The Commerce Department has the statutory authority to carry out expedited reviews in countervailing duty investigations, the U.S. argued in a Feb. 7 amicus brief at the U.S. Court of Appeals for the Federal Circuit. The U.S was invited to file the amicus brief by the Federal Circuit after it failed to appear regularly in the case. Taking the court up on its offer, the government claimed that the Commerce Department had preexisting authority for the regulation under the Uruguay Round Agreements Act, though even if this preexisting structure did not exist, the URAA itself along with the Statement of Administrative Action's statements provide authority for expedited CVD reviews (Committee Overseeing Action for Lumber International Trade Investigations or Negotiations v. United States, Fed. Cir. # 22-1021).
Court of Federal Appeals Trade activity
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A protest of a CBP decision must be filed within 180 days of liquidation and not the date the Commerce Department issues antidumping and countervailing duty instructions to CBP or the date CBP denies an importer's refund request, the U.S. Court of Appeals for the Federal Circuit held in a Feb. 6 opinion. Upholding a Court of International Trade decision, judges Timothy Dyk, Richard Taranto and Todd Hughes dismissed a case from importer Acquisition 362, doing business as Strategic Import Supply, that challenges a CBP assessment of countervailing duties, on the grounds that the company failed to file a protest.
Then-President Donald Trump legally expanded the Section 232 national security tariffs onto steel and aluminum "derivative" products, despite implementing the expansion beyond certain procedural deadlines laid out in the statute, the Court of Appeals for the Federal Circuit ruled in a Feb. 7 opinion. Relying on its 2021 opinion in Transpacific Steel v. U.S., in which the court said the president can adjust the tariffs beyond the time limits if it relates to the original plan of action laid out by the initial Section 232 tariff action, the Federal Circuit said the president can take action against derivatives despite the Commerce Department secretary not having individually investigated these articles. Judges Richard Taranto, Raymond Chen and Kara Stoll said the expansion to steel derivatives was within Section 232's authorization of presidential action.
Imported net wraps used to secure crops in a round bale should be classified as parts of agricultural machines rather than as "warp knit fabric," importer RKW Klerks argued in its Feb. 2 opening brief at U.S. Court of Appeals for the Federal Circuit. The appeal asks the court to reverse the judgment of the Court of International Trade and hold that imported netwrap is properly classified either as parts of hay balers under subheading 8433.90.50 or as parts of agricultural machinery under subheading 8439.90.00, both duty-free. In the further alternative, RKW asked the court to remand the case to CIT for further proceedings (RKW Klerks v. United States, Fed. Cir. # 23-1210).
The Court of Appeals for the Federal Circuit on Feb. 6 dismissed importer Acquisition 362's challenge of CBP's countervailing duty assessments, ruling it did not have jurisdiction because the importer failed to file a protest. Acquisition 362, which does business as Strategic Import Supply, had argued it didn't need to file the protest because there was nothing to protest within 180 days of the tire imports at issue being liquidated. Judges Timothy Dyk, Richard Taranto and Todd Hughes ruled a protest was needed nonetheless, holding the 180-day deadline to file a protest challenging a CBP decision runs from the date of liquidation and not from the date of Commerce's antidumping and countervailing duty instructions.
The Court of International Trade in a Feb. 2 order remanded the Commerce Department's final results in the second administrative review of the antidumping duty order on passenger vehicle and light truck tires from China, pursuant to the U.S. Court of Appeals for the Federal Circuit's mandate in the case (YC Rubber Co. (North America) v. United States, CIT # 19-00069).
The U.S. and the Wind Tower Trade Coalition failed to show that the Commerce Department's findings in a countervailing duty case on wind towers from Canada were supported by substantial evidence, plaintiff-appellants Quebec and Canada and respondent Marmen Energie argued in a Feb. 1 reply brief at the U.S. Court of Appeals for the Federal Circuit (Quebec v. U.S., Fed. Cir. # 22-1807).
The Commerce Department properly found that Australian steel maker BlueScope Steel did not reimburse its affiliated U.S. importer, BlueScope Steel Americas, for antidumping duties, the U.S. argued in a Jan. 27 reply brief at the U.S. Court of Appeals for the Federal Circuit. The government said that claims from AD petitioner U.S. Steel "are based entirely on a misreading of the supply agreement," since the agreement actually sets the price the importer will charge Steelscape, the affiliated final customer, and is silent as to the transfer price between the exporter and importer (U.S. Steel Corp. v. U.S., Fed. Cir. # 22-2078).
Importer Royal Brush Manufacturing has failed to rebut the U.S.'s showing that an appeal of an Enforce and Protect Act case should be dismissed since the entries have all been liquidated, the government argued in a Jan. 30 reply brief at the U.S. Court of Appeals for the Federal Circuit. Royal Brush failed to address the U.S. reliance on Federal Circuit precedent showing that "an unprotested liquidation divests the trial court of jurisdiction, even if the liquidation was erroneous," the brief said (Royal Brush Manufacturing v. United States, Fed. Cir. # 22-1226).