The U.S. plans to file a petition for panel rehearing or rehearing en banc at the U.S. Court of Appeals for the Federal Circuit of an opinion finding that the Commerce Department cannot select just one mandatory respondent in an antidumping duty review where multiple exporters have requested a review. The Federal Circuit granted an order on Oct. 5 giving the government 60 more days to file the rehearing motion. In the case, originally brought by YC Rubber Co., the Federal Circuit said that Commerce's interpretation of the statute finding that it can use only one respondent cuts against the statute's unambiguous language (see 2208290026). The judges ruled the agency has not shown it to be otherwise reasonable to calculate the all-others rate based on only one respondent and said the directive to find a weighted average gives no reason why it's reasonable to use only a single rate (YC Rubber Co. (North America) v. United States, Fed. Cir. 21-1489).
Court of Federal Appeals Trade activity
The U.S. Court of Appeals for the Federal Circuit in an Oct. 3 order gave the U.S. an additional 4,000 words for its reply brief in a spat over whether the president can revoke a safeguard exemption granted for bifacial solar panels. The government originally sought to double its word count to 14,000, though the appellees in the matter, led by the Solar Energy Industries Association, proposed to limit the bid to 11,000 (see 2209190057). Judge Jimmie Reyna sided with the appellees (Solar Energy Industries Association v. United States, Fed. Cir. #22-1392).
The Court of International Trade erroneously upheld the Commerce Department's finding that an Australian exporter did not reimburse an affiliated importer for antidumping duties paid and subsequent decision not to deduct the amount of the duties from the exporter's U.S. price, United States Steel Corp. argued in a Sept. 30 opening brief at the U.S. Court of Appeals for the Federal Circuit (United States Steel Corp. v. United States, Fed. Cir. #22-2078).
The U.S. Court of Appeals for the Federal Circuit issued its mandate Oct. 3 in a case on whether the Commerce Department can make a particular market situation adjustment to the sales-below-cost test when calculating normal value. In the Federal Circuit's August opinion, the appeals court cited its previous rejection of the appellants' claims in the Hyundai Steel v. U.S. case. In the present action, the appellants, led by American Cast Iron Pipe, sought to differentiate its case from Hyundai Steel by arguing they are appealing an original investigation while the Hyundai Steel action challenged an administrative review. The Federal Circuit said this does not result in a different outcome (see 2208260040) (Borusan Mannesmann Boru Sanayi ve Ticaret v. U.S., Fed. Cir. #22-1502).
The Court of International Trade should reconsider its decision upholding the Commerce Department's differential pricing analysis in an antidumping duty review given the U.S. Court of Appeals for the Federal Circuit's decision calling the use of a statistical test underpinning the analysis into question, plaintiff SeAH Steel Corp. argued in a Sept. 26 motion. SeAH said the opinion also should be revisited over its move to uphold Commerce's inclusion of SeAH's inventory valuation losses as general and administrative (G&A) expenses (SeAH Steel Corp. v. United States, CIT Consol. #19-00086).
The Commerce Department must provide further explanation for, and if needed, reconsider its finding as to whether the "likely selling price" of non-prime plate set in antidumping respondent AG der Dillinger Huttenwerke's books is the best available information for evaluating the cost of production, the Court of International Trade ruled in a Sept. 23 opinion. Given the U.S. Court of Appeals for the Federal Circuit's opinion in a "parallel matter" instructing Commerce to find the actual cost of production for prime and non-prime cut-to-length plate, Judge Leo Gordon sent back Commerce's reliance on Dillinger's "likely selling price" of non-prime plate.
The U.S. Court of Appeals for the Federal Circuit issued its mandate on Sept. 23 in a case brought by Vicentin on the antidumping duty investigation on biodiesel from Argentina. In the opinion, the Federal Circuit held that tradeable tax credits fall within the regulatory definition of a "price adjustment," meaning the Commerce Department properly deducted the credits from respondent LDC Argentina's export price (see 2208020052). The court said that the agency's use of an international market price for soybeans in its constructed value calculation for biodiesel does not count as a double remedy, even though the U.S. imposed countervailing duties on Argentine soybeans (Vicentin v. United States, Fed. Cir. #21-1988).
The U.S. Court of Appeals for the Federal Circuit in a Sept. 23 opinion held that the Commerce Department properly used total adverse facts available over antidumping respondent Shanxi Pioneer Hardware Industrial's failure to report all its factors of production data on a control number-specific basis. Judges Kimberly Moore, Pauline Newman and Kara Stoll ruled 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.
Challenges to several Commerce Department actions around the antidumping duty investigation on tomatoes from Mexico, and subsequent suspension agreements, have already been ruled on at the U.S. Court of Appeals for the Federal Circuit and should be denied, the government argued in a Sept. 20 motion to dismiss aspects of several complaints from Bioparques, a Mexican agriculture company. The Florida Tomato Exchange, a defendant-intervenor, made a supplementary motion to dismiss on Sept. 21 (Bioparques et al v. U.S., CIT # 19-00204).
The U.S. Court of Appeals for the Federal Circuit issued its mandate Sept. 19 in a case involving an administrative review of the antidumping duty order on large power transformers from South Korea. The court ruled that minor issues in reporting home market sales don't rise to the level that justifies the use of an adverse facts available margin, nor does the respondent's purported lack of cooperation in a previous year's review (see 2208110069) (Hyundai Electric & Energy Systems v. U.S., Fed. Cir. #21-2312).