procedures "such that the United States would have almost no security to cover future duty liability." The exporter also has not shown that it will likely succeed on the merits of the case, the government said (Oman Fasteners v. United States, CIT # 22-00348).

The U.S. Court of Appeals for the Federal Circuit heard claims over whether Krakatu POSCO -- a joint venture between a private South Korean steel company and an Indonesian government-owned firm -- was an authority or directed by an authority for the purposes of a countervailing duty investigation. During oral arguments Jan. 11 before Judges Alan Lourie, Timothy Dyk and Kara Stoll, counsel for CVD petitioner Wind Tower Trade Coalition, Kenertec Power System and the U.S. also argued over whether Indonesia's Rediscount Loan Program was an upstream subsidy and thus countervailable (Kenertec Power System v. U.S., CIT Consol. # 20-03687).

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The Court of International Trade in a Jan. 10 order upheld the Commerce Department's remand results in a case involving the 2018 administrative review of the countervailing duty order on solar cells from China. On remand, Commerce said that because one of respondent Wuxi Tianran Photovoltaic's U.S. customers did not participate in the review's virtual verification, the agency didn't have enough information to verify Wuxi Tianran did not benefit from China's Export Buyer's Credit Program. The respondent conceded that Commerce complied with the trade court's remand orders. Given the lack of any challenge, Judge Jane Restani upheld the case.

The U.S. Court of Appeals for the Federal Circuit, during Jan. 10 oral arguments, heard disputes over whether the court should follow the Court of International Trade in setting aside Section 232 national security tariffs on derivative products made of steel and aluminum. Seeking to differentiate the appeal from the Federal Circuit's decision in Transpacific Steel v. U.S., in which the court said the president can take certain Section 232 action beyond procedural deadlines, counsel for plaintiff-appellants PrimeSource Building Products, Oman Fasteners and Huttig Building Products said the matter is different for derivative goods, while the government said Transpacific has settled the matter (PrimeSource Building Products v. U.S. , Fed. Cir. # 21-2066).

The Court of International Trade in a Jan. 9 opinion denied the New Zealand government's bid to delay a preliminary injunction barring the import of certain fish taken from New Zealand's West Coast North Island multispecies set-net and trawl fisheries into the U.S. The New Zealand government requested the temporary stay of the PI to set up a traceability system that would help the govenrment identify the fish subject to the injunction. Judge Gary Katzmann said that the need to set up this system does not constitute a changed circumstance that would permit the modification of the PI.

U.S. Court of Appeals for the Federal Circuit judges questioned the limits of the finished merchandise exclusion in antidumping and countervailing duty orders during Jan. 9 oral argument in a case over whether solar panel roof mounts fall within the scope of the AD/CVD orders on aluminum extrusions from China. While Judges Pauline Newman, Raymond Chen and Tiffany Cunningham questioned plaintiff-appellant China Custom Manufacturing's contention that its solar mounts are a finished product even though they are incorporated into a larger downstream product, the judges further probed the U.S. claims against this point with equal vigor (China Custom Manufacturing v. U.S., Fed. Cir. #22-1345).