Although the Commerce Department could get a more accurate dumping rate for the non-individually examined respondents in antidumping reviews by selecting more mandatory respondents, it has no legal requirement to do so, the Court of International Trade said in a Dec. 17 opinion. Sustaining Commerce's remand results, Judge Richard Eaton said that the agency properly excluded one of the two mandatory respondents' zero percent dumping rate and merely applied the other respondent's rate to all others in the review. The court also upheld Commerce's selection of surrogate data in the face of the plaintiffs' challenge.

Antidumping respondent Jilin Forest Industry Jinqiao Flooring Group continued to argue that assigning it the China-wide entity rate is an unfair application of adverse facts available in Dec. 16 comments on the Commerce Department's remand results submitted to the Court of International Trade. Notably, though, Jinqiao Flooring did not mention a recent U.S. Court of Appeals for the Federal Circuit opinion that found that China-wide rates can still be based on AFA even if no members of the countrywide entity were found to be uncooperative. Nevertheless, the company claimed it should be granted a separate dumping rate and that substantial evidence does not back Commerce's contention that it is de facto controlled by the Chinese government (Jilin Forest Industry Jinqiao Flooring Group v. U.S., CIT #18-00191).

Five Republican Senators filed an amicus brief on Dec. 15 with the U.S. Supreme Court, urging it to take up a case over the limits of the president's authority under the Section 232 national security tariff statute. The brief, signed by Sens. Pat Toomey, R-Pa.; Mike Crapo, R-Idaho; Bill Cassidy, R-La.; Mike Lee, R-Utah; and Ben Sasse, R-Neb., argues against a U.S. Court of Appeals for the Federal Circuit opinion spurning time limits imposed in the statute. The time limits are crucial to ensuring that "Congress makes the major policy decisions regarding the regulation of foreign commerce," the lawmakers said.

In its comments on the Commerce Department's remand results, antidumping review petitioner Nucor Tubular grappled with a recent U.S. Court of Appeals for the Federal Circuit opinion rejecting particular market situation adjustments for the sales-below-cost test. Arguing that since this decision is not yet binding as the mandate has not been issued, the Court of International Trade can still consider Nucor's position and rule in favor of the PMS adjustment (Garg Tube Export v. U.S., CIT #20-00026).

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The Commerce Department found that two companies' door thresholds qualify for the finished merchandise exclusion to the antidumping and countervailing duty orders on aluminum extrusions from China, in a pair of remand results at the Court of International Trade, reversing its position on the issue under protest. The remand results came after a court opinion that did not agree with Commerce's original holding that the door thresholds from Worldwide Door Components and Columbia Aluminum Products were subassemblies that required further incorporation into a larger downstream product (Worldwide Door Components, Inc. v. United States, CIT #19-00012) (Columbia Aluminum Products, LLC v. United States, CIT # 19-00013).

The Commerce Department said that two countervailing duty respondents did not use China's Export Buyer's Credit Program, in Dec. 13 remand results, flipping its position on the issue. The agency also granted one of the respondents, Canadian Solar, an entered value adjustment in response to remand instructions from the Court of International Trade that spurned the agency's decision to not make the adjustment. If sustained, the result would be a CVD rate cut for the respondents and non-selected companies (Canadian Solar Inc., et al. v. United States, CIT Consol. #19-00178).

While the companies found to have evaded antidumping and countervailing duties on hardwood plywood from China argue that the evasion investigation deprived them of their due process rights, this is not how Congress set up the evasion statute, the Department of Justice argued in a Dec. 10 brief. Opposing the plaintiffs, led by American Pacific Plywood, at the Court of International Trade, DOJ said that the Enforce and Protect Act does not require CBP to notify a party that it's under investigation nor give a company access to confidential information or an opportunity to be heard. DOJ also made the case to CIT that the facts back up its ultimate evasion finding (American Pacific Plywood, Inc. et al. v. United States, CIT Consol. #20-03914).

The Commerce Department must either further explain or reconsider its decision to adjust the steel plate costs for all reported control numbers in an antidumping duty investigation into wind towers, the Court of International Trade said in a Dec. 13 ruling. The agency must do so since it failed to group the CONNUMs by any of the established 11 physical characteristics used to differentiate the products or otherwise use the characteristics as a "guidepost," Judge Leo Gordon said.

The Commerce Department can no longer make a particular market situation adjustment to an antidumping respondent's cost of production in a sales-below-cost test, the U.S. Court of Appeals for the Federal Circuit held in a Dec. 10 opinion. Cementing what the Court of International Trade has repeatedly held, a three-judge panel at the appellate court said that the statute -- in particular, a section of the 2015 Trade Preferences Extension Act -- does not permit such a PMS adjustment. Rather, the statute only allows a PMS adjustment for constructed value, the Federal Circuit said.