The entire U.S. Court of Appeals for the Federal Circuit should consider the question of whether the Commerce Department can make a particular market situation adjustment to the sales-below-cost test when calculating normal value in antidumping duty proceedings, defendant-appellant Welspun Tubular said in a Feb. 8 petition for rehearing en banc (Hyundai Steel Company v. United States, Fed. Cir. #21-1748).
Court of Federal Appeals Trade activity
Judges at the U.S. Court of Appeals for the Federal Circuit probed the limits of the president's authority when implementing Section 232 national security tariffs during Feb. 9 oral arguments in a case representing a broad challenge to presidential action under the statute. Questions revolved around what elements, if any, of the process was judicially reviewable, with the plaintiffs, led by USP Holdings, arguing that the report issued by the commerce secretary to the president, which permits the president to impose the tariffs, is a final agency action and thus reviewable under the Administrative Procedure Act (USP Holdings, Inc. v. U.S., Fed. Cir. #21-1726).
The U.S. Court of Appeals for the Federal Circuit issued two mandates dismissing challenges brought by Trans Texas Tire and Zhejiang Jingu Company over a scope ruling in the antidumping duty and countervailing duty investigation into steel trailer wheels from China. In November 2021, the Court of International Trade upheld Commerce's inclusion of steel trailer wheels coated in chrome through a physical vapor deposition process under the ADD/CVD orders on steel trailer wheels while also dropping the retroactive imposition of the duties on subject merchandise (see 2111180043). One case concerns the antidumping duty order and the other is on the countervailing duty order. Jingu moved to dismiss the the appeals on Feb. 7 (Trans Texas Tire LLC v. U.S., Fed. Cir. #22-1395, -1396).
A recent U.S. Court of Appeals for the Federal Circuit decision bolsters the U.S.'s case in a dispute over whether China's provision of electricity qualifies as a countervailable benefit, the Department of Justice said in a Feb. 7 notice of supplemental authority submitted to the Court of International Trade. On Jan. 28, the Federal Circuit said that Commerce can use adverse facts available over the Chinese government's failure to provide information on its price-setting practices in a countervailing duty review concerning its provision of electricity (see 2201280033). In a case brought by Risen Energy Co. related to the subsequent review of the same CVD order on solar cells from China, DOJ told the trade court that the January decision backs its argument (Risen Energy Co., Ltd. v. United States, CIT #20-03912).
There is no exception for business confidential information to the requirement that CBP provide a company subject to an antidumping duty and countervailing duty evasion investigation access to the evidence on which the agency relies, importer Royal Brush told the U.S. Court of Appeals for the Federal Circuit in a Feb. 4 opening brief. CBP's denial of Royal Brush's access to the BCI in the Enforce and Protect Act investigation violated its due process rights and created a "flawed process for adjudicating complaints of duty evasion," the brief said (Royal Brush Manufacturing Inc. v. United States, Fed. Cir. #22-1226).
A U.S. Court of Appeals for the Federal Circuit should reconsider its wrongfully decided opinion finding that the Commerce Department cannot make a particular market situation adjustment to the sales-below-cost test in antidumping duty proceedings, three defendant-appellants told the Federal Circuit in a Feb. 2 brief. Seeking a full court hearing, Atlas Tube, Searing Industries and Nucor Tubular Products said that the decision violates D.C. Circuit precedents over the "operation of ordinary canons of statutory construction in the administrative law context," and the Federal Circuit's precedents over deference afforded to Commerce (Dong-A Steel Company v. United States, Fed. Cir. #21-2153).
Defendant-appellants in a case at the U.S. Court of Appeals for the Federal Circuit over whether the Commerce Department can make a particular market situation adjustment to the sales-below-cost test said that the issue had already been decided by the Federal Circuit in a recent decision. In a letter to the appellate court, the defendant-appellants, Nucor Tubular Products, Atlas Tube and Searing Industries, said that they intend to seek initial en banc reconsideration in light of this opinion or a stay of further proceedings pending full resolution of this separate case (Dong-A Steel Company v. United States, Fed. Cir. #21-2153).
The U.S. Court of Appeals for the Federal Circuit should deny defendant-appellant Wheatland Tube Company's bid to stay proceedings in an antidumping duty case related to use of a particular market situation adjustment to the sales-below-cost test when determining normal value, because the appeals court is unlikely to overturn its own ruling against the judgment in a separate case Wheatland points to as the reason for the stay, plaintiff-appellees Husteel Co. and Hyundai Steel Company said in a Jan. 28 brief (Husteel Co., Ltd. v. United States, Fed. Cir. #22-1300).
The U.S. Court of Appeals for the Federal Circuit should uphold a lower court decision that found that CBP's "indirect method" for weighing importer New Image Global's tobacco wraps that included the weight of additives was legally and scientifically valid, the Department of Justice said in a Jan. 27 brief. Replying to New Image's arguments to the contrary, DOJ said that CBP properly interpreted the excise tax statute to include anything added to the tobacco wraps in the weight of the wraps (New Image Global v. United States, Fed. Cir. #19-2444).
The Commerce Department can use adverse facts available over the Chinese government's failure to provide information on its electricity price-setting practices in a countervailing duty review, the U.S. Court of Appeals for the Federal Circuit said in a Jan. 28 opinion. Upholding a decision from the Court of International Trade, the Federal Circuit affirmed Commerce's CV duties for the provision of electricity for less than adequate remuneration (LTAR) after the Chinese government failed to explain price variations across different provinces.