Importer Meyer Corporation filed a corrected reply brief in a key case over the use of "first sale" valuation on goods from China after its initial brief was found to not be in compliance with the U.S.Court of Appeals for the Federal Circuit's rules. The Federal Circuit said that the contact information for Meyer's lawyers didn't match the information on the individuals' entries of appearance on the docket (see 2201240043). Meyer's lead counsel is John Peterson of Neville Peterson. Meyer's resubmission purportedly fixes this error. The brief came in Meyer's appeal based on a Court of International Trade ruling that held that first sale treatment may not be applicable to non-market economy exports (see 2201190059). Meyer argued in the brief that CIT improperly applied the "dual burden of proof" when it denied the importer first sale valuation on its cookware from China (Meyer Corporation v. United States, Fed. Cir. #21-1932).
Court of Federal Appeals Trade activity
The Commerce Department can use adverse facts available in a countervailing duty review due to the Chinese government's failure provide information about how electricity processes and costs vary among its provinces, the Court of Appeals for the Federal Circuit said in a Jan. 28 opinion. The opinion, which upheld a Court of International Trade ruling, concerns the fourth administrative review of the CVD order on solar cells from China, in which Commerce identified electricity price variations across different provinces, resulting in a finding of the provision of electricity for less than adequate remuneration.
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The U.S. Court of Appeals for the Federal Circuit found that Meyer Corp.'s reply brief in a case over the use of first sale valuation on goods from China was not in compliance with court rules. According to the Jan. 24 notice of non-compliance, the contact information for Meyer's lawyers didn't match the information on the individuals' entries of appearance on the docket. The attorneys have five business days to correct the mistake, the court said. The reply brief came in Meyer's appeal based on a Court of International Trade ruling that held that first sale treatment may not be applicable to non-market economy exports (see 2201190059). Meyer argued that CIT improperly applied the "dual burden of proof" when it denied the importer first sale valuation on its cookware from China (Meyer Corporation v. United States, Fed. Cir. #21-1932).
The Court of International Trade in a Jan. 21 order denied California Steel Industries' and Welspun Tubular's bid for a stay in a case over the Commerce Department's final results in the third administrative review of the antidumping duty order on welded line pipe from South Korea. CSI and Welspun wanted a stay while the U.S. Court of Appeals for the Federal Circuit mulls whether Commerce can make a particular market situation adjustment to the cost of production in the sales-below-cost test. CIT said CAFC already ruled against the practice, so the trade court can't be certain that granting the stay would "serve any purpose other than" to just delay resolution of the case.
Just because Section 232 tariffs are placed in Chapter 99 of the Harmonized Tariff Schedule, this doesn't make them remedial tariffs, the Department of Justice told the U.S. Court of Appeals for the Federal Circuit in a Jan. 14 brief. The tariffs also aren't temporary, don't count as a double remedy and can be deducted from an antidumping duty respondent's export price, the brief said (Borusan Mannesman Boru Sanayi ve Ticaret v. U.S., Fed. Cir. #21-2097).
The Court of International Trade improperly applied the "dual burden of proof" when it denied Meyer Corp. "first sale" valuation on its imports of cookware, Meyer told the U.S. Court of Appeals for the Federal Circuit in a Jan. 10 reply brief. The dual burden of proof practice was previously eliminated, so CIT improperly applied this standard when it denied Meyer first sale but sustained CBP's valuation of the imports based on their second sale rate, Meyer said (Meyer Corporation v. United States, Fed. Cir. #21-1932). "Despite its prodigious length (120 pages), the CIT's opinion consists mainly of a recitation of the parties' proposed post-trial findings and contains very little by way of legal analysis," the company said.
The U.S. Court of Appeals for the Federal Circuit will conduct all scheduled arguments for the February 2022 session by videoconference, the court said in a Jan. 18 notice. However, only arguing counsel will have access to the video call, while the general public may only livestream the argument's audio. No motions for access beyond arguing counsel will be entertained, the court said.
PrimeSource Building Products distinguished a recent U.S. Court of Appeals for the Federal Circuit decision affirming the Commerce Department's ability to use adverse facts available in its separate rate calculation from its case at issue at the Court of International Trade. Submitting a notice of supplemental authority to rival the one submitted by the antidumping petitioner, PrimeSource said that the recent Federal Circuit opinion in Bosun Tools v. U.S. is not applicable to its case since the appellate court noted an increasing trend in past rates calculated for one of the separate rate respondents that justified the use of AFA. No such trend exists in PrimeSource's case, the brief said.
The U.S. Court of Appeals for the Federal Circuit dismissed an appeal from the Government of Argentina and Argentine biodiesel company LDC Argentina over the Commerce Department's changed circumstances review of countervailing duties on biodiesel from Argentina. The two had appealed a Court of International Trade decision affirming Commerce's determination that the situation had not changed regarding countervailable subsides from Argentina's biodiesel industry. The trade court also upheld Commerce's decision to originally find changed circumstances but later switch back to a finding of no changed circumstances (see 2109210046) (Government of Argentina v. United States, Fed. Cir. #22-1190).