Court of Federal Appeals Trade activity

CBP did not misapply the substantial evidence standard in finding that importers American Pacific Plywood, U.S. Global Forest and InterGlobal Forest evaded the antidumping and countervailing duties on hardwood plywood products from China, the Court of International Trade ruled in a June 22 opinion made public June 30.

Nature's Touch Frozen Foods (West) asked the Court of International Trade to stay a court order for CBP to reliquidate entries of its imported mixtures while the importer pursues an appeal of the relevant CIT decision, issued in May (see 2305260048). CIT had found the importer'ws frozen fruit mixtures classifiable under the basket tariff subheading 0811.90.80 pf the Harmonized Tariff Schedule of the U.S. as "other" frozen fruits, dutiable at 14.5%, rather than under a duty-free classification under subheading 2106.90.98 as “[f]ood preparations not otherwise specified or included," as advocated by Nature's Touch.

The government incorrectly claimed that there are two separate jurisdictional paths for contesting Enforce and Protect Act decisions, appellants Ascension Chemicals, UMD Solutions, Crude Chem Technology and Glob Energy Corp. argued in a reply brief at the U.S. Court of Appeals for the Federal Circuit (All One God Faith v. United States, Fed. Cir. # 23-1078).

Judge Pauline Newman should continue to be assigned new cases during an investigation into her fitness as a judge, she said in a request for an injunction filed with the U.S. District Court for the District of Columbia June 27. Represented by the New Civil Liberties Alliance, Newman sought an injunction against a decision by the Judicial Council of the U.S. Court of Appeals for the Federal Circuit barring her from being assigned new cases, claiming that the ban assaults her "judicial independence" and arguing that it infringes on her due process rights and violates Congress’ “exclusive right to impeach and remove Article III judges” (Pauline Newman v. Kimberly A. Moore, D.D.C. # 23-01334).

The U.S. Court of Appeals for the Federal Circuit rejected importer PrimeSource Building Products' bid to stay the court's issuance of its mandate in a suit over President Donald Trump's move to expand Section 232 steel and aluminum tariffs onto derivative products. The court ruled that the president legally imposed the tariffs, which were set beyond procedural time limits, and recently rejected PrimeSource's request for a reconsideration of the opinion (PrimeSource Building Products v. U.S., Fed. Cir. # 21-2066).

The U.S. Court of Appeals for the Federal Circuit in a June 22 order denied a bid for panel rehearing and rehearing en banc in the suit on President Donald Trump's expansion of Section 232 steel and aluminum duties onto derivative products. Judges Kimberly Moore, Pauline Newman, Alan Lourie, Timothy Dyk, Sharon Prost, Jimmie Reyna, Richard Taranto, Raymond Chen, Todd Hughes, Kara Stoll and Leonard Stark made the decision denying the petitioners, ruling that the mandate will be issued June 29 (PrimeSource Building Products v. United States, Fed. Cir. # 21-2066).

The U.S. Court of Appeals for the Federal Circuit on June 22 issued its mandate in a case on the 2017-18 administrative review of the antidumping duty order on activated carbon from China. The Federal Circuit said the Commerce Department properly valued an input of activated carbon using data from a country different from the primary surrogate nation (see 2305010028). The court said the agency's departure from its normal practice of preferring to take all the data from the primary surrogate country does not mean its decision was unsupported by substantial evidence (Carbon Activated Tianjin Co. v. U.S., Fed. Cir. # 22-1298).

The U.S. Court of Appeals for the Federal Circuit denied importer Smith-Cooper International's bid for 3,000 additional words in its reply brief as part of a suit on a scope case concerning Vandewater International's steel branch outlets. SCI filed a 10,000-word reply brief days after making the request to waive the word limit requirements. Judge Alan Lourie denied the request, telling SCI it must refile its reply brief, not to exceed 7,000 words, within 21 days of the June 21 order. The order comes despite appellant Sigma Corp. and the U.S. having consented to the move and SCI's claims that good cause existed for the use of more words, given the "voluminous nature of the Government's response brief" (see 2305250032) (Vandewater International v. U.S., Fed. Cir. # 23-1093).

A July 13 oral argument related to Judge Pauline Newman's fitness to continue serving on the bench will be closed to the public, a U.S. Court of Appeals for the Federal Circuit special committee ordered this week. In the June 20 order, the committee said that aside from an initial strong presumption of confidentiality in the proceeding, making the hearing public could jeopardize key information.

The Commerce Department incorrectly concluded that exemptions from Turkey's Bank and Insurance Transactions Tax (BITT) were countervailable subsidies, in the final results of the 2020 administrative review of the countervailing duty order on steel concrete reinforcing bar from Turkey, exporter Kaptan Demir Celik Endustrisi ve Ticaret said in a June 21 complaint. Kaptan also took issue with Commerce's valuation benchmark for industrial land in Turkey (Kaptan Demir Çelik Endüstrisi ve Ticaret A.Ş. v. U.S., CIT # 23-00131).