Companies have the right to judicially challenge an antidumping duty investigation's final determination even if it is subject to a suspension agreement, the U.S. Court of Appeals for the Federal Circuit said in a series of four opinions on April 14. The court issued the opinions together as they all pertain to the same antidumping investigation on Mexican tomatoes. While the appellate court sent the cases back establishing jurisdiction for the claims against the AD investigation's final determination, the court did dismiss some claims against the termination of a prior suspension agreement and the new suspension agreement.
Court of Federal Appeals Trade activity
The Court of International Trade has jurisdiction to hear challenges to the Commerce Department's final determination in antidumping cases subject to suspension agreements, the U.S. Court of Appeals for the Federal Circuit said in a series of four opinions issued April 14. Throughout the four cases, various U.S. and Mexican tomato producers challenged the final determination in the antidumping investigation into Mexican tomatoes, which was subject to an antidumping suspension agreement. The cases also challenged Commerce's withdrawal from a previous suspension agreement and the agency's decision to continue the antidumping investigation following this withdrawal.
The Commerce Department's decision not to grant exporter Ningbo Qixin a separate rate in an antidumping duty matter for not having any sales during the period of review "is logically inconsistent" since the agency is supposed to then rescind the antidumping review, the exporter told the U.S. Court of Appeals for the Federal Circuit in an April 12 opening brief. Ningbo Qixin also argued that the Court of International Trade improperly denied the appellant's motion to file new factual information out of time since "extenuating circumstances" warranted another shot to submit the information (Canadian Solar, et al. v. United States, Fed. Cir. #20-2162).
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Three judges at the U.S. Court of Appeals for the Federal Circuit probed the question of whether a group of U.S. steel companies, led by U.S. Steel Corp., could intervene in a spate of cases challenging the Commerce Department's decision to deny certain importers exclusions to Section 232 steel and aluminum duties. During an April 7 oral argument, Chief Judge Kimberly Moore and Judges Pauline Newman and Todd Hughes expressed serious doubt as to whether the steel companies could join the exclusion challenges (California Steel Industries v. United States, Fed. Cir. #21-2172).
Arguments from antidumping plaintiffs, led by Wilmar Trading, looking to invoke a recent U.S. Court of Appeals for the Federal Circuit opinion on whether a particular market situation exists "significantly overstates" the case's relevance, DOJ said in an April 7 reply brief (Wilmar Trading PTE v. United States, CIT Consol. #18-00121).
The Commerce Department had to draw a line somewhere, and its use of a test to distinguish the production activities of producers and fabricators to determine industry support in antidumping duty and countervailing duty investigations on quartz surface products from India is in line with the law and prior court precedent, DOJ said in a reply brief filed April 6 with the U.S. Court of Appeals for the Federal Circuit.
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In its argument disputing the Commerce Department's conclusion that the company is de facto controlled by the Chinese government, exporter Zhejiang Machinery Import & Export Corp. is asking the U.S. Court of Appeals for the Federal Circuit to "fundamentally rewrite" this element of antidumping proceedings, the U.S. argued. In its reply to ZMC's opening brief, DOJ said ZMC's stance, if upheld, would shift the burden to Commerce and require the agency to affirmatively prove the existence of government control by a majority shareholder, when the appellate court has already established that this burden is the respondents' (Zhejiang Machinery Import & Export v. U.S., Fed. Cir. #21-2257).
The U.S. Court of Appeals for the Federal Circuit issued its mandate on March 30 in an antidumping duty case affirming that the Commerce Department cannot make a particular market situation adjustment to the sales-below-cost test. The petitioner, Welspun Tubular, unsuccessfully requested a stay of the mandate so that it could appeal the matter to the Supreme Court (see 2203240063). The appellate court said that a stay of the mandate was not needed to preserve this right. In the case's opinion, the Federal Circuit said that Commerce can only make a PMS adjustment when calculating constructed value, affirming a long line of Court of International Trade decisions (see 2203220082) (Hyundai Steel Company v. United States, Fed. Cir. #21-1748).