A group of U.S. steel companies, including U.S. Steel Corp., made their case to the U.S. Court of Appeals to the Federal Circuit in a Dec. 8 brief as to why they should be allowed to intervene in multiple cases challenging the Commerce Department's decision to deny an exclusion to Section 232 national security tariffs. The Court of International Trade had denied their right to intervene due to the companies' lack of a legally protectable interest in the cases. The American steel producers countered by arguing that they have a right to intervene based on their participation administratively in the exclusion cases, direct economic stake in the outcome and position as intended beneficiaries of the Section 232 measures (California Steel Industries, Inc. v. United States, Fed. Cir. #21-2172).
Court of Federal Appeals Trade activity
The Court of International Trade upheld the Commerce Department's switch from Thai to Bulgarian surrogate data and Thai to Mexican surrogate data for a key solar cell input in two nearly identical Dec. 8 opinions on two separate antidumping duty reviews. After previously finding that Commerce's reliance on the Thai data was improper, the court had directed Commerce to either switch to another option or further explain its position. The agency reversed course in both cases, finding no objection by any party, including any of the plaintiffs, led by Solarworld Americas, Inc. and Canadian Solar International, respectively.
The U.S. Court of Appeals for the Federal Circuit issued its mandate on Nov. 29 in a case in which it found it lacked jurisdiction over a tapered roller bearing importer's challenge to guidance issued from the Commerce Department to CBP on the assessment of antidumping duties. In the Sept. 2 decision, the appellate court upheld the Court of International Trade decision denying Wanxing America Corporation's bid to challenge the guidance under the trade court's residual jurisdiction, Section 1581(i). The Federal Circuit said the action could've been properly filed under Sections 1581(a) or 1581(c). WAC argued it should have been subject to its parent company's zero percent dumping rate (see 2109020039) (Wanxiang America Corporation v. United States, Fed. Cir. # 20-1044).
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The antidumping and countervailing duties that importer Fedmet Resources now has to pay as a result of a CBP duty evasion ruling amounts to an "embargo" and deprives Fedmet of market access, the importer argued in a Nov. 19 brief at the Court of International Trade. Further, CBP violated Fedmet's due process rights by not even notifying the importer of the existence of the investigation until the interim measures were put in place and not giving it an opportunity to respond to evidence against it, the brief said (Fedmet Resources Corporation v. United States, CIT #21-00248).
The Court of International Trade should sustain the Commerce Department's reversion to its initial decision to adjust a Turkish pipe exporter's post-sale price by only one-third of a late delivery penalty in an antidumping duty investigation, both the plaintiff, Borusan Mannemsann, and the antidumping petitioners said. However, the sides were divided over what to do about Commerce's failure to address Borusan's date of sale, with Borusan simply calling for CIT to sustain the results and the petitioners calling for another remand to address the sale date issue (Borusan Mannesmann Boru Sanayi ve Ticaret A.S. v. U.S., CIT Consol. #19-00056).
The Commerce Department erred in using the Cohen's d test to identify potential masked dumping in an antidumping investigation, Ashley Furniture argued in a Nov. 19 motion for judgment at the Court of International Trade. Tapping a recent Court of Appeals for the Federal Circuit opinion that questioned the validity of the standardized mean difference test, Ashley Furniture argued that Commerce's use of the test in the AD investigation into welded line pipe from South Korea rests on the same faulty assumptions that the Federal Circuit already rejected (Ashley Furniture Industries, LLC, et al. v. United States, CIT #32-00283).
The Department of Justice urged the U.S. Court of Appeals for the Federal Circuit to uphold a lower court ruling denying a group of domestic steel manufacturers the right to intervene in Section 232 exclusion denial cases, in a Nov. 17 brief, arguing that none of the producers has a legally protectable interest in the proceedings. DOJ said that the steel makers' economic interests are insufficient to warrant intervention in the cases since they are "indirect and contingent," seeing as the companies argue that their interest in the exclusions derives from "sales opportunities."
The U.S. Court of Appeals for the Federal Circuit issued a notice of noncompliance Nov. 15 to counsel for the U.S. government in a case involving Section 232 duties. The notice said only one attorney may serve as principal counsel for each party. Two Department of Justice attorneys, Stephen Tosini and Kyle Beckrich, currently are listed in the docket as counsel for the U.S., with both marked to receive notice. Tosini is listed as the lead counsel and Beckrich as the counsel of record. The Federal Circuit said that "a party's failure to timely file a corrected document curing all defects identified on this notice may result in this document being stricken (PrimeSource Building Products, Inc. v. U.S., Fed. Cir. , #21-2066).
The Supreme Court of the U.S. may hear an appeal of the key Transpacific Steel LLC v. United States decision, seeing it as an opportunity to discuss the question of the extent to which Congress delegated tariff powers to the president, Julie Mendoza of Morris Manning, counsel to plaintiff-appellee Borusan Mannesmann, told Trade Law Daily. Having recently petitioned the Supreme Court to take up the case, Mendoza said that having the case sit in front of the nation's highest court will also give her and her team a chance to argue that the most recent decision in the case runs afoul of the intelligible principle standard for delegation of powers to the president as it relates to Section 232.