United States Court of International Trade

19-128

Before the Court in American Cast Iron Pipe Co. et. al. v. United States et. al. Slip Op. 19-128, Court Nos. 19-00082 & 19-00088 (October 16, 2019) were challenges to the final “less-than-fair-value” (“LTFV”) determination made by Commerce in the antidumping duty investigation of large diameter steel pipe from Canada. Specifically, the Court reviewed defendant and defendant intervenor Evraz’s motion to dismiss.  The Government and Evraz argued the Court lacked jurisdiction under the “Special Rule” of 19 U.S.C. § 1516a(g)(3)(B), which is applicable to review of antidumping and countervailing duty determinations involving goods of a party to the North American Free Trade Agreement (“NAFTA”). For the following reasons, the Court agreed jurisdiction was not proper and granted the motions to dismiss in both cases. 

“Plaintiffs assert jurisdiction according to 28 U.S.C. § 1581(c), under which the Court of International Trade has exclusive jurisdiction of actions brought under Section 516A(a) of the Tariff Act of 1930, … including an action seeking judicial review of a final less-than-fair-value determination by Commerce.” Id. at 5. “Under the Special Rule, a final determination of less-than-fair-value is reviewable … only if the party seeking to commence review has provided timely notice of its intent to commence such review to—(i) the United States Secretary and the relevant FTA [Free Trade Agreement] Secretary; (ii) all interested parties who were parties to the proceeding in connection with which the matter arises; and (iii) the administering authority…, as appropriate.” Id. “The Special Rule defines … what is meant by the statutory term has provided timely notice: [s]uch notice is timely provided if the notice is delivered no later than the date that is 20 days after the date described in subparagraph (A) or (B) of subsection (a)(5) of this section that is applicable to such determination .” Id. at 6.  In this case, plaintiffs’ notice of intention to commence judicial review of the LTFV determination was made on May 8, 2019. According to the Court, the final LTFV determination was published by Commerce on February 27, 2019 and the 20-day period began running on that date. The 20 day period expired on March 19th, because of this the May 8th notice was untimely.

19-131 & 19-132

Before the Court in CSC Sugar LLC, et. al. v. United States, et. al., Slip Ops. 19-131 & 19-132, Court Nos. 17-00214 & 17-00215 (October 28, 2019) were challenges to Commerce’s determination to amend the suspension agreement regarding the countervailing duty (“CVD”) and antidumping duty (“ADD”) on sugar from Mexico. In 2014, after the American Sugar Coalition, filed ADD and CVD petitions, Commerce issued a preliminary determination that countervailable subsidies were being provided and the sugar was being sold at less than fair value. Subsequently, Commerce and the Government of Mexico negotiated and signed a suspension agreement. In 2017, Commerce and the Government of Mexico negotiated amendments to the suspension agreement amending the definition of refined sugar. After this case was filed, Commerce was directed to file the administrative record with the Court. Previously in litigation, the Court ordered Commerce to supplement the administrative record with any ex parte meetings about the amendments. Commerce then supplemented the administrative record with a consultation log and email log detailing the ex parte communications. CSC Sugar then filed a motion for judgment on the agency record and argued Commerce’s failure during the suspension amendment negotiations to maintain contemporaneous ex parte meeting memoranda pursuant to 19 § 1677f(a)(3) could not be adequately remedied by the Government’s belated and incomplete supplementation of the record and the only adequate remedy is to dismiss the amendments. For the following reasons the Court agreed, vacated the amendments, and granted summary judgment on the agency record.

The Court explained that under 19 § 1677f(a)(3 ) “whether or not information is in the record via the petition or otherwise, Commerce is not entitled to choose which covered ex parte meetings it will memorialize … placing a few very summary memoranda on the record after all decision-making is complete is useless and disrespectful of the administrative process, as well as violative of the statute.” Id. at 11. The Court dismissed the government’s arguments that plaintiff was not prejudiced or the error was harmless saying “Commerce’s disregard as to timing does not serve procedural due process or the goal of transparency, as required by the statute.” As such, the motions were granted in both cases and the amendments were vacated.

19-135

Before the Court in Stupp Corp. et. al. v. United States et. al., Slip Op. 19-134, Court No. 15-00334 (October 21, 2019) was Commerce’s remand determinations involving the less than fair value (“LTFV”) investigation of imports of welded line pipe from the Republic of Korea (“Korea”). The Court previously ordered Commerce to further explain or reconsider its decision to include certain local sales in defendant intervenor Hyundai HYSCO’s (“HYSCO”) home market sales database. Commerce decided to remove the challenged local sales from HYSCO’s home market database and refused to reconsider HYSCO’s home market viability. For the following reasons, the court remands for further explanation or reconsideration its refusal to reconsider HYSCO’s home market viability.

In an antidumping investigation, Commerce compares the export price, or the constructed export price, of the subject merchandise, to its normal value.” Id. at 8. “Typically, the normal value is the price at which a foreign like product is first sold for consumption in the exporting country.” Id. However, “if Commerce determines that the aggregate quantity of the foreign like product in the exporting country is insufficient to permit proper comparison, Commerce shall normally look to sales from a third country.” Id. The Court said that because Commerce refused to reconsider its home market viability analysis after removing the challenged sales, the agency “failed to comply with its statutory and regulatory mandate.” Id. at 9. Commerce argued that since this analysis is completed early in an investigation it was too late to conduct the analysis now. The Court dismissed this by saying “to allow Commerce to use home market sales that were insufficient to permit a proper comparison because Commerce determined such insufficiency late in its process would frustrate the purpose of the statute.” Id. at 11. As such, the Court remanded back to Commerce to conduct the home market analysis.