Federal Circuit judges cautioned counsel for importer Katana Racing against arguing whether the U.S. actually stated a claim for which relief can be granted, despite the fact that the Court of International Trade dismissed the case due to an expired statute of limitations. During the June 7 oral argument in the customs penalty suit, Judge Alvin Schall pointed out that the CIT judge did not decide the failure to state a claim issue, while Judge Todd Hughes said he thought it was "very unwise" to make this claim, seeing as argument over the issue would be precluded at the trade court if the appellate court were to rule on it (U.S. v. Katana Racing, Fed. Cir. # 22-1832).
Court of Federal Appeals Trade activity
The U.S. Court of Appeals for the Federal Circuit issued its mandate granting exporter Deacero S.A.P.I.'s move to dismiss its appeal challenging the administrative review of the antidumping duty order on rebar products from Mexico. Both the U.S. and petitioner Rebar Trade Action Coalition consented to the motion. Deacero launched the suit to challenge the Commerce Department's treatment of Section 232 duties paid by Deacero as U.S. import duties, deducting them from the company's U.S. price in the dumping calculation (Deacero S.A.P.I. de C.V. v. United States, Fed. Cir. # 22-1486).
The Court of International Trade improperly upheld CBP's incorrect classification of conduit tubing imported from Mexico as steel tubing instead of insulated fittings, Shamrock Building Materials said in its June 5 opening brief at the U.S. Court of Appeals for the Federal Circuit (Shamrock Building Materials v. U.S., Fed. Cir. # 23-1648)
The Judicial Council of the Federal Circuit voted to exclude Judge Pauline Newman from being assigned new cases amid a probe into her fitness to continue serving as a judge on the influential patent and trade court. The council said that Newman's backlog of opinions and significant delays in issuing opinions when they do come out warrants precluding the 95-year-old judge from presiding over any more cases.
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The U.S. Court of Appeals for the Federal Circuit, during June 6 oral arguments, questioned countervailing duty petitioner Nucor Corp.'s claims against the Commerce Department's finding that the South Korean government did not provide a countervailable subsidy via its provision of electricity in the CVD investigation on carbon and alloy steel cut-to-length plate from South Korea. Responding to Nucor's argument that Commerce should have found the actual cost of electricity sold to the CVD respondents, Judge Raymond Chen said this "seems so unrealistically granular it doesn't make any sense" (POSCO v. United States, Fed. Cir. # 22-1525).
The U.S. Court of Appeals for the Federal Circuit issued its mandate in two cases -- one on a Chinese exporter's failure to rebut the presumption of government control in an antidumping case and the other on the Commerce Department's anti-circumvention inquiry against exporter Al Ghurair Iron & Steel. In the AD case, the appellate court said respondent Zhejiang Machinery Import & Export Co. failed to rebut the presumption of Chinese government control in the AD administrative review on tapered roller bearings from China since its majority shareholder is a state-owned labor union (see 2304140025). In the anti-circumvention case, the Federal Circuit said Commerce properly supported its decision that AGIS' goods from the United Arab Emirates circumvented AD/CVD on corrosion-resistant steel products from China by using evidence of patterns of trade, level of investment, nature of the production process in the UAE and the extent of production factilities (see 2304120037) (Zhejiang Machinery Import & Export Corp. v. U.S., Fed. Cir. # 21-2257 )(Al Ghurair Iron & Steel v. United States, Fed. Cir. # 22-1199).
The judicial and administrative decisions cited by U.S. and antidumping petitioner Mid Continent Steel & Wire to defend the Commerce Department's use of adverse facts available against exporter Unicatch Industrial Co. do not apply to Unicatch's court challenge, Unicatch said in a reply brief at the U.S. Court of Appeals for the Federal Circuit. Commerce relied on AFA against Unicatch for failing to submit a complete cost reconciliation in the form requested by the agency, hitting the exporter with a 78.17% dumping rate (Pro-Team Coil Nail Enterprise v. United States, Fed. Cir. # 22-2241).
The U.S. Court of Appeals for the Federal Circuit should disregard the government's procedural arguments in a case on whether Vandewater International's steel branch outlets fall within the scope of the antidumping duty order on butt-weld pipe fittings from China, importer Smith-Cooper International (SCI) argued in a reply brief (Vandewater International v. United States, Fed. Cir. # 23-1093).
Solar cell exporters JA Solar Technology Yangzhou Co., Shanghai JA Solar Technology Co. and JingAo Solar Co. objected to the U.S. Court of Appeals for the Federal Circuit's order saying that it will reform the caption to designate the companies as appellees. JA Solar instead asked to remain a plaintiff since it supports appellant Risen Energy even though it did not itself file a notice of appeal. "Second, JA Solar will not be filing or joining any brief in this proceeding, nor does it intend to participate in oral argument," the brief said. The suit is challenging the Commerce Department's surrogate values for silver paste and use partial neutral facts available in the 2017-18 administrative review of the antidumping duty order on solar cells from China (see 2301050026) (Risen Energy Co. v. U.S., Fed. Cir. # 23-1550).