U.S. Steel Corp., defendant-intervenor in a case over a denied Section 232 steel and aluminum tariff exclusion request, filed a notice of supplemental authority at the Court of International Trade on Nov. 14. The notice pointed to "developments" in a case before the U.S. Court of Appeals for the Federal Circuit, California Steel Industries v. U.S., in which the appellate court denied U.S. Steel the right to intervene in a different challenge to Section 232 exclusion request denials. Those "developments" reference U.S. Steel Corp.'s motion for rehearing (see 2210250056), in which it argued that the majority's ruling in the opinion cannot be squared with key Supreme Court precedent. The defendant-intervenor alerted the trade court to these developments "as they may result in a change to Federal Circuit law regarding the rights of parties to intervene in actions before the Court" (Seneca Foods Corp. v. United States, CIT #22-00243).
The Commerce Department admitted that it was "improper" to inflate a Mexican labor wage rate using Brazilian consumer price index (CPI) data in an antidumping duty investigation. Submitting its remand results on Nov. 14 to the Court of International Trade, Commerce said it reopened the record and added Mexican wage rate data. The agency also found on remand that exporter Guangzhou Ulix Industrial & Trading Co. met the burden for achieving separate rate status. The result of the remand is a zero percent dumping margin for respondents Ningbo Master International Trade Co., Guangzhou Jingye Machinery Co. and now Ulix (New American Keg v. United States, CIT #20-00008).
The Commerce Department stuck by its use of a simple average in the denominatory calculation of the Cohen's d coefficient -- a part of the test to root out "masked" dumping -- in Nov. 10 remand results submitted to the Court of International Trade. Responding to an order from the U.S. Court of Appeals for the Federal Circuit telling the agency to justify its departure from the academic literature about how to calculate the Cohen's d denominator, Commerce said that the literature actually supports the use of a simple average when sampling is not used (Mid Continent Steel & Wire v. United States, CIT Consol. #15-00213).
The following lawsuits were recently filed at the Court of International Trade:
Plaintiffs in a countervailing duty case will appeal a September Court of International Trade decision which found that the Commerce Department properly found that a particular EU subsidy to Spanish olive growers was de facto specific. According to the notice of appeal, plaintiffs Asociacion de Exportadores e Industriales de Aceitunas de Mesa, Agro Sevilla Aceitunas S. Coop. and Angel Camacho Alimentacion will take the case to the U.S. Court of Appeals for the Federal Circuit. In the decision, the trade court also upheld Commerce's finding that demand for ripe olives -- the subject merchandise in the CVD investigation -- was substantially dependent on the demand for certain raw olive varietals -- the good that received the subsidies (see 2209140052) (Asociacion de Exportadores e Industriales de Aceitunas de Mesa v. United States, CIT #18-00195).
Law firm Neville Peterson has replaced Clark Hill as counsel for importer Meyer Corp. in 10 cases at the Court of International Trade, according to a notice of substitution of attorney at the Court of International Trade. Meyer filed the case over the use of first sale treatment in which CIT questioned whether goods from non-market economies could qualify for first sale valuation. This ruling was overturned by the U.S. Court of Appeals for the Federal Circuit, which ruled that CBP had no basis to consider a country's non-market economy status when finding whether to grant first sale treatment to a transaction (see 2208110060). This case returned to the trade court, where it serves as a test case for many other proceedings brought by Meyer -- 10 of which Neville Peterson has taken over as counsel for Clark Hill (Meyer Corp. v. United States , CIT #14-00277, 15-00018, 15-00019, 15-00092, 15-00191, 15-00332, 16-00112, 16-00271, 17-00186, 20-03835).
The Court of International Trade in a Nov 10 order dismissed a customs case from Incipio Technologies concerning the classification of its wristlets and media player covers. CBP classified the merchandise under Harmonized Tariff Schedule subheadings 4202.22.1500, dutiable at 16%, and 3926.10.0000, dutiable at 5.3%. Incipio says it should have instead been classified under subheadings 4202.32.1000, dutiable at 4.6% + 12.1 cents per kilogram, and 8473.30.5100, free of duty, or 8522.90.7580 dutiable at 2% (Incipio Technologies v. U.S., CIT #17-00188).
The Court of International Trade does not have jurisdiction under 19 U.S.C. Section 1581(i) -- the court's "residual" jurisdiction -- to hear a case over whether former counsel for Amsted Rail Co. should be barred from certain antidumping and countervailing proceedings, the U.S. told the court. Concurrently filing an opposition to ARC's motion for a preliminary injunction, which would bar ARC's former counsel, Daniel Pickard and law firm Buchanan Ingersoll, from participating in the proceedings, and a motion to dismiss, the U.S. said that the court does not have jurisdiction to hear the case and that the plaintiffs are not likely to succeed in the matter (Amsted Rail Co. v. United States, CIT #22-00316).
Plaintiffs in a conflict-of-interest suit at the Court of International Trade invoked three court decisions -- two from the U.S. Court of Appeals for the Federal Circuit and one from the U.S. Court of Appeals for the 9th Circuit -- in a Nov. 9 notice of supplemental authority. The plaintiffs, led by Amsted Rail Co., said the cases were discussed during the hearing on the issue held at the trade court (Amsted Rail v. ITC , CIT #22-00307).
The Court of International Trade properly classified knit gloves under Harmonized Tariff Schedule heading 6116, the U.S. argued in a Nov. 7 reply brief at the U.S. Court of Appeals for the Federal Circuit. The heading provides for "[g]loves, mittens and mitts, knitted or crocheted" and is "sufficiently broad" to include knit gloves. The plaintiff-appellant, Magid Glove, puts forth a host of "inconsistent and unpersuasive arguments" to vie for classification under HTS heading 3926, which provides for "[o]ther articles of plastics," the brief said (Magid Glove & Safety Manufacturing Co. v. United States, Fed. Cir. #22-1793).