The U.S. Court of Appeals for the Federal Circuit on Aug. 7 held that it's not unreasonable for the Commerce Department to set the all-others rate for non-individually examined respondents in an antidumping proceeding by using only total adverse facts available rates assigned to the mandatory respondents. Judges Alan Lourie and Kara Stoll said there's no burden on Commerce to show that using only AFA is reasonable, finding instead that the burden is on the agency to "justify a departure from the expected method," not to "justify its use." Judge Timothy Dyk filed a partial dissent, finding that just because the use of AFA is "expected" doesn't make it "reasonable." As a result, Dyk said Commerce must show that the sole use of AFA in setting the all-others rate is reasonable.
Court of Federal Appeals Trade activity
The U.S. Court of Appeals for the Federal Circuit gave text-only notice to exporter Canadian Solar that it failed to respond to the court's notice of oral argument in an appeal on the 2017-18 antidumping duty review on solar cells from China. Exporter Risen Energy Co. filed the appeal to claim that the Commerce Department failed to use the best information when setting surrogate values for the company's backsheet and ethyl vinyl acetate inputs (see 2305170049). While Risen waived its right to appear at oral argument (see 2408020019), the court told Canadian Solar that failure to respond to notice of oral argument "may result in dismissal or other action as deemed appropriate by the court" (Risen Energy Co. v. U.S., Fed. Cir. # 23-1550).
The U.S. Court of Appeals for the Federal Circuit on July 31 issued its mandate in an antidumping duty scope case after denying a petition for panel rehearing and rehearing en banc of the court's decision to include dual-stenciled pipe in the scope of the AD order on circular welded carbon steel pipes and tubes from Thailand (see 2407240048). The AD order's scope language includes standard pipe but excluded line pipe, and exporter Saha Thai Steel Pipe Public Co.'s dual-stenciled pipes fit the industry specifications for both line and standard pipe. Two of the three judges deciding the case found that "meeting an additional specification" for line pipe "does not strip away the qualification of these pipes as standard pipes" (see 2405150027) (Saha Thai Steel Pipe Public Co. v. United States, Fed. Cir. # 22-2181).
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The U.S. Court of Appeals for the Federal Circuit's Clerk's Office and Circuit Library will be unavailable Aug. 1 from 1 p.m. to 3:45 p.m. EDT, the court announced. Nonelectric filings can be deposited at the court's night drop box on H Street NW in Washington D.C. Electronic filing remains available.
The U.S. Court of Appeals for the Federal Circuit on July 24 denied exporter Saha Thai Steel Pipe Co.'s petition for panel rehearing and rehearing en banc of the court's decision to include dual-stenciled pipe in the scope of the antidumping duty order on circular welded carbon steel pipes and tubes from Thailand (Saha Thai Steel Pipe Public Co. v. U.S., Fed. Cir. # 22-2181).
Judges Kimberly Moore, Sharon Prost and Richard Taranto on the U.S. Court of Appeals for the Federal Circuit recommended that the court's Judicial Council sanction Judge Pauline Newman from hearing new cases for another year. The three judges previously sanctioned Newman, 97, for one year for refusing to cooperate with an investigation into her fitness to continue serving on the bench (see 2309200024). With the end of the one-year ban looming, the judges asked Newman to show cause why she shouldn't be subject to a renewed sanction. Moore, Prost and Taranto said that Newman hasn't shown any evidence to undermine the vast record "raising serious concerns about Judge Newman’s cognitive state," and she hasn't cooperated with the investigation.
Trade Law Daily is providing readers with the top stories from last week, in case you missed them. All articles can be found by searching on the title or by clicking on the hyperlinked reference number.
The U.S. told the U.S. Court of Appeals for the Federal Circuit on July 19 that importer Nutricia North America's medical foods should be classified as "food preparations" and not "medicaments" (Nutricia North America v. U.S., Fed. Cir. # 24-1436).
On appeal, the U.S. and a petitioner each defended the Court of International Trade’s acceptance of its thrice-remanded (see 2401190037) countervailing duty calculation for Russian phosphate fertilizer exporters (The Mosaic Company v. U.S., Fed. Cir. # 21-00117, -20, -21).