Court of Federal Appeals Trade activity

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.

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).

The Commerce Department stuck by its use of a simple average in the denominatory calculation of the Cohen's d coefficient -- a part of the test to root out "masked" dumping -- in Nov. 10 remand results submitted to the Court of International Trade. Responding to an order from the U.S. Court of Appeals for the Federal Circuit telling the agency to justify its departure from the academic literature about how to calculate the Cohen's d denominator, Commerce said that the literature actually supports the use of a simple average when sampling is not used (Mid Continent Steel & Wire v. United States, CIT Consol. #15-00213).

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).

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.

Chief Judge Kimberly Moore at the U.S. Court of Appeals for the Federal Circuit, during Nov. 3 oral argument, questioned plaintiff-appellant M S International's (MSI's) position that the Commerce Department failed to include quartz surface product (QSP) fabricators as part of the domestic industry for quartz surface products when initiating the antidumping and countervailing duty investigations on QSPs from India (Pokarna Engineered Stone Limited v. United States, Fed. Cir. #22-1077).

The U.S. Court of Appeals for the Federal Circuit in a Nov. 2 oral argument questioned importer Acquisition 362, doing business as Strategic Import Supply, over its jurisdictional grounds to challenge a CBP decision, given that the company failed to file a protest. SIS argued that it didn't need to file a protest to challenge the liquidation of its entries, given that there was nothing to protest within 180 days of liquidation. At oral argument, Judges Timothy Dyk, Richard Taranto and Todd Hughes probed this position, with Hughes in particular expressing doubt over the claim, given the finality surrounding CBP's liquidation of imports (Acquisition 362 v. United States, Fed. Cir. #22-1161).

The U.S. Court of Appeals for the Federal Circuit in a Nov. 2 order deactivated U.S. Steel Corp.'s recently filed appeal over the 2016-17 administrative review of the antidumping duty order on oil country tubular goods from South Korea. U.S. Steel filed the appeal amid a spat over a motion from plaintiff SeAH Steel Corp. to reconsider the court's opinion. Per Federal Rule of Appellate Procedure 4(a)(4), the time to file an appeal runs from the order disposing of the last remaining motion seeking to alter or amend the judgment (SeAH Steel Corp. v. United States, Fed. Cir. #23-1109).

The U.S. Court of Appeals for the Federal Circuit in an Oct. 28 order consolidated two appeals of a lower court opinion dismissing importer Dr. Bronner's complaint for lack of subject-matter jurisdiction over xanthan gum imports, dismissing GLoB Energy Corp.'s complaint for lack of subject-matter jurisdiction and denying the remaining motions for judgment on the agency record. One case was appealed from the Court of International Trade by Ascencion Chemicals, UMD Solutions and Crude Chem Technology, while the other was brought by GLoB (All God One Faith, dba Dr. Bronner's Magic Soaps v. United States, Fed. Cir. #23-1078).