The U.S. Court of Appeals for the Federal Circuit rejected importer China Custom Manufacturing's rehearing bid in an antidumping and countervailing duty scope case. In the decision, Judges Pauline Newman, Raymond Chen and Tiffany Cunningham said CCM's solar panel mounts do not qualify for the "finished merchandise" exclusion from antidumping and countervailing duty orders on aluminum extrusions from China (see 2303020037). In its rehearing motion, CCM said that rehearing was needed to maintain uniformity of the appellate court's prior decisions concerning the "unambiguous plain language" of the finished merchandise exclusion rule. The rehearing bid was referred to the three judges that heard the case, then sent to the remaining active judges on the court (China Custom Manufacturing v. United States, Fed. Cir. #22-1345).
Court of Federal Appeals Trade activity
Judge Timothy Dyk at the U.S. Court of Appeals for the Federal Circuit sharply questioned CBP at oral argument on whether the agency violated importer Royal Brush Manufacturing's due process rights in an Enforce and Protect Act investigation that found that the importer evaded antidumping and countervailing duty orders on pencils from China (Royal Brush Manufacturing v. United States, Fed. Cir. # 22-1226).
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The U.S. Court of Appeals for the Federal Circuit on May 1 upheld the Commerce Department's valuation of an activated carbon input using data from a country different from the primary surrogate country. Judges Todd Hughes, Kara Stoll and Leonard Stark said that just because Commerce departed from what it typically does in preferring to take all the data from the primary surrogate country, this "does not mean that what it did do is unsupported by substantial evidence."
The Court of Appeals for the Federal Circuit upheld the Commerce Department's final results in the 2017-18 administrative review of the antidumping duty order on activated carbon from China. Judges Todd Hughes, Kara Stoll and Leonard Stark ruled that Commerce properly picked Malaysia as the primary surrogate country, valued bituminous coal with a known calorific value using Malaysian Harmonized System subheading 2701.19 and valued bituminous coal with an unknown calorific value using Romanian HS subheading 2701.12. Stark, the author of the opinion, said the appellants, led by Carbon Activated Tianjin Co., failed to exhaust arguments against the valuation of coal tar pitch.
The Commerce Department properly used financial statements from Indian company Sundram as the source of surrogate financial data in the antidumping duty investigation on steel nails from Oman, despite evidence the company received countervailable subsidies, the U.S. told the U.S. Court of Appeals for the Federal Circuit. After Commerce winnowed potential surrogate companies from 11, the two remaining companies -- Hi-Tech Fastener Manufacturer and Sundram -- received subsidies. Since Sundram's data was contemporaneous with the investigation period and Hi-Tech's was not, Commerce legally went with Sundram, the government said in its reply brief (Mid Continent Steel & Wire v. United States, Fed. Cir. # 23-1039).
None of the Court of International Trade's conclusions upholding the use of the Cohen's d test to root out "masked" dumping address the Commerce Department's "core error" of using a 0.8 threshold "when the statistical assumptions of normality, variance, and size have not been proven," thermal paper exporters led by Koehler Paper argued. In a reply brief at the trade court, Koehler said CIT's recent decisions in Stupp Corp. v. U.S. and Marmen v. U.S. "do nothing to mitigate the fundamental flaws" of using the d test (Koehler Paper, et al. v. United States, CIT # 21-00632).
Steel importers led by PrimeSource Building Products petitioned for an en banc rehearing of the U.S. Court of Appeals for the Federal Circuit's decision to uphold President Donald Trump's expansion of the Section 232 national security tariffs on steel and aluminum "derivative" products. The companies said 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," as long as the commerce secretary makes a threat determination on the targeted product or any material used to make that product (PrimeSource Building Products v. U.S., Fed. Cir. #21-2066).
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. Court of Appeals for the Federal Circuit upheld CBP's decision not to grant credit to customs broker license exam test taker Byungmin Chae of Elkhorn, Nebraska, for two questions on the April 2018 exam. Judges Pauline Newman, Sharon Prost and Todd Hughes granted Chae credit for one of three questions he challenged, but that was insufficient to bring him up to the 75% threshold needed to pass the test.