Jacob Kopnick

A group of steel importers, after suffering a defeat in the Court of International Trade, brought their broad challenge to the Section 232 steel and aluminum tariffs to the U.S. Court of Appeals for the Federal Circuit, arguing that the statute includes procedural requirements that were ignored in President Donald Trump's expansion of the tariffs. Filing its opening brief on May 24, the importers say that plain use of the mandatory word "shall" throughout Section 232 means the procedural requirements, such as an underlying report from the Commerce Department precipitating tariff action, are required. The steel importers also again argued that the commerce secretary's report is considered final agency action, ready for judicial review (Universal Steel Products, Inc. et al., v. United States, Fed. Cir. #21-1726).

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

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

GOWIN Semiconductor Corporation, a Chinese technology startup, is challenging its designation as a "Communist Chinese military company" (CCMC) in the U.S. District Court for the District of Columbia, according to a May 21 complaint. In the complaint, GOWIN attempts to prove it is not operated by the Chinese military by showing that its governing board of directors is "comprised of nine private-sector executives, two of whom are U.S. citizens (the CEO and the President)." GOWIN goes on to argue that DOD's lack of notice to the tech startup of the designation and lack of evidence in coming to a conclusion on the label violates its due process rights. The firm also says it will suffer irreparable harm from the CCMC label, and in fact, already has. "By losing U.S. and global support as a result of the CCMC designation, GOWIN has lost and will continue to lose market share to similarly situated [semiconductor] companies, many of which are more mature and firmly established than GOWIN," the complaint said.

Building materials company Bruskin International made its first arguments to the Federal Circuit in a challenge to a change to the scope during an antidumping duty investigation, claiming that the Commerce Department made numerous and significant procedural errors in the scope modification in question, in an opening brief filed May 14.

The Commerce Department failed to follow the Court of International Trade's remand orders in attempting to justify its same adverse facts available determination in an antidumping case, Vietnamese fish exporters argued in their May 21 comments on the agency's remand results. "In its haste to apply total AFA, Commerce has not actually considered and explained all of the relevant record evidence, including that which fairly detracts from its decision," the exporters said. "This was unlawful"(Hung Vuong Corporation, et al. v. United States, CIT #19-00055).

CBP's failure to alert Fedmet Resources of an Enforce and Protect Act investigation or to publish public summaries in the proceeding violated the company's constitutional due process rights, Fedmet said in a May 21 complaint in the Court of International Trade.

Turkish steel exporter Habas Sinai ve Tibbi Gazlar Istihsal Endustrisi A.S. was denied a petition for a panel rehearing by the U.S. Court of Appeals for the Federal Circuit, a May 20 order said. Habas had been seeking to overturn a March 30 Federal Circuit decision that affirmed the Commerce Department's imposition of a 14.01% countervailing duty on its exports of steel concrete reinforcing bar from Turkey. In its investigation, Commerce imposed its facts otherwise available principle since the exporter was not forthcoming about benefits received under a Turkish duty drawback program. Commerce derived the 14.01% rate from a prior rate the agency assessed on an export tax rebate program in a 1986 CVD investigation on welded pipe and tube from Turkey. Habas requested a rehearing of the decision on the grounds that it is unlawful to use an adverse facts available (AFA) rate from a program that Commerce has verified to have been terminated and that it is unlawful for the agency to fail to apply its own practice in selecting a rate for application of AFA.

The Court of International Trade erred in finding that the Commerce Department improperly applied a particular market situation when addressing purported distortions to costs of production in the 2015-16 antidumping administrative review on welded line pipe from South Korea, U.S. domestic pipe manufacturer Welspun Tubular LLC argued in its May 17 opening brief in the U.S. Court of Appeals for the Federal Circuit. Arguing that Commerce's interpretation of the PMS statute is entitled to deference and that the agency's finding of a PMS in South Korea is supported by substantial evidence, Welspun argued that CIT's reading of 2015's Trade Preferences Extension Act in a decision issued by the lower court on Jan. 4 would lead to "absurd results."

U.S. Steel Corp. told the Court of International Trade May 19 that the public release of the administrative record in a case involving Section 232 exclusions should entitle the company to the right to intervene in the case. “Among the reasons U. S. Steel cited in support of its right to intervene was the use and contextualization of factual information supplied by U. S. Steel to Commerce,” the company told the court. The Commerce Department's inadvertent released of this information means U.S. Steel's “fear has been realized,” the company said.