The only way importer Acquisition 362, doing business as Strategic Import Supply, could have properly challenged a CBP decision on its entries, according to the Court of International Trade, was to file a "[p]remature, overly broad, or indefinite" protest, SIS argued in a Dec. 6 supplemental brief at the U.S. Court of Appeals for the Federal Circuit. But these types of protests "do not constitute a proper basis for invoking CIT jurisdiction," the importer claimed, citing a prior Federal Circuit ruling (Acquisition 362 v. United States, Fed. Cir. #22-1161).
The U.S. cannot rely on the Commerce Department's post hoc rationalization of its decision to countervail glass subsidies in a countervailing duty review, plaintiff-appellants, led by Guangzhou Jangho Curtain Wall System Engineering Co., argued in a Dec. 5 reply brief at the U.S. Court of Appeals for the Federal Circuit. The appellants also said that the government did not take new agency action in making its determination, showing a "kind of bait and switch decision-making" decried in a key Supreme Court case (Taizhou United Imp. & Exp. Co. v. United States, Fed. Cir. 22-2000).
The Commerce Department's remand redetermination concerning an antidumping duty review on oil country tubular goods from South Korea still suffers from "legal and factual flaws" despite the correct conclusion that no particular market situation existed that distorted the costs of production, Nexteel said in its Dec. 2 comments to the Court of International Trade. Nexteel told the court that, due to what it sees as the correct conclusion, CIT should sustain the remand redetermination but should force Commerce to reconsider the PMS issue should it come up before the court in the future (Nexteel and Seah Steel v. U.S. and U.S. Steel CIT # 18-00083).
The Commerce Department in Nov. 29 remand results at the Court of International Trade dropped its particular market situation adjustment from the sales-below-cost test when calculating normal value following a voluntary remand request in an antidumping duty case. The result dropped respondent Saha Thai Steel Pipe Public Company Ltd.'s AD margin from 36.97% to 14.74%. The agency also reduced the margin for non-selected respondent Thai Premium Pipe Co. since it is part of the litigation (Saha Thai Steel Pipe Public Company v. United States, CIT #21-00627).
The Court of International Trade should reconsider its decision to uphold the Commerce Department's use of the Cohen's d test as part of its differential pricing analysis (DPA) to root out "masked" dumping, given a recent U.S. Court of Appeals for the Federal Circuit decision, plaintiff SeAH Steel Corp. argued in a Nov. 21 reply brief. Responding to the U.S.'s opposition to the rehearing bid, SeAH said that since the Federal Circuit called the use of the Cohen's d test into question in Stupp Corp. v. U.S., the trade court needs to reconsider its ruling made before the CAFC decision (SeAH Steel Corp. v. United States, CIT #19-00086).
The U.S. Court of Appeals for the Federal Circuit on Nov. 18 gave the U.S. more time to file a petition for rehearing in an antidumping duty case. In the case, the Federal Circuit found that the Commerce Department cannot select just one mandatory respondent in an antidumping duty review where multiple exporters have requested a review (see 2208290026). The court ruled that Commerce's interpretation of the statute finding that it can use only one respondent cuts against the statute's unambiguous language. The judges ruled the agency has not shown it to be otherwise reasonable to calculate the all-others rate based on only one respondent and said the directive to find a weighted average gives no reason why it's reasonable to use only a single rate. The U.S. was previously given 60 more days to file the rehearing motion, and now has another 30, giving it until Jan. 11, 2023, to file a petition for rehearing (YC Rubber Co. (North America) v. United States, Fed. Cir. # 21-1489).
The Court of International Trade erred when it dismissed a case brought by importer Rimco over alleged "excessive fines" leveled by CBP for the combination of antidumping and countervailing duty rates on steel wheels from China, Rimco argued in a Nov. 14 brief before the Court of Appeals for the Federal Circuit.
The Commerce Department will revisit its approach to "analyzing and determining the existence of a [particular market situation] that distorts costs of production" in antidumping duty proceedings, given the U.S. Court of Appeals for the Federal Circuit's opinion in Nexteel v. United States. Releasing an advance notice of proposed rulemaking in the Nov. 18 Federal Register, Commerce said that it is seeking public comments on what evidence it should and shouldn't consider when finding whether a PMS exists that supports the COP and when the amount of distortion in the COP caused by a PMS cannot be quantified based on the record.
U.S. Steel Corp., defendant-intervenor in a case over a denied Section 232 steel and aluminum tariff exclusion request, filed a notice of supplemental authority at the Court of International Trade on Nov. 14. The notice pointed to "developments" in a case before the U.S. Court of Appeals for the Federal Circuit, California Steel Industries v. U.S., in which the appellate court denied U.S. Steel the right to intervene in a different challenge to Section 232 exclusion request denials. Those "developments" reference U.S. Steel Corp.'s motion for rehearing (see 2210250056), in which it argued that the majority's ruling in the opinion cannot be squared with key Supreme Court precedent. The defendant-intervenor alerted the trade court to these developments "as they may result in a change to Federal Circuit law regarding the rights of parties to intervene in actions before the Court" (Seneca Foods Corp. v. United States, CIT #22-00243).
The U.S. Court of Appeals for the Federal Circuit issued its mandate on Nov. 14 in a case concerning the 10th administrative review of the antidumping duty order on steel nails from China. In the opinion, the appellate court ruled that the Commerce Department properly hit antidumping duty respondent Shanxi Pioneer Hardware Industrial with total adverse facts available for its failure to report all of its factors of production data on a control number (CONNUM)-specific basis (see 2209230034). The court said that the CONNUM-specific reporting requirement is an interpretive rule and not a legislative one requiring a notice-and-comment period, and that Pioneer failed to cooperate to the best of its ability by not maintaining adequate records and not developing a proper reporting methodology (Xi'an Metals & Minerals Import & Export Co. v. United States, Fed. Cir. #21-2205 -2227).