The U.S. Court of Appeals for the Federal Circuit's July 13 decision in favor of President Donald Trump's Section 232 tariff increase for Turkish steel past the 105-day deadline set by statute may be a serious setback for Turkish steel exporters (see 2107130059), but what it means for the remaining litigation challenging the president's authority under Section 232, Section 301 or any other statute granting the executive tariff powers is less clear, lawyers said in the days following the decision.
Court of Federal Appeals Trade activity
The Commerce Department must further explain its use of a statistical test when using its differential pricing analysis in an antidumping duty investigation, the U.S. Court of Appeals for the Federal Circuit said in a July 15 opinion. Partially remanding an antidumping investigation into welded line pipe from South Korea, the Federal Circuit questioned Commerce's use of the "Cohen's d test" to discover targeted or masked dumping.
The U.S. Court of Appeals for the Federal Circuit upheld a Court of International Trade ruling dismissing an importer's challenge of CBP's assessment of antidumping and countervailing duties, for improper jurisdiction, in a July 14 opinion. The Federal Circuit found that TR International Trading Company, which filed its case under the trade court's Section 1581(i) "residual" jurisdiction provision, could have instead challenged a denied protest under 1581(a) or a scope ruling under 1581(c), rendering Section 1581(i) unavailable.
The Commerce Department will only partially apply adverse facts available for sales a diamond sawblade exporter made to its U.S. affiliate, which used a first-in-first-out methodology to keep track of its country of origin data when calculating the exporter's antidumping rate, it said in remand results filed by the agency July 13. The filing comes to the Court of International Trade after the U.S. Court of Appeals for the Federal Circuit left it up to the trade court to determine if a further remand was needed. The Federal Circuit held that a remand was appropriate for Commerce to determine if it could disregard the exporter's U.S. sales using the FIFO methodology (Diamond Sawblades Manufacturers' Coalition v. United States, CIT #17-00167).
The U.S. Court of Appeals for the Federal Circuit remanded in part and sustained in part the Commerce Department's final determination in an antidumping investigation into welded line pipe from South Korea in a July 15 opinion. The appellate court affirmed all but one of the Court of International Trade's findings, sending the case back to Commerce to reconsider the use of Cohen's d test in its differential pricing analysis when seeking to assign a dumping margin for goods having undergone "masked dumping."
The Commerce Department submitted its remand results to the Court of International Trade on July 12 in an antidumping administrative review on multilayered wood flooring, dropping one of the mandatory respondents from the review in response to a ruling in a separate case from the U.S. Court of Appeals for the Federal Circuit (Fine Furniture (Shanghai) Limited, et al. v. United States, CIT # 14-00135). Following multiple court decisions and remand results, proceedings in Fine Furniture's case were stayed pending the results of the Federal Circuit appeal in Changzhou Hawd Flooring Co., Ltd. v. United States. The eventual decision found that Fine Furniture is not subject to the antidumping order since the mandatory respondents in the underlying AD order received de minimis duty rates in Commerce's final determination (see 2106020069). CIT lifted the stay and remanded the case to exclude Fine Furniture from the review and recalculate the rate for the separate respondents. As a result of Fine Furniture's departure from the review, and the other two mandatory respondents in the review having zero percent antidumping duty margins, the AD rate for all separate rate respondents would fall to zero percent, should the rate be sustained.
The president may impose greater Section 232 national security tariffs beyond the 105-day timeframe for action set out in the statute, the U.S. Court of Appeals for the Federal Circuit said in a July 13 ruling. Overturning a lower court ruling, the Federal Circuit found that the underlying law's deadline for the president to take "action" can refer to a "plan of action" carried out over a period of time following the 105-day deadline. That authority is not unlimited, though, in that modifications must be related to the underlying reasoning for the tariffs and those reasons can't be "stale," CAFC said.
President Donald Trump did not violate procedural timelines when he raised tariffs on Turkish steel from 25 to 50% in August 2018, beyond the 90-day deadline and 15-day implementation period for initial Section 232 tariffs, the U.S. Court of Appeals for the Federal Circuit said in a July 13 opinion. Reversing a Court of International Trade decision, the Federal Circuit threw a wrench in a key argument against certain Section 232 tariffs that action beyond the statutory timelines should not be allowed.
The Commerce Department continues to find that the South Korean government did not provide a countervailable subsidy to producers of hot-rolled steel by way of cheap electricity despite a U.S. Court of Appeals for the Federal Circuit opinion to the contrary, in July 6 remand results. Filing the second remand results of its kind in a second, separate Court of International Trade case brought by POSCO, Commerce held that POSCO's countervailing duty in an investigation into carbon and alloy steel cut-to-length plate from Korea will remain unchanged (POSCO v. United States, CIT #17-00137).
Steel nail importer Hilti, Inc. filed a consent motion to stay proceedings on June 30 in its Court of International Trade case challenging the legality of the expansion of the Section 232 tariffs to cover steel and aluminum “derivatives” pending a key U.S. Court of Appeals for the Federal Circuit opinion on the same topic. CIT recently halted liquidation of Hilti's entries pending the resolution of the case (see 2106300032). Hilti wants to pause the case until the Federal Circuit reaches an opinion in PrimeSource Building Products v. U.S. CIT previously held in the PrimeSource case that the Section 232 tariff expansion onto derivative products violated statutory time limits. Counsel for Hilti conferred with Ann Motto of the Justice Department, who consented to the stay (Hilti, Inc., v. U.S. et al., CIT # 21-00216).