The Court of Appeals for the Federal Circuit on Jan. 10 upheld the Commerce Department's rates for the separate rate respondents in an antidumping review on diamond sawblades from China. In the review, Commerce calculated the rate by averaging the adverse facts available and zero percent rates of the two respondents. Affirming the Court of International Trade's decision, the Federal Circuit said this move was valid since Commerce was authorized by the statute to rely on AFA in finding the separate rate and that the rate was supported by evidence that the separate rates all trended upwards over the past administrative reviews.
The U.S. Court of Appeals for the Federal Circuit found the Department of Justice's opening brief in the PrimeSource appeal to not be in compliance with court rules. In the Jan. 6 notice of non-compliance, the appellate court said that the caption provided on the document doesn't follow the official caption provided by the clerk. DOJ has five business days to fix the filing. The high-profile case concerns the president's ability to expand Section 232 national security tariffs to goods beyond those specified in the Commerce secretary's report to the president at a time that is beyond procedural deadlines. In the brief, DOJ argued that the statutes allows for such a move, in line with the Federal Circuit's opinion in a recent ruling on Section 232 (see 2201040024) (PrimeSource Building Products Inc. v. U.S., Fed. Cir. #21-2066).
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Section 232 allows the president to expand tariff action beyond procedural time limits laid out in the law, as he did when he expanded the tariffs to cover steel and aluminum derivatives over a year after the tariffs were initially imposed, the Department of Justice told the U.S. Court of Appeals for the Federal Circuit in its Jan. 3 brief. Relying heavily on a recent CAFC opinion on an increase of tariffs on Turkish steel, DOJ said the president is allowed to expand Section 232 tariffs to products beyond the ones laid out in the original commerce secretary report as long as it's part of the original "plan of action" (PrimeSource Building Products v. U.S., Fed. Cir. #21-2066).
The U.S. Court of Appeals for the Federal Circuit granted antidumping duty petitioner Welspun Tubular's bid for an extension of time to request a full-court rehearing of a key decision. The petitioner now has until Feb. 8 to ask the full Federal Circuit to reconsider a decision which found that the Commerce Department can no longer make a particular market situation adjustment to an AD respondent's cost of production in a sales-below-cost test for the purposes of calculating normal value (see 2112100039). Petitions for en banc rehearings were originally due Jan. 9. Welspun won the extension after characterizing the appeal as one that is "critically important" to the petitioner and many other domestic producers of goods subject to ADD orders (see 2112290027) (Hyundai Steel Company v. U.S., Fed. Cir. #21-1748).
The Commerce Department violated the law when it initiated an antidumping and countervailing duty investigation into quartz surface products from India since it didn't have the requisite industry support, importer M S International told the U.S. Court of Appeals for the Federal Circuit in its Dec. 20 opening brief. Urging the appellate court to overturn a Court of International Trade decision that found that Commerce legally interpreted what constitutes a "producer" of QSPs, MSI argued that Commerce erred by excluding fabricators from the industry support calculation (Pokarna Engineered Stone Limited v. U.S., Fed. Cir. #22-1077).
Counsel for pencil importer Royal Brush Manufacturing resubmitted its entry of appearance at the U.S. Court of Appeals for the Federal Circuit Dec. 23, attempting to bring its filing in line with court rules. The appellate court previously found that the notice was not in compliance with court rules since the filing party, Ronald Oleynik of Holland & Knight, didn't have an electronic filing account (see 2112160069). In the updated filing, Steven Gordon was listed as principal counsel for Royal Brush (Royal Brush Manufacturing, Inc. v. U.S., Fed. Cir. #22-1226).
The U.S. Court of Appeals for the Federal Circuit Dec. 27 ruled that CBP cannot use "bypass" liquidations when considering prior customs treatment. The appellate court held that the Court of International Trade erred when it took these bypass liquidations into its consideration of treatment previously afforded importer Kent International's children's bicycle seats (see 2111030031). Remanding the case to CIT, a three-judge panel at the Federal Circuit, though, upheld the trade court's finding that there was no de facto "established and uniform practice" regarding the customs classification of kids' bike seats. The mandate awarded $127.02 in costs to appellant Kent International (Kent International v. United States, Fed. Circ. #21-1065, CIT #15-00135).
The Commerce Department failed to justify its reliance on a third-country company's financial statements for calculating constructed value in an antidumping duty review despite a U.S. Court of Appeals for the Federal Circuit opinion that called that reliance into question, the Court of International Trade said. Remanding Commerce's finding for the third time in a Dec. 22 opinion, Judge Mark Barnett said that Commerce did not adequately distinguish the review from a case in which the company's financial statements were found to be unsuitable since there was evidence of a subsidy.
The Court of International Trade on Dec. 22 again remanded the Commerce Department's second remand results in the antidumping duty investigation of steel nails from Oman. The second remand results had been filed in response to a Court of Appeals for the Federal Circuit opinion that said Commerce didn't adequately explain its reliance on a financial statement from Hitech Fastener Manufacturer (Thailand) Co. -- a third-country company -- to calculate constructed-value profit since Commerce didn't adequately consider whether Hitech had received countervailable subsidies. CIT Judge Mark Barnett found Commerce's decision to stick with Hitech's financial statement wasn't in compliance with the Federal Circuit.