Court of Federal Appeals Trade activity

U.S. steel company Nucor Corporation will appeal to the U.S. Court of Appeals for the Federal Circuit a January Court of International Trade decision that held that no benefit was conferred on South Korean steel companies through the provision of electricity, according to the March 22 notice of appeal. The case has previously been to the Federal Circuit, where the appellate court remanded it for unlawfully relying on price discrimination instead of a thorough fair-market principles evaluation (see 2202020035). The trade court said that the Commerce Department has now addressed the Federal Circuit's concerns (POSCO v. United States, CIT #16-00225).

The U.S. Court of Appeals for the Federal Circuit issued its mandate following an opinion allowing the Commerce Department to use adverse facts available due to the Chinese government's failure to provide information on its electricity price-setting practices, in a countervailing duty review. In the January opinion, the appellate court affirmed Commerce's CV duties for the provision of electricity below cost after the Chinese government failed to explain price variations across different provinces (see 2201280033). The March 21 mandate affirms Commerce's results in the administrative review of the CVD order on solar cells from China (Canadian Solar v. United States, Fed. Cir. 21-1434).

The Commerce Department ignored the Court of International Trade's and U.S. Court of Appeals for the Federal Circuit's instructions when it continued to rely on the "likely selling price" of non-prime goods to set rates in an antidumping duty case, exporter AG der Dillinger Huttenwerke said in a March 15 brief responding to Commerce's remand results. Dillinger says the agency continued to use facts otherwise available even after the trade court ruled it unsupported, arguing Commerce must instead use the company's actual data (AG der Dillinger Huttenwerke v. United States, CIT Consol. #17-00158).

The U.S. Court of Appeals for the Federal Circuit denied on March 16 U.S. pipe maker Welspun Tubular's motion for rehearing 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 an antidumping duty proceeding. The appellate court issued a two-page order denying the en banc rehearing motion without a further explanation (Hyundai Steel Company v. United States, Fed. Cir. #21-1748).

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The U.S. Court of Appeals for the Federal Circuit should affirm the Commerce Department's finding that Al Ghurair Iron & Steel circumvented the antidumping and countervailing duties on corrosion-resistant steel (CORE) products from China by way of transshipment via the United Arab Emirates, defendant-appellee Steel Dynamics said March 14 in a reply brief filed with the appeals court. The UAE company's processing was minor or insignificant, marked by a low level of investment in the UAE, Steel Dynamics said (Al Ghurair Iron & Steel v. United States, Fed. Cir. #22-1199).

The Commerce Department's rejection of three U.S. chloropicrin producers' filing in an antidumping duty sunset review -- which resulted in the revocation of the nearly 40-year-old order on chloropicrin from China -- was a "marked abuse of discretion" given that the producers' lawyer was impaired with "medical and technical issues," plaintiff-appellants, led by Trinity Manufacturing, said in a March 14 opening brief at the U.S. Court of Appeals for the Federal Circuit (Trinity Manufacturing v. United States, Fed. Cir. #22-1329).

Exporter China Customs Manufacturing's solar panel mount assemblies are "fully and completely assembled" at the time they're imported, thus qualifying for a finished merchandise exclusion from the antidumping duty and countervailing duty orders on aluminum extrusions from China, CCM argued. Filing its opening brief at the U.S. Court of Appeals for the Federal Circuit on March 8, CCM, along with Greentec Engineering, argued that the record shows that the solar panel mount assemblies satisfy each of the requirements for the exclusion, including being fully assembled at the time of entry (China Custom Manufacturing v. United States, Fed. Cir. #22-1345).

The Uruguay Round Agreements Act taken as a whole authorizes expedited countervailing duty reviews, the governments of Quebec and New Brunswick along with six Canadian companies argued in a March 8 reply brief at the U.S. Court of Appeals for the Federal Circuit. When taking into account the context of the URAA, its legislative history and the legislative process through which the URAA was adopted, it's clear that Congress meant to establish an expedited review process, the Canadian parties argued.

The Court of International Trade erred when it found that importer Strategic Import Supply's protests were untimely filed, the tire importer said in its March 4 opening argument at the U.S. Court of Appeals for the Federal Circuit. In fact, SIS should not have had to file the protest in the first place, since the U.S. should have provided the necessary refunds for overpaid countervailing duties without any other filings from SIS, the company said. The result of the trade court's ruling is a practice both "nonsensical" and unsupported by the statute's language (Acquisition 362, LLC dba Strategic Import Supply v. United States, Fed. Cir. #22-1161).