Five Republican Senators filed an amicus brief on Dec. 15 with the U.S. Supreme Court, urging it to take up a case over the limits of the president's authority under the Section 232 national security tariff statute. The brief, signed by Sens. Pat Toomey, R-Pa.; Mike Crapo, R-Idaho; Bill Cassidy, R-La.; Mike Lee, R-Utah; and Ben Sasse, R-Neb., argues against a U.S. Court of Appeals for the Federal Circuit opinion spurning time limits imposed in the statute. The time limits are crucial to ensuring that "Congress makes the major policy decisions regarding the regulation of foreign commerce," the lawmakers said.
The U.S. Court of Appeals for the Federal Circuit found the notice of appearance for pencil importer Royal Brush Manufacturing's counsel in the company's appeal of an evasion finding to not be in compliance with the court's rules. Ronald Oleynik of Holland & Knight, the attorney listed on Royal Brush's Entry of Appearance, had not registered for an electronic filer account with the Federal Circuit's filing system. The form must be resubmitted once Oleynik has an electronic filing account, the notice said (Royal Brush Manufacturing, Inc. v. U.S., Fed. Cir. #22-1226).
Recently, the U.S. Court of Appeals for the Federal Circuit made a splash when it said that the Commerce Department can no longer make a particular market situation adjustment to an antidumping review respondent's cost of production in a sales-below-cost test when calculating normal value (see 2112100039). This opinion surfaced in two Court of International Trade cases also contesting Commerce's PMS adjustment to the sales-below-cost test via a pair of supplemental authority notices (NEXTEEL Co., Ltd., et al. v. United States, CIT Consl. #20-03868) (Hyundai Steel Company v. United States, CIT Consol. #18-00154).
The U.S. Court of Appeals for the Federal Circuit found that two entries of appearance for Department of Justice attorney Robert Kiepura are not in compliance with court rules, the Federal Circuit said in two Dec. 15 notices. The entry documents were filed after the cases had been assigned to a merits panel, so in order for them to be properly added to the cases, Kiepura must first file a motion for leave to appear, the appellate court said. One case is appealing a July 2020 Court of International Trade decision that upheld the Commerce Department's termination of an old suspension agreement on fresh tomatoes from Mexico (Confederacion de Asociaciones v. U.S., Fed. Cir. #20-2232). The other is challenging a September 2020 decision dismissing a challenge to the final antidumping duty determination on fresh tomatoes from Mexico (Bioparques de Occidente v. U.S., Fed. Cir. #20-2265).
In its comments on the Commerce Department's remand results, antidumping review petitioner Nucor Tubular grappled with a recent U.S. Court of Appeals for the Federal Circuit opinion rejecting particular market situation adjustments for the sales-below-cost test. Arguing that since this decision is not yet binding as the mandate has not been issued, the Court of International Trade can still consider Nucor's position and rule in favor of the PMS adjustment (Garg Tube Export v. U.S., CIT #20-00026).
The U.S.Court of Appeals for the Federal Circuit found building materials company Bruskin International's opening and reply briefs to not be in compliance with the court's rules, the appellate court said in a Dec. 10 notice. The paper copies of the briefs were not printed single-sided, contrary to court rules. The court does permit, though, the double-sided printing of appendices. Further, the paper copies of the reply brief had an incorrect yellow cover since the cover of the appellant's reply brief must be gray, the notice said (M S International, Inc. v. United States, Fed. Cir. #21-1679).
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).
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.
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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).