The Court of Appeals for the Federal Circuit on May 20 ruled that the Court of International Trade was wrong to establish a 50% threshold when determining whether demand for an agricultural product is "substantially dependent" on its raw upstream iteration for purposes of assigning countervailing duties. Judges Sharon Prost, William Bryson and Leonard Stark said the Commerce Department has significant leeway in determining whether substantial dependence exists. In the present case, which assessed subsidies to Spanish raw olive growers, the court affirmed Commerce's finding of substantial dependence, finding that errors in the agency's analysis of dependence were nonprejudicial to the affected Spanish ripe olive exporters.
Court of Federal Appeals Trade activity
The U.S. Court of Appeals for the Federal Circuit on May 15 said the scope of the antidumping duty order on circular welded carbon steel pipes and tubes from Thailand unambiguously includes dual-stenciled pipe, reversing the Court of International Trade's decision.
Trade Law Daily is providing readers with the top stories from last week, in case you missed them. All articles can be found by searching on the title or by clicking on the hyperlinked reference number.
The U.S. told the U.S. Court of Appeals for the Federal Circuit that the principle of stare decisis requires the appellate court to sustain the legality of the Commerce Department's non-market economy policy (Jilin Forest Industry Jinqiao Flooring Group Co. v. United States, Fed. Cir. # 23-2245).
The U.S. Court of Appeals for the Federal Circuit on May 15 reversed a Court of International Trade decision sustaining the exclusion of dual-stenciled pipe from the antidumping duty order on circular welded carbon steel pipes and tubes from Thailand. The AD order's scope language included standard pipe but excluded line pipe, and exporter Saha Thai Steel Pipe Public Co.'s dual-stenciled pipes fit the industry specifications for both line and standard pipe. CAFC Judges Alan Lourie and Jimmie Reyna said that meeting an additional specification doesn't "strip away the qualification of these pipes as standard pipes." The majority added that the (k)(1) materials support the inclusion of dual-stenciled pipes under the order's scope. Judge Raymond Chen dissented, finding that the plain scope language is ambiguous as to whether it includes dual-stenciled pipe, and saying that the (k)(1) factors support exclusion of the dual-stenciled pipe.
The Clerk's Office and Circuit Library of the U.S. Court of Appeals for the Federal Circuit will be unavailable for in-person public services and support May 14. The court said nonelectronic filings and materials can be deposited in the night drop box on H Street NW, located between Vermont Avenue and 15th Street NW, in Washington, D.C., though electronic filing will remain available.
The Clerk's Office of the U.S. Court of Appeals for the Federal Circuit on May 9 announced that it will nix the live chat feature on its website. The Clerk's Office said parties will still be able to call the office at (202) 275-8000 or reach out via the Contact Us page "during normal operating hours."
The Commerce Department was wrong to deduct Section 301 duties from an exporter’s U.S. price as part of its antidumping duty calculation, that exporter said May 3 in defense of an earlier motion for judgment. It said Section 301 duties aren’t “normal import duties,” but rather remedial “special” duties that statute requires be included in export price calculations (Neimenggu Fufeng Biotechnologies Co. v. U.S., CIT # 23-00068).
The presumption of foreign state control in antidumping duty cases doesn't disappear after the exporter presents "minimal contradictory evidence," the government said in a reply brief on May 1 at the U.S. Court of Appeals for the Federal Circuit. Contrary to claims made by exporters Aeolus Tyre Co. and Guizhou Tyre Co., the government said, the Commerce Department "has long required respondents to demonstrate autonomy with respect to" all four criteria used to assess freedom from foreign state control, even for companies only minority-owned by a government entity (Guizhou Tyre Co. v. United States, Fed. Cir. # 23-2163).
A Chinese brick exporter fought back April 29 against opposition to its motion for judgment by the U.S. (see 2402130053) and domestic producers (see 2403120068), saying that its products weren't circumventing antidumping and countervailing duties on magnesia carbon bricks from China because the products are actually magnesia alumina graphite bricks, which are duty-free. The Commerce Department is “cherry-picking” evidence from prior scope rulings to prove otherwise, it said (Fedmet Resources v. U.S., CIT # 23-00117).