The Commerce Department's use of adverse facts available against Greek exporter Corinth Pipeworks Pipe Industry was "flawed" since the agency never gave the company a chance to comment on its calculation and analysis, Corinth argued in its Sept. 29 opening brief at the U.S. Court of Appeals for the Federal Circuit. The exporter added that Commerce also failed to support its use of a 41.04% AFA rate since the company didn't withhold information, impede the antidumping duty review on large diameter welded pipe from Greece or fail to submit information in the form and manner requested (Corinth Pipeworks Pipe Industry v. United States, Fed. Cir. # 23-2094).
Court of Federal Appeals Trade activity
The Commerce Department's refusal to adjust its threshold for differentiating between different types of pasta as part of the duty calculation in the 2018-19 antidumping review of pasta from Italy violated the law, exporters La Molisana and Valdigrano di Flavio Pagani argued in their Sept. 26 opening brief at the U.S. Court of Appeals for the Federal Circuit. La Molisana said Commerce's use of the "protein content on a FDA nutrition fact panel to determine protein content" ignores the different standards used in finding the number of grams of protein (La Molisana v. United States, Fed. Cir. # 23-2060).
The U.S. Court of Appeals for the Federal Circuit on Sept. 25 issued its mandate in a case concerning a $5.7 million customs penalty suit against importer Katana Racing. In the opinion, the appellate court said the Court of International Trade improperly dismissed the suit for lack of jurisdiction (see 2308030034). The trade court said Katana properly revoked a statute of limitations waiver, making the U.S. government's suit untimely, but the appellate court said the statute of limitations is "not a jurisdictional time limit" and instead provides an "affirmative defense" that can be waived (U.S. v. Katana Racing, Fed. Cir. # 22-1832).
The U.S. Court of Appeals for the Federal Circuit issued its mandate Sept. 22 in Royal Brush Manufacturing v. U.S. The appellate court ruled in July that CBP violated importer Royal Brush's due process rights during an Enforce and Protect Act investigation by not providing the company with access to business confidential information (see 2307270038). The ruling has raised questions on how CBP would respond and how it will conduct its antidumping and countervailing duty evasion investigations in the future. Royal Brush counsel Steven Gordon emailed that the U.S. hasn't petitioned for a rehearing and that he doesn't expect an appeal to the U.S. Supreme Court (Royal Brush Manufacturing v. U.S., Fed. Cir. # 22-1226).
The Judicial Council of the Federal Circuit in a Sept. 20 order affirmed a three-judge panel's suggestion that Judge Pauline Newman shouldn't be assigned new cases for one year due to her efforts to impede the probe into her fitness to continue serving on the bench. The council said the evidence "amply justified" an order subjecting Newman to a medical examination and that her refusal to comply, among other things, thwarted the council's ability to decide whether she "has a disability that renders her unable to perform the duties of her important office."
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Importer Magid Glove & Safety Manufacturing and DOJ argued during oral arguments Sept. 7 whether a test established in a previous U.S. Court of Appeals for the Federal Circuit case meant that plastic-dipped knit gloves are correctly classified as articles of plastic rather than as gloves under the Harmonized Tariff Schedule (Magid Glove & Safety Manufacturing v. U.S., Fed. Cir. # 22-1793).
The U.S. Court of Appeals for the Federal Circuit in a Sept. 7 order upheld the International Trade Commission's negative injury determination in the antidumping duty investigation on fabricated structural steel from China. Judges Jimmie Reyna, William Bryson and Tiffany Cunningham ruled against the Full Member Subgroup of the American Institute of Steel Construction in finding that the ITC did not err by declining to settle an alleged ambiguity in the scope of the domestic like product, deciding that the captive production exception is not applicable and declaring that imports of fabricated structural steel did not lead to significant price effects.
The U.S. and antidumping duty petitioner Wind Tower Trade Coalition failed to respond to the "critical arguments" raised by exporter Dongkuk S&C Co. in a case on the AD investigation on utility scale wind towers from South Korea, Dongkuk told the U.S. Court of Appeals for the Federal Circuit. In a Sept. 1 reply brief, Dongkuk said both the government and the coalition did not, or could not, establish that the Commerce Department relied on substantial evidence when it weight averaged the respondent's steel plate cost for all reported control numbers (CONNUMs) (Dongkuk S&C Co. v. U.S., Fed. Cir. #23-1419).
A lawsuit from U.S. Court of Appeals for the Federal Circuit Judge Pauline Newman against her colleagues' investigation into her fitness to continue serving on the bench should be dismissed, CAFC Judges Kimberly Moore, Sharon Prost and Richard Taranto argued in a Sept. 1 motion to dismiss. The judges -- who comprise the three-judge panel carrying out the investigation on the 96-year-old Newman -- said that Newman's suit "suffers from fatal jurisdictional flaws" (The Hon. Pauline Newman v. The Hon. Kimberly A. Moore, D.D.C. # 23-01334).