A panel of attorneys for importers, domestic petitioners and the government discussed March 13 topics that included the consequences -- or lack thereof -- Loper Bright might have on scope ruling litigation.
The U.S. government's attempt to dismiss anti-forced labor group International Rights Advocates' (IRAdvocates) suit seeking to compel CBP to respond to a withhold release order petition on cocoa from Cote d'Ivoire is "premised on a significant mischaracterization of IRAdvocates' case," the group argued. Filing a reply brief at the U.S. Court of Appeals for the Federal Circuit on March 13, IRAdvocates said its case is meant to compel a CBP response to the petition and not to secure an affirmative determination on the WRO, as the U.S. suggests (International Rights Advocates v. Kristi Noem, Fed. Cir. # 24-2316).
President Donald Trump's memo regarding the enforcement of Federal Rule of Civil Procedure (FRCP) 65(c) likely won't affect trade litigation given that the Court of International Trade doesn't follow the FRCP and the existence of customs bonds, attorneys told Trade Law Daily.
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Judges at the U.S. Court of Appeals for the Federal Circuit last week questioned the Commerce Department's use of the Cohen's d test in identifying "masked" dumping in the lead case on the use of the test, which returned to the appellate court after its initial remand in 2023. Judges Alan Lourie, William Bryson and Leonard Stark asked counsel for exporter SeAH Steel Corp. if Commerce has a "lot of discretion" in how it uses the test, and they asked the government's attorney if the agency has discretion to use the test even if it's statistically unsound (Stupp Corp. v. United States, Fed. Cir. # 23-1663).
In oral argument March 7, judges on the U.S. Court of Appeals for the Federal Circuit and attorneys addressed whether the Commerce Department must, in scope rulings, make an independent determination about whether a product is covered by the plain language of an antidumping or countervailing duty order before moving on to (k)(1) factors (Magnum Magnetics Corp. v. U.S., Fed. Cir. # 24-1164)..
The Commerce Department again failed to support its inclusion of marble composite tile made by Elysium Tiles within the scope of the antidumping and countervailing duty orders on ceramic tile from China, the Court of International Trade held on March 11. Judge Jane Restani remanded Commerce's scope ruling for a second time, finding that the agency's focus on the tile's decorative features is irrelevant, and that Commerce engaged in a too-simple discussion on the additional processing the tile went through.
After two remands, the Court of International Trade sustained March 10 the Commerce Department’s choice of India as a surrogate over Indonesia for an antidumping duty review on Vietnamese-origin frozen fish fillets. The department’s selection was reasonable and adequately explained, it said.
The Commerce Department properly excluded various mattress models made by exporter PT Ecos Jaya Indonesia from the antidumping duty order on mattresses from Indonesia for being either "multifunctional furniture" or "mattress toppers," the Court of International Trade held on March 7. However, Judge Jennifer Choe-Groves said five models of PT Ecos' mattresses didn't clearly qualify for the mattress topper exclusion, since the evidence didn't sufficiently establish that they were used on top of mattresses.
The Court of International Trade affirmed March 7 the Commerce Department’s decision to not grant antidumping duty investigation respondent Gujarat Fluorochemicals a home market price offset.