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Court of Federal Appeals Trade activity
The U.S. Court of Appeals for the Federal Circuit in an Aug. 8 opinion held that tradeable tax credits fall within the regulatory definition of a "price adjustment," meaning the Commerce Department properly deducted the credits from respondent LDC Argentina's export price. Judges Kimberly Moore, Richard Taranto and Todd Hughes also ruled that Commerce's use of an international market price for soybeans in its constructed value calculation for biodiesel does not count as a double remedy, even though the U.S. imposed countervailing duties on Argentine soybeans.
The Government of Ontario won't participate in an appeal at the U.S. Court of Appeals for the Federal Circuit over the countervailing duty investigation on wind towers from Canada. Ontario gave notice of its non-participation on July 27 in the case. In March, the Court of International Trade sustained all five of the Commerce Departments positions under contention in the investigation. The consolidated case includes challenges to the investigation from Marmen Energie, which was the mandatory respondent; the governments of Canada, Quebec and Ontario; and the Wind Tower Trade Coalition, though now the Government of Ontario has dropped out of the appeal. Though it is out of the appeal, the court refused to drop the government from the case's official caption (The Government of Quebec, et al. v. United States, Fed. Cir. #22-1807).
The Court of Appeals for the Federal Circuit in an Aug. 2 opinion upheld the Commerce Department's determination in an antidumping investigation of biodiesel from Argentina. Judges Kimberly Moore, Richard Taranto and Todd Hughes held that tradeable tax credits fall within the regulatory definition of a "price adjustment" and deducted the credits from respondent LDC Argentina's export price. The appellate court also ruled that Commerce's use of an international market price for soybeans in its constructed value calculation for biodiesel does not count as a double remedy even though the U.S. imposed countervailing duties on Argentine soybeans.
The U.S. Court of Appeals for the Federal Circuit in a July 28 opinion held that CBP timely liquidated or reliquidated 10 entries of wooden bedroom furniture. The court ruled that the first unambiguous indication that an injunction against liquidation had ended came from liquidation instructions from the Commerce Department that were sent within the six months prior to liquidation, making the liquidation of the entries timely.
The Court of Appeals for the Federal Circuit in a July 28 opinion held that CBP timely liquidated or reliquidated 10 entries of wooden bedroom furniture. The court ruled that the first clear indication that an injunction against liquidation had ended came from the Commerce Department liquidation instructions, which were sent within the six months prior to liquidation, making the liquidation of the entries timely. Judges Timothy Dyk, Jimmie Reyna and Kara Stoll ruled that the Court of International Trade was right to find in a separate case, which put in place the injunction on the 11 entries under dispute in the present action, didn't unambiguously end the injunction, resulting in a finding that CBP timely liquidated the entries. The judges further held that while one of the entries should have been labeled as being reliquidated because it was deemed liquidated by law, this error was harmless.
The U.S. Court of Appeals for the Federal Circuit issued its mandate July 22 following its opinion ruling that the Commerce Department properly found that Shelter Forest International Acquisition's hardwood plywood exports didn't circumvent the antidumping and countervailing duty orders on hardwood plywood from China. In the June opinion, the Federal Circuit affirmed the Court of International Trade's opinion, finding that the merchandise was commercially available before Dec. 8, 2016, and was thus not later-developed merchandise that circumvented the AD/CVD orders (see 2206150032) (Shelter Forest International Acquisition Inc., et al. v. U.S., Fed. Cir. #21-2281).
The U.S. Court of Appeals for the Federal Circuit in a July 12 letter invited the U.S. and defendants-appellants Hyundai Heavy Industries (HHI) and Hyundai Corp. to file a response to a panel rehearing petition in an antidumping duty case. Originally brought by Hitachi Energy USA, the case concerns the administrative review of the AD order on large power transformers from South Korea. In a May opinion, the Federal Circuit ruled that the Commerce Department improperly hit respondent HHI with adverse facts available over its reporting of service-related revenue. The court said HHI has the right to supplement the record and Commerce cannot claim the company didn't act to the best of its ability in the review since it fully responded to Commerce's requests for further information (see 2205240028). Hitachi then filed for a rehearing, and the court invited the U.S., HHI and Hyundai Corp. to respond since they have yet to file a reply (Hitachi Energy USA v. United States, Fed. Cir. #20-2114).
The Commerce Department in July 18 remand results submitted to the Court of International Trade flipped its positions on whether a particular market situation adjustment distorts the cost of production of a welded line pipe input and whether an adjustment should be made to antidumping duty respondent Nexteel Co.'s constructed value for sales of non-prime goods. The agency conformed to the trade court's ruling, finding a PMS doesn't exist and recalculating CVD without the non-prime goods adjustment, leaving respondents Nexteel and SeAH Steel Corp. with 1.12% and zero percent dumping rates, respectively. However, the agency stuck by its decision to reclassify Nexteel's reported losses over its suspended production lines (Nexteel Co. et al. v. United States, CIT #20-03898).
The U.S. on July 14 appeared in a case at the U.S. Court of Appeals for the Federal Circuit over whether the Commerce Department has the statutory authority to conduct expedited countervailing duty reviews. The court in June invited the U.S. to file an amicus brief after it failed to appear to that point (see 2206100045). In response, Elizabeth Speck at DOJ asked the court for another 92 days to file the amicus brief, filing an unopposed motion for extension of time. In the brief, Speck said that the additional 92 days is necessary since the U.S. has decided not to participate in the appeal.