The U.S. Court of Appeals for the Federal Circuit issued its mandate on June 28 in a countervailing duty case over Indian exporter Uttam Galva's failure to report an affiliated cross-owned company. In a May opinion, the Federal Circuit said that the Commerce Department properly used adverse facts available, resulting in a 588.43% CVD rate, over the failure to report the affiliate in the CVD review on corrosion-resistant steel products from India. The court said the exporter didn't show that the affiliated company's financial statement could rebut the inclusion of 20 subsidy programs supposedly given to it, permitting the subsidies' inclusion in Uttam Galva's rate (Uttam Galva Steels Limited v. United States, Fed. Cir. #21-2119).
Court of Federal Appeals Trade activity
Importer Prime Time Commerce failed to exhaust its administrative remedies for its argument that the Commerce Department should look to confidential information to provide "gap-filling" data needed to calculate a rate separate from the China-wide dumping margin for the importer, the U.S. Court of Appeals for the Federal Circuit said in a June 28 opinion. Sustaining the Court of International Trade, Judges Alan Lourie, Haldane Mayer and Tiffany Cunningham also ruled that while CIT and Commerce erred in not accepting Prime Time's submissions since it is an "interested party," the error was a harmless one.
The Court of Appeals for the Federal Circuit in a June 28 opinion upheld the Court of International Trade's ruling in a case on the 2015-16 administrative review of the antidumping duty order on cased pencils from China. Importer Prime Time Commerce had argued that Commerce should look to confidential information to provide "gap-filling" data needed to calculate a rate separate from the China-wide dumping margin. The court upheld that Prime Time Commerce failed to exhaust its administrative remedies during the remand period at the trade court. The appellate court ruled that while the trade court erred by finding that Commerce could not accept Prime Time's submissions as an "interested party," the error was a harmless one and does not require a remand.
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 issued its mandate June 16 in two cases contesting whether the Commerce Department properly modified the scope of its antidumping and countervailing duty investigations on quartz surface products from China in response to evasion. Building materials company Bruskin International argued that Commerce was wrong to accept the petitioner's scope request, claiming that the agency should have treated it as a request to amend the petition. In the opinion, the appellate court held that the agency is not bound to the preliminary scope and that it had properly changed the scope under its own authority and not per the petitioner's request (see 2204250029) (M S International, et al. v. U.S., Fed. Cir. #21-1679, -1680).
By saying that membership in a Chinese labor union by some of the ownership of an antidumping duty respondent precludes it from proving the absence of de facto Chinese government control, the Commerce Department "radically" changed its separate rate analysis, exporter Zhejiang Machinery Import & Export Corp. (ZMC) said in a June 14 reply brief. Arguing to the U.S. Court of Appeals for the Federal Circuit, ZMC said that the Commerce's new concept of potential government control created by this standard is "too abstract to be lawful" (Zhejiang Machinery Import & Export v. U.S., Fed. Cir. #21-2257).
The Commerce Department properly found that Shelter Forest International Acquisition's hardwood plywood exports didn't circumvent the antidumping and countervailing duty orders on hardwood plywood from China, the U.S. Court of Appeals for the Federal Circuit said in a June 15 opinion. Affirming the Court of International Trade's opinion, the Federal Circuit said that the merchandise was commercially available before Dec. 8, 2016, and was thus not later-developed merchandise that circumvented the AD/CVD orders.
The U.S. Court of Appeals for the Federal Circuit issued revised protocols for in-person oral arguments beginning with the July court sitting and until further notice. The new rules "clarify and expand the testing or medical documentation available" to arguing counsel allowing them to enter the court.
The Court of Appeals for the Federal Circuit in a June 15 opinion affirmed the Court of International Trade's ruling in an anti-circumvention inquiry on hardwood plywood from China. The trade court sustained the Commerce Department's ruling that certain hardwood plywood was commercially available before Dec. 8, 2016, and did not constitute later-developed merchandise that circumvented the antidumping and countervailing duty orders. The appellate court ruled this decision was properly made and said the record reflects the availability of the merchandise before the orders.
The U.S. Court of Appeals for the Federal Circuit issued its mandate on June 13 in an antidumping case over the Commerce Department's differential pricing analysis. In the case's opinion, the Federal Circuit said that Commerce must reconsider its decision to use a simple average to calculate the pooled standard deviation when using the Cohen's d test in the DPA to target "masked dumping" (see 2204210031). Ruling that Commerce strayed from the statistical literature without a proper explanation, Judges Pauline Newman, Alan Lourie and Richard Taranto said the agency should reconsider whether a weighted average for calculating the Cohen's d denominator is more appropriate (Mid Continent Steel & Wire v. United States, Fed. Cir. #21-1747).