Court of Federal Appeals Trade activity

The U.S. Court of Appeals for the Federal Circuit, during June 6 oral arguments, questioned countervailing duty petitioner Nucor Corp.'s claims against the Commerce Department's finding that the South Korean government did not provide a countervailable subsidy via its provision of electricity in the CVD investigation on carbon and alloy steel cut-to-length plate from South Korea. Responding to Nucor's argument that Commerce should have found the actual cost of electricity sold to the CVD respondents, Judge Raymond Chen said this "seems so unrealistically granular it doesn't make any sense" (POSCO v. United States, Fed. Cir. # 22-1525).

The U.S. Court of Appeals for the Federal Circuit should disregard the government's procedural arguments in a case on whether Vandewater International's steel branch outlets fall within the scope of the antidumping duty order on butt-weld pipe fittings from China, importer Smith-Cooper International (SCI) argued in a reply brief (Vandewater International v. United States, Fed. Cir. # 23-1093).

The judicial and administrative decisions cited by U.S. and antidumping petitioner Mid Continent Steel & Wire to defend the Commerce Department's use of adverse facts available against exporter Unicatch Industrial Co. do not apply to Unicatch's court challenge, Unicatch said in a reply brief at the U.S. Court of Appeals for the Federal Circuit. Commerce relied on AFA against Unicatch for failing to submit a complete cost reconciliation in the form requested by the agency, hitting the exporter with a 78.17% dumping rate (Pro-Team Coil Nail Enterprise v. United States, Fed. Cir. # 22-2241).

Solar cell exporters JA Solar Technology Yangzhou Co., Shanghai JA Solar Technology Co. and JingAo Solar Co. objected to the U.S. Court of Appeals for the Federal Circuit's order saying that it will reform the caption to designate the companies as appellees. JA Solar instead asked to remain a plaintiff since it supports appellant Risen Energy even though it did not itself file a notice of appeal. "Second, JA Solar will not be filing or joining any brief in this proceeding, nor does it intend to participate in oral argument," the brief said. The suit is challenging the Commerce Department's surrogate values for silver paste and use partial neutral facts available in the 2017-18 administrative review of the antidumping duty order on solar cells from China (see 2301050026) (Risen Energy Co. v. U.S., Fed. Cir. # 23-1550).

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The Court of International Trade overlooked the principle that the Commerce Department has the burden to support its use of the expected method in antidumping cases, importer PrimeSource Building Products argued in a reply brief at the U.S. Court of Appeals for the Federal Circuit. The non-selected respondent filed the suit to challenge Commerce's decision to weight average two adverse facts available rates when calculating the non-selected respondents' rate in an administrative review on steel nails from Taiwan (PrimeSource Building Products v. United States, Fed. Cir. # 22-2128).

Appellant and importer Smith-Cooper International asked the U.S. Court of Appeals for the Federal Circuit for 3,000 more words in its reply brief as part of a suit on scope case on Vandewater International's steel branch outlets. SCI said appellant Sigma Corp. and the U.S. consented to the request and that good cause exists to allow the company to use more words given the "voluminous nature of the Government’s response brief, covering numerous procedural issues and questions of law and fact." In its reply brief, the government most recently argued that SCI relies too much on industry terms to argue that the steel branch outlets in question are not butt-welded and aren't subject to the antidumping duty order on butt-weld pipe fittings from China (see 2304240058) (Vandewater International v. United States, Fed. Cir. # 23-1093).

The U.S. Court of Appeals for the Federal Circuit again rejected the Coalition of Freight Coupler Producers' bid to redact 180 unique words in its reply brief in an attorney conflict-of-interest suit. Judge Alan Prost said most of the information the coalition is seeking to redact was made publicly available in the Court of International Trade proceeding, and said information relating to the terms of an engagement agreement the coalition sought to redact was "disclosed without objection" in importer Amsted Rail's opening and reply briefs (Amsted Rail Co. v. U.S., Fed. Cir. # 23-1355).

The U.S. Court of Appeals for the Federal Circuit asked the government to respond to a petition for rehearing filed by steel importers led by PrimeSource Building Products on the appellate court's opinion upholding President Donald Trump's expansion of the Section 232 national security tariffs to steel "derivative" products. The court asked the U.S. to file a response on or before June 6. The rehearing motion argued that if the decision stands, the president "will enjoy unbounded legislative power to regulate foreign trade -- to take any action, at any time, targeting any imported product," so long as the commerce secretary makes a threat determination on the targeted product or any material used to make the product (see 2304260033) (PrimeSource Building Products v. U.S., Fed. Cir. # 21-2066).

The Court of International Trade should not have dismissed a case involving Commerce's cash deposit instructions to CBP after the 2019 administrative review of the antidumping duty order on softwood lumber products from Canada for lack of jurisdiction, J.D. Irving said in its May 22 brief at the U.S. Court of Appeals for the Federal Circuit (J.D. Irving Ltd. v. U.S., Fed. Cir. # 2023-1652).