The Commerce Department erred in using the Cohen's d test to identify potential masked dumping in an antidumping investigation, Ashley Furniture argued in a Nov. 19 motion for judgment at the Court of International Trade. Tapping a recent Court of Appeals for the Federal Circuit opinion that questioned the validity of the standardized mean difference test, Ashley Furniture argued that Commerce's use of the test in the AD investigation into welded line pipe from South Korea rests on the same faulty assumptions that the Federal Circuit already rejected (Ashley Furniture Industries, LLC, et al. v. United States, CIT #32-00283).
Court of Federal Appeals Trade activity
The Department of Justice urged the U.S. Court of Appeals for the Federal Circuit to uphold a lower court ruling denying a group of domestic steel manufacturers the right to intervene in Section 232 exclusion denial cases, in a Nov. 17 brief, arguing that none of the producers has a legally protectable interest in the proceedings. DOJ said that the steel makers' economic interests are insufficient to warrant intervention in the cases since they are "indirect and contingent," seeing as the companies argue that their interest in the exclusions derives from "sales opportunities."
The U.S. Court of Appeals for the Federal Circuit issued a notice of noncompliance Nov. 15 to counsel for the U.S. government in a case involving Section 232 duties. The notice said only one attorney may serve as principal counsel for each party. Two Department of Justice attorneys, Stephen Tosini and Kyle Beckrich, currently are listed in the docket as counsel for the U.S., with both marked to receive notice. Tosini is listed as the lead counsel and Beckrich as the counsel of record. The Federal Circuit said that "a party's failure to timely file a corrected document curing all defects identified on this notice may result in this document being stricken (PrimeSource Building Products, Inc. v. U.S., Fed. Cir. , #21-2066).
The Supreme Court of the U.S. may hear an appeal of the key Transpacific Steel LLC v. United States decision, seeing it as an opportunity to discuss the question of the extent to which Congress delegated tariff powers to the president, Julie Mendoza of Morris Manning, counsel to plaintiff-appellee Borusan Mannesmann, told Trade Law Daily. Having recently petitioned the Supreme Court to take up the case, Mendoza said that having the case sit in front of the nation's highest court will also give her and her team a chance to argue that the most recent decision in the case runs afoul of the intelligible principle standard for delegation of powers to the president as it relates to Section 232.
In remand results filed at the Court of International Trade, the Commerce Department continued to find that antidumping respondent Jilin Forest Industry Jinqiao Flooring Group Co. has failed to establish its eligibility for a separate rate, making it part of the China-wide entity, and that the application of Commerce's non-market economy definition to Jinqiao Flooring was reasonable. The remand results relied heavily on a June U.S. Court of Appeals for the Federal Circuit case, China Manufacturers Alliance v. U.S., which established that China-wide rates can still be based on adverse facts available even if no members of the country-wide entity were found to be uncooperative (Jilin Forest Industry Jinqiao Flooring Group Co., Ltd., v. United States, CIT #18-00191).
The Commerce Department further defended its decision to continue relying on facts otherwise available in Nov. 8 comments submitted to the Court of International Trade, despite a U.S. Court of Appeals for the Federal Circuit opinion finding that such reliance on the current data was inappropriate. The plaintiff in the case, Dillinger France, argued that Commerce ignored the Federal Circuit's directive by continuing to rely on the "likely selling prices" in Dillinger France's records rather than the actual cost of production. Commerce responded that the plaintiff failed to submit the actual product-specific costs of producing the non-prime products or the physical characteristics of the non-prime products, leading to no other choice but to use facts otherwise available (Dillinger France S.A. v. United States, CIT #17-00159).
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President Joe Biden nominated Judge Leonard Stark of the U.S. District Court for the District of Delaware to serve on the U.S. Court of Appeals for the Federal Circuit. Stark, who served as the Delaware District's chief judge 2014 to 2021, would replace current Federal Circuit Judge Kathleen O'Malley, who announced that she would retire next March. Stark would be the president's second appointment to the Federal Circuit, after the Senate confirmed Tiffany Cunningham to the appellate court in July. Before joining the Delaware District Court in 2010, Stark was a U.S. magistrate judge for the District of Delaware, and before that, an assistant U.S. attorney for the District of Delaware.
Antidumping duty review petitioner Maverick Tube Corporation's argument's against the Commerce Department's move to rely on the actual costs of prime and non-prime products as reported by the AD respondent misinterprets a key precedential decision, AD respondent Nexteel Co. argued in a Nov. 3 brief at the Court of International Trade. Instead, Commerce complied with the court's orders and the precedent set in this decision made by the U.S. Court of Appeals for the Federal Circuit -- Dillinger France S.A. v. United States -- when it reversed the adjustment to the respondent's reported costs (Husteel Co., Ltd. v. U.S., CIT Consol. #19-00112).
The U.S. Court of Appeals for the Federal Circuit should reverse a Court of International Trade decision that found that CBP's "indirect method" for weighing importer New Image Global's tobacco wraps that included the weight of additives was legally and scientifically valid, New Image argued in its Nov. 1 opening brief. The Federal Circuit should remand the case to instruct the trade court that the original test for weighing the tobacco wraps was valid, the importer said.