Trade Law Daily is providing readers with the top stories from last week in case you missed them. All articles can be found by searching on the title or by clicking on the hyperlinked reference number.
Court of Federal Appeals Trade activity
A Court of International Trade decision on the classification of net wraps used for bailing hay was "fatally inconsistent" with the Federal Circuit's controlling precedent on the tariff definition of a part, RKW Klerks argued in a May 7 brief at the U.S. Court of Appeals for the Federal Circuit (RKW Klerks v. United States, Fed. Cir. # 23-1210).
The U.S. Court of Appeals for the Federal Circuit issued its mandate May 8 in a case in which it found that the Commerce Department can legally deduct Section 232 steel and aluminum duties from an exporter's U.S. price in antidumping duty proceedings, which raises the respondent's dumping margins (see 2303150035). In its March opinion, the appellate court said the presidential proclamation imposing the duties made clear that the tariffs were meant to be added to any applicable antidumping duties, though the court clarified that this ruling applies only to President Donald Trump's Section 232 duties and not all presidential action taken under this statute (Borusan Mannesmann Boru Sanayi ve Ticaret v. U.S., Fed. Cir. # 21-2097).
The U.S. Court of Appeals for the Federal Circuit granted the government's motion for leave to correct parts of two statements it made in a now-concluded case on tobacco excise taxes for cigar wrappers. The U.S. said samples of the goods relied on in the case were taken from a specific entry when they were not, adding that it has identified the source of six of the nine samples considered by the court. While importer and appellant New Image Global never raised the source of the samples as a concern, the company filed two related complaints at the Court of International Trade alleging for the first time that the lab reports were false and unreliable (see 2210310062). As a result, the U.S. asked the court for leave to withdraw the two statements that inaccurately describe the entries "out of a deep commitment to transparency and candor" (see 2304240043). The court granted the motion without prejudice to further proceedings before CIT (New Image Global v. U.S., Fed. Cir. # 19-2444).
The U.S. Court of Appeals for the Federal Circuit will drop SunPower Manufacturing Oregon from an appeal of the case on the 2017-18 administrative review of the antidumping duty order on solar cells from China if the company does not enter an entry of appearance within 14 days. John Magnus, counsel for SunPower, told Trade Law Daily that the company did not participate in the proceedings at the Court of International Trade and shouldn't have been included as a party in the appeal before the Federal Circuit. In the case, the Commerce Department set surrogate values for silver paste, while revising its use of adverse facts available, choosing to use partial neutral facts available (see 2301050026) (Risen Energy Co. v. United States, Fed. Cir. # 23-1550).
The U.S. Court of Appeals for the Federal Circuit denied a motion from plaintiff-appellants, led by Spanish olive growers Asociacion de Exportadores e Industriales de Aceitunas de Mesa, to get an additional 1,500 words to file in their reply brief in a case concerning the countervailing duty investigation on the ripe olives from Spain. Judge Kara Stoll told the olive growers that their brief is not to exceed 7,000 words and is due within 21 days. The olive growers asked for the additional words due to the "complexity of the issues presented in this appeal and the fact-specific nature of the arguments raised by the other parties" (see 2304170032) (Asociacion de Exportadores e Industriales de Aceitunas de Mesa v. U.S., Fed. Cir. # 23-1162).
CBP ignored Congress' "unambiguous express statutory command when it failed to distribute" interest assessed after liquidation, known as delinquency interest, under the Continued Dumping and Subsidy Offset Act of 2000, appellant Monterey Mushrooms said in a reply brief at the U.S. Court of Appeals for the Federal Circuit (Adee Honey Farms, et al. v. United States, Fed. Cir. # 22-2105).
The U.S. Court of Appeals for the Federal Circuit rejected importer China Custom Manufacturing's rehearing bid in an antidumping and countervailing duty scope case. In the decision, Judges Pauline Newman, Raymond Chen and Tiffany Cunningham said CCM's solar panel mounts do not qualify for the "finished merchandise" exclusion from antidumping and countervailing duty orders on aluminum extrusions from China (see 2303020037). In its rehearing motion, CCM said that rehearing was needed to maintain uniformity of the appellate court's prior decisions concerning the "unambiguous plain language" of the finished merchandise exclusion rule. The rehearing bid was referred to the three judges that heard the case, then sent to the remaining active judges on the court (China Custom Manufacturing v. United States, Fed. Cir. #22-1345).
Judge Timothy Dyk at the U.S. Court of Appeals for the Federal Circuit sharply questioned CBP at oral argument on whether the agency violated importer Royal Brush Manufacturing's due process rights in an Enforce and Protect Act investigation that found that the importer evaded antidumping and countervailing duty orders on pencils from China (Royal Brush Manufacturing v. United States, Fed. Cir. # 22-1226).
Trade Law Daily is providing readers with the top stories from last week in case you missed them. All articles can be found by searching on the title or by clicking on the hyperlinked reference number.