Court of Federal Appeals Trade activity

CBP's decision not to pay out interest assessed after liquidation, known as delinquency interest, on collected antidumping and countervailing duties violates the plain language of the Continued Dumping and Subsidy Offset Act of 2000, groups of plaintiff-appellants argued in two opening briefs in two different cases at the U.S. Court of Appeals for the Federal Circuit. One brief, penned by appellants led by Hilex Poly Co. and American Drew, said that even if the law was ambiguous, CBP has failed to exercise any authority "in a way that deserves deference" (Hilex Poly Co. v. United States, Fed. Cir. #22-2106) (Adee Honey Farms v. United States, Fed. Cir. #22-2105).

Antidumping petitioner Wheatland Tube fails to distinguish its case from the key Hyundai Steel Co. v. U.S. matter in which the U.S. Court of Appeals for the Federal Circuit found the Commerce Department cannot make a particular market situation adjustment to the sales-below-cost test, exporter Saha Thai Steel Pipe argued in an Oct. 24 reply brief. Urging the Federal Circuit to issue summary affirmance in its case, Saha Thai said the issue "is cut and dry." That the government is no longer defending its position in this case demonstrates how tenuous Wheatland's argument is and the petitioner is pushing a legal theory that Commerce "has abandoned," the appellee said (Saha Thai Steel Pipe v. U.S., Fed. Cir. #22-11175).

The Court of International Trade's March dismissal of a case seeking the collection of over $5.7 million in unpaid duties on passenger vehicle and light truck tires from China was correct because the importer properly revoked its statute of limitations waiver, Katana Racing said in an Oct. 24 brief filed at the U.S. Court of Appeals for the Federal Circuit (United States v. Katana Racing, Fed. Cir. #22-1832).

The U.S. Steel Corp. will appeal a Court of International Trade ruling upholding the Commerce Department's differential pricing analysis in an antidumping duty review, the defendant-intervenor said in an Oct. 25 notice of appeal. The company will take its case to the U.S. Court of Appeals for the Federal Circuit (SeAH Steel Corp. v. United States, CIT Consol. #19-00086).

The Commerce Department dropped its finding that a particular market situation affected inputs to oil country tubular goods from South Korea in remand results submitted on Oct. 24 to the Court of International Trade. Submitting the remand redetermination after a U.S. Court of Appeals for the Federal Circuit ruling, Commerce did say that it still believes imports of low-priced Chinese steel could contribute to the existence of a PMS and that, based on the Federal Circuit's ruling, it could in the future defend a PMS finding solely on this ground. The result of the remand left the dumping margins unchanged (Nexteel Co. v. United States, CIT #18-00083).

The Commerce Department's use of the Cohen's d statistical test to carry out its differential pricing analysis in rooting out "masked" dumping violates "well-recognized statistical principles," plaintiff HiSteel Co. argued in an Oct. 17 motion for judgment at the Court of International Trade. Commerce's assertions that certain statistical assumptions typically required of the d test are not relevant since it using the entire population of data and not just a sample "is mathematically dishonest," the brief said (HiSteel Co. v. United States, CIT #22-00142).

CBP's denial of plaintiff-appellant Borusan Mannesmann's post summary corrections (PSCs) and administrative refund request constitutes a protestable decision, meaning Borusan had jurisdiction to seek Section 232 steel and aluminum tariff exclusions, Borusan and Gulf Coast Express Pipeline argued in an Oct. 17 opening brief at the U.S. Court of Appeals for the Federal Circuit. The appellants also said that Federal Circuit precedent established that CBP's denial of a timely request for a refund of previously paid duties can constitute a protestable decision, and while these precedential opinions do not concern unliquidated entries as is the case with Borusan, there is nothing limiting these decisions (Borusan Mannesmann Boru Sanayi Ticaret v. United States, Fed. Cir. #22-2097).

The U.S. Court of Appeals for the Federal Circuit should not stay a case led by PrimeSource Building Products pending resolution of another action at the appellate court, the U.S. said in an Oct. 17 reply brief, arguing a stay is "based on nothing but pure speculation as to" PrimeSource's desired outcome of the separate matter. The "unjustifiable delay" that would stem from the stay would cause "inherent harm" to the government, so the stay should be denied, the U.S. said (PrimeSource Building Products Inc. v. United States, Fed. Cir. #22-2128).

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The Commerce Department cannot countervail glass purchases since both the Court of International Trade and Commerce have found that glass subsidies are not aluminum extrusions inputs, countervailing duty review respondent Guangzhou Jangho Curtain Wall System Engineering Co. argued in its Oct. 3 opening brief at the U.S. Court of Appeals for the Federal Circuit. Jangho also argued that CIT illegally allowed Commerce to make a post hoc rationalization as a basis for the finding to countervail glass subsidies (Taizhou United Imp. & Exp. Co. v. United States, Fed. Cir. 22-2000).