The U.S. Court of Appeals for the Federal Circuit issued its mandate in an antidumping duty case after ruling that the Commerce Department can calculate the separate rate respondent's dumping margin by averaging an adverse facts available rate and a de minimis rate. The case concerns the seventh administrative review of the ADD order on diamond sawblades from China. In the review, Commerce tapped Jiangsu Fengtai Single Entity and Chengdu Huifeng New Material as the mandatory respondents, handing them an AFA China-wide 82.05% rate and zero percent rate, respectively, then assigned an average of those two rates to the separate rate respondents (Bosun Tools Co. v. U.S., Fed. Cir. #21-1929, -1930).
Court of Federal Appeals Trade activity
The U.S. Court of Appeals for the Federal Circuit found a lawyer's appearance entry submission to not be in compliance with court rules. The court said that the entry for Willis Martyn, counsel for the U.S. in a case over the president's decision to revoke a tariff exclusion for bifacial solar panels, was not in compliance since he had not registered for an electronic filer account with the court's filing system. Martyn's contact information on the entry form also didn't match the information associated with his account (Solar Energy Industries Association v. U.S., Fed. Cir. #22-1392). In November 2021, the Court of International Trade struck down the tariff exclusion revocation, holding that the law permits only trade liberalizing alterations to the existing safeguard measures (see 2111160032).
Steel giant U.S. Steel argued that it should be able to file an amicus brief at the U.S. Court of Appeals for the Federal Circuit to support antidumping duty petitioner Welspun Tubular in the company's bid to get a full court rehearing on a key AD question. The rehearing request concerns whether the Commerce Department can make a particular market situation adjustment to the sales-below-cost test. U.S. Steel says it can address the importance of PMS provisions in proceedings involving products not made by Welspun (Hyundai Steel Company v. United States, Fed. Cir. #21-1748).
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The U.S. Court of Appeals for the Federal Circuit revised its Internal Operating Procedures Feb. 18, changing several of its rules. Alterations were made to its procedures for merits panels, briefs and hearings in cases using protective orders, panel conferences, the disposition of cases and en banc hearings and rehearings. For en banc rehearings, the court laid out the steps to be taken under which the rehearing poll is withdrawn. A poll is typically issued to the active judges for them to vote on whether a case should be given a full court hearing or rehearing. The Federal Circuit also updated its procedures for precedential and non-precedential opinions. Now, instead of sending non-precedential opinions to the administrative services office for copying and delivering to the clerk, the opinions will be sent directly to the Clerk's Office for issuance. For precedential opinions, the judges who wrote the decision will now circulate any and all opinions to the full court as opposed to each judge. If the panel of a case wants to make "major substantive changes" to an opinion in circulation, "it shall withdraw the opinion from circulation and recirculate the altered opinion to the full court for a new 10-day circulation period," the CAFC said.
Tobacco wraps importer New Image Global argued at the U.S. Court of Appeals for the Federal Circuit that the Court of International Trade should not have allowed the results of a flawed customs test into evidence. The importer is fighting for a lower excise tax on its tobacco wraps, which were classified by the government as roll-your-own tobacco, subjecting them to the excise tax. The wraps are made with ethanol, which "gasses off" when the package is opened and the wrap is exposed to air. New Image has argued that this process will shed between 10% and 13% of the wraps' weight by the time they reach the final consumer and notes that "any lab test that finds that sealed wraps gain weight in storage and transit from the Mexican factory to the United States is inherently unreliable" (New Image Global v. United States, Fed. Cir. #19-2444).
The U.S. Court of Appeals for the Federal Circuit dismissed an antidumping case brought by Vietnamese exporter Godaco Seafood Joint Stock Co. following the company's motion to voluntarily dismiss the case. Godaco was appealing a Court of International Trade decision affirming the Commerce Department's results of the 2015-16 administrative review of the antidumping duty order on fish fillets from Vietnam, in which the court initially rejected the agency's separate rate calculation. Commerce originally calculated the separate rate by averaging the separate rates from the previous four administrative reviews. The court then upheld the calculation after the agency based the separate rate on more contemporaneous data (see 2109270035). No reason was given for the requested dismissal (Godaco Seafood Joint Stock Company v. U.S., Fed. Cir. #22-1202).
The Commerce Department reversed its decision to collapse two mandatory respondents and one of their affiliates in an antidumping duty investigation. In a bid to bring its stance in line with the U.S. Court of Appeals for the Federal Circuit, Commerce said in Feb. 14 remand results submitted to the Court of International Trade that evidence to collapse all three entities was insufficient, particularly because evidence from the two mandatory respondents didn't show any common ownership. The agency also reinstated its use of adverse facts available over one of the respondents' reporting of its products' yield strength (Prosperity Tieh Enterprise Co., Ltd. v. United States, CIT #16-00138).
The U.S. Court of Appeals for the Federal Circuit should not grant a stay of proceedings in a lawsuit challenging the Commerce Department's particular market situation in an antidumping duty sales-below-cost test because the defendants seeking the stay haven't shown they're likely to succeed in the case, plaintiff-appellees Dong-A Steel Co. and Kukje Steel Co. said in a Feb. 14 brief. A trio of defendant-appellants -- Atlas Tube, Searing Industries and Nucor Tubular Products -- had requested a stay while the Federal Circuit wraps up another case wherein Welspun Tubular requested a full court rehearing over an identical question, but the Federal Circuit is unlikely to grant the rehearing or overturn its earlier decision, Dong-A and Kukje said (Dong-A Steel Company v. United States, Fed. Cir. #21-2153).
The U.S. Court of Appeals for the Federal Circuit found that the entry of appearance for plaintiff-appellee PT. Kenertec Power System's counsel was not in compliance with the court's rules. In particular, the court said that the contact information for Daniel Robert Wilson and Kang Woo Lee of Arnold & Porter "does not match the information associated with the user's account." Up-to-date contact information is needed for the two attorneys, the court said. The case is an appeal by the Wind Tower Trade Coalition over a Court of International Trade decision that sustained the Commerce Department's decision to ultimately find no countervailable subsidization in a countervailing duty investigation of utility scale wind towers from Indonesia (PT. Kenertec Power System v. U.S., Fed. Cir. #22-1408).