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).
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).
The International Trade Commission did not settle a "critical ambiguity" when defining the domestic like product in an investigation on fabricated structural steel from Canada, Chile and Mexico that found the imports did not harm the domestic industry, argued petitioner Full Member Subgroup of the American Institute of Steel Construction (AISC) in Jan. 10 oral arguments at the U.S. Court of Appeals for the Federal Circuit (Full Member Subgroup of the American Institute of Steel Construction v. United States, Fed. Cir. # 22-1176).
The U.S. Court of Appeals for the Federal Circuit in a Jan. 10 order stayed the due date for plaintiff-appellants' reply brief in a countervailing duty case, pending the resolution of the appellants' motion seeking another 900 words for their reply. The appellants, the province of Quebec, Marmen, Marmen Energie, Marmen Energy and the government of Canada, claimed good cause existed to give them the additional words since the U.S. argued that the appellants failed to exhaust their administrative remedies relating to the specificity of the Quebec On-The-Job Training Tax Credit in addition to the four underlying issues in the case (Quebec v. United States, Fed. Cir. # 22-1807).
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).
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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).
The U.S. Court of Appeals for the Federal Circuit in a Jan. 9 order gave the U.S. more time to file its reply brief in a case involving imports seized as "drug paraphernalia." The government now has until Feb. 10 to submit its response. Root Sciences filed the case after CBP seized one of its cannabis crude extract recovery machines. The agency didn't notify Root of the seizure but instead sent the importer an automated notice that the goods had been deemed excluded from entry. Root eventually learned of the seizure through an email from DOJ eight hours after filing its case at the Court of International Trade (Root Sciences v. United States, Fed. Cir. #22-1795).
Two Court of International Trade decisions cited by plaintiff-appellants in a scope case as supplemental authorities need not be considered by the U.S. Court of Appeals for the Federal Circuit, defendant-appellee Aluminum Extrusions Fair Trade Committee said in a Jan. 4 letter to the appellate court. The CIT decisions are not "pertinent and significant" because they are "not binding on this court" and "are simply further decisions from the same dissenting judge" at the trade court, the appellee said (China Custom Manufacturing v. U.S., Fed. Cir. # 22-1345).
The U.S. Court of Appeals for the Federal Circuit issued its mandate Jan. 4 in a case denying a group of U.S. steel companies the right to intervene in a series of cases challenging denied exclusion requests for Section 232 steel and aluminum tariffs. The mandate comes after the court denied the steel companies' rehearing bid over the decision (see 2212280017). In the case, the Court of International Trade and later the Federal Circuit said that a proposed intervenor must have a legally protectable interest in the transaction at issue, have a direct relationship with the litigation where the intervenor will either gain or lose by the direct judgment, or show its interests are not adequately expressed by the government. The courts ruled the steel companies failed on all three fronts.