Plaintiffs in a conflict-of-interest suit, led by Amsted Rail Co., plan to appeal the Court of International Trade's judgment dismissing the case for lack of jurisdiction regardless of the outcome of their injunction motion, the plaintiffs said in a Nov. 30 response to a court order. However, ARC said that it is "mindful" that developments in the present case against the International Trade Commission and its related action against the Commerce Department "may bear on whether an appeal should be voluntarily dismissed before or after the appeal is docketed" (Amsted Rail Co. v. United States International Trade Commission, CIT #22-00307).
The Court of International Trade stayed a case from importer Hanwha Q Cells America (Hanwha) (Hanwha Q Cells America v. U.S., CIT # 22-00305), pending the resolution of a case at the U.S. Court of Appeals for the Federal Circuit it says is related. The case challenges Presidential Proclamation 10101, which reimposed safeguard duties on previously excluded bifacial crystalline silicon photovoltaic (CSPV) solar panels, was issued in violation of the Trade Act of 1974. The legality of the modification proclamation is "common to other cases," Hanwha said. One of those cases is currently on appeal to the Federal Circuit, Solar Energy Industries Association v. U.S., Fed. Cir. # 2022-1392, so staying the current case until those issues are resolved by the higher court promotes judicial economy, Hanwha argued. A stay presents no hardship to the government, Hanwha said. Staying the proceedings would not impact the government's ability to collect ongoing import duties and it saves DOJ from devoting resources to relitigating the same issues as it had previously in Solar Energy, it said. The court agreed, staying the matter.
The Court of International Trade in a confidential Nov. 28 opinion sent back parts and upheld parts of the Commerce Department's final determination in the antidumping duty investigation on mattresses from Vietnam. In a letter issued to the litigants, Judge Timothy Reif gave the parties until close of business Dec. 5 to review any confidential information to be bracketed in the opinion. In the complaint, the plaintiffs, led by Ashley Furniture Industries, challenged Commerce's reliance on Emirates Sleep Systems' financial statements in its decision to use Indian Harmonized Tariff Schedule subheading 7320.90.90 as a surrogate value for pocket coil innerspring units and the agency's refusal to list Ashley Furniture Trading Co. and Ashley Furniture Industries as eligible for the dumping rates given to certain companies where AFTC and AFI reinvoiced the goods before import (Ashley Furniture Industries v. United States, CIT #21-00283).
The Commerce Department in Nov. 29 remand results at the Court of International Trade dropped its particular market situation adjustment from the sales-below-cost test when calculating normal value following a voluntary remand request in an antidumping duty case. The result dropped respondent Saha Thai Steel Pipe Public Company Ltd.'s AD margin from 36.97% to 14.74%. The agency also reduced the margin for non-selected respondent Thai Premium Pipe Co. since it is part of the litigation (Saha Thai Steel Pipe Public Company v. United States, CIT #21-00627).
The Court of International Trade should condition its dismissal of a lawsuit seeking to release goods excluded over forced labor concerns on CBP honoring an agreement that would allow the goods to be exported, importer Virtus Nutrition argued in a Nov. 28 reply brief. Responding to the U.S.'s refusal to commit to honoring the Temporary Storage Agreement, which would ensure that the goods could be exported, Virtus said that it is not trying to extend the agreement, as the government argues, but merely to enforce it (Virtus Nutrition v. U.S., CIT #21-00165).
Importer RKW Klerks will appeal an October Court of International Trade decision finding that CBP properly classified net wraps used for baling hay as a warp knit fabric under Harmonized Tariff Schedule subheading 6005.39.00. According to a Nov. 28 notice of appeal, the importer will take the case to the U.S. Court of Appeals for the Federal Circuit. In the opinion, the trade court ruled against classification under plaintiff RKW Klerks' preferred subheading 8433.90.50 as "parts" of "harvesting or threshing machinery" (RKW Klerks v. United States, CIT #20-00001).
The Court of International Trade will hold a hearing in a conflict-of-interest case on the motions to dismiss and for a preliminary injunction barring attorney Daniel Pickard and his firm Buchanan Ingersoll from participating in certain antidumping and countervailing duty proceedings, according to the text-only order on Nov. 28. The plaintiffs, led by Amsted Rail Co., allege that Pickard, ARC's former counsel, and Buchanan committed an ethical violation by using ARC's information against it in the AD/CVD proceedings on freight rail couplers from China and Mexico (see 2211250007). ARC had a similar case recently dismissed from the trade court seeking to bar Pickard and Buchanan from the International Trade Commission proceedings (see 2211150033). The court dismissed the action for lack of subject-matter jurisdiction -- something ARC tried to remedy in the Commerce case with an amended complaint (Amsted Rail v. United States, CIT # 22-00316).
The Court of International Trade should reconsider its decision to uphold the Commerce Department's use of the Cohen's d test as part of its differential pricing analysis (DPA) to root out "masked" dumping, given a recent U.S. Court of Appeals for the Federal Circuit decision, plaintiff SeAH Steel Corp. argued in a Nov. 21 reply brief. Responding to the U.S.'s opposition to the rehearing bid, SeAH said that since the Federal Circuit called the use of the Cohen's d test into question in Stupp Corp. v. U.S., the trade court needs to reconsider its ruling made before the CAFC decision (SeAH Steel Corp. v. United States, CIT #19-00086).
The Commerce Department requested a voluntary remand to consider whether there is enough evidence to verify claims that countervailing duty respondent Jiangsu Senmao Bamboo and Wood Industry Co. did not use China's Export Buyer's Credit Program, the U.S. said in a Nov. 23 reply brief at the Court of International Trade. Senmao gave Commerce non-use declarations for all of its U.S. customers. Seeing as the trade court has in past decisions remanded CVD cases to consider whether information such as these declarations may be enough to verify non-use, the agency requested the chance to review this information (Evolutions Flooring v. United States, CIT Consol. #21-00591).
A voluntary remand is not needed in a case concerning the National Oceanic and Atmospheric Administration's ban on imports of fish and fishery products from New Zealand caught using techniques that allegedly have caused the near extinction of the Maui dolphin, plaintiffs Sea Shepherd New Zealand and Sea Shepherd Conservation Society argued in a Nov. 23 reply brief at the Court of International Trade. NOAA's call for a voluntary remand "is a red herring" and would let the agency "avoid the repercussions of its decision to not rule on the" New Zealand government's 2021 comparability findings application by the end of the year -- a move that delays the consideration of new information over the Maui dolphin, the U.S. said (Sea Shepherd New Zealand, et al. v. United States, CIT #20-00112).