The Court of International Trade ordered an in-person oral argument to take place on Nov. 4 to settle a matter in which the Department of Justice alleged that the plaintiff failed to obtain its consent before filing for a statutory injunction against the liquidation of its entries. In a brief on the injunction motion, DOJ said that counsel for Cheng Shin Rubber -- led by Jeffrey Winton of Winton & Chapman -- completely misrepresented its position, declaring that it had the government's consent for the injunction, when it didn't (see 2110250052).
Court of Federal Appeals Trade activity
The Commerce Department did not reasonably find that Chinese exporter Zhejiang Machinery Import & Export Corp. failed to rebut the presumption of de facto government control, barring the company from receiving a separate antidumping rate, the exporter argued to the U.S. Court of Appeals for the Federal Circuit in its Oct. 26 opening brief. Contesting the Court of International Trade's June ruling upholding Commerce's position that ZMC did not rebut this presumption, ZMC argued that Commerce was unwilling to address arguments presented by it that explained that it wasn't possible for the Chinese government to control ZMC through the labor union that owns most of its shares. This established an "irrebuttable presumption that cannot be rebutted by any factual or legal arguments," contrary to law, the brief said.
The entire U.S. Court of Appeals for the Federal Circuit should hear a case over whether tapered roller bearing importer Wanxiang America Corp. has jurisdiction to challenge guidance issued from the Commerce Department to CBP on the assessment of antidumping duties, the importer argued in an Oct. 18 petition at the Federal Circuit. Arguing that a panel at the appellate court's decision will force importers subject to customs penalty claims into a "Hobbesian choice," that will "eviscerate their right to judicial review," the entire court should reverse the panel's ruling, WAC argued (Wanxiang America Corporation v. United States, Fed. Cir. #20-1044).
The U.S. Court of Appeals for the Federal Circuit issued its mandate on Oct. 14 in a case affirming the Court of International Trade's rejection of excise tax drawback regulations. The Aug. 23 opinion held that CBP cannot limit the amount of drawback that can be claimed on excise taxes, finding that the CBP regulation defied the "clear intent of Congress" (see 2108230036). The decision struck down a 2018 rule that was issued as part of a broader overhaul of drawback regulations following the Trade Facilitation and Trade Enforcement Act of 2015 (The National Association of Manufacturers, et al. v. Department of the Treasury, et al., CIT #19-00053).
The U.S. Court of Appeals for the Federal Circuit issued its mandate Oct. 8 in a case involving the Commerce Department's use of the "Cohen's d test" to discover targeted or masked dumping. The mandate led the Court of International Trade to remand the case to Commerce to bring its final results in an antidumping investigation into welded line pipe from South Korea in line with the Federal Circuit's opinion. The appellate court held that Commerce must further explain its use of this statistical test when using its differential pricing analysis since Commerce may not be adhering to certain assumptions required to perform the Cohen's d test (see 2107150032). A proposed briefing schedule decided by all parties is due by Oct. 28 (Stupp Corporation et al. v. U.S., et al., CAFC # 2020-1857).
The Commerce Department properly hit antidumping respondent Hyundai Electric & Energy Systems Co. with adverse facts available for its failure to produce information on its cost shifting practice, the U.S. Court of Appeals for the Federal Circuit said in an Oct. 4 opinion. Upholding a decision of the Court of International Trade, a three-judge panel at the appellate court agreed that Commerce's decision to cancel verification of Hyundai's information was properly supported.
There will be no full court hearing for a case involving the Commerce Department's use of the "Cohen's d test" to discover targeted or masked dumping, the U.S. Court of Appeals for the Federal Circuit said in an Oct. 1 order. The case, appealed by SeAH Steel Corp., was remanded by the Federal Circuit in July after the appellate court found that Commerce may not be adhering to certain assumptions required to perform the statistical test (see 2107150032) (Stupp Corporation et al. v. U.S., et al., CAFC # 2020-1857).
The Court of Appeals for the Federal Circuit held in an Oct. 4 opinion that the Commerce Department properly applied adverse facts available to Hyundai Electric & Energy Systems in an antidumping review on large power transformers from South Korea. In the review, Hyundai said it shifted costs among LPT projects in the ordinary course of business to show that each project was profitable. Commerce requested information on this cost shifting from Hyundai, who broke down the cost differences by LPT project for reconciliation into six categories. Commerce deemed that Hyundai only gave sufficient information on one of these categories. The Court of International Trade had also found Commerce's resulting application of AFA to be appropriate.
The Commerce Department decided to value a key solar cell input using Bulgarian imports rather than Thai imports after the Court of International Trade said the agency's use of the Thai surrogate data was improper, it told the court in Sept. 27 remand results (Solarworld Americas, Inc. et al. v. United States, CIT Consol. #16-00134).
The U.S. Court of Appeals for the Federal Circuit issued a mandate Sept. 7 in a case in which it dismissed the proceedings due to a lack of jurisdiction. In its July 14 opinion, the Federal Circuit said that the Court of International Trade was correct in dismissing an importer's challenge of CBP's assessment of antidumping and countervailing duties (see 2107140028). The plaintiff, TR International Trading Co., erred when it filed its case under the trade court's Section 1581(i) "residual" jurisdiction, since it could have challenged a denied protest under Section 1581(a) or a scope ruling under Section 1581(c), rendering Section 1581(i) unavailable, the appellate court said. In particular, TRI challenged CBP's finding that the company's citric acid imports from India were of Chinese origin and subject to AD/CV duties (TR International Trading Company, Inc. v. United States, CIT #19-00022). CAFC ordered TRI to pay court costs totaling $28.32 to the U.S. government.