Trade Law Daily is providing readers with the top stories from last week, in case you missed them. All articles can be found by searching on the title or by clicking on the hyperlinked reference number.
The governments of Canada and Quebec, along with exporter Marmen Energy, vied for rehearing of a U.S. Court of Appeals for the Federal Circuit decision sustaining the countervailability of a Canadian tax program. Filing for full court or en banc rehearing of the decision, the Canadian government said the court allowed the Commerce Department to ignore "economic reality" and elevated "form over substance" (The Government of Quebec v. United States, Fed. Cir. # 22-1807)
The U.S. Court of Appeals for the Federal Circuit on Aug. 7 held that it's not unreasonable for the Commerce Department to set the all-others rate for non-individually examined respondents in an antidumping proceeding by using only total adverse facts available rates assigned to the mandatory respondents. Judges Alan Lourie and Kara Stoll said there's no burden on Commerce to show that using only AFA is reasonable, finding instead that the burden is on the agency to "justify a departure from the expected method," not to "justify its use." Judge Timothy Dyk filed a partial dissent, finding that just because the use of AFA is "expected" doesn't make it "reasonable." As a result, Dyk said Commerce must show that the sole use of AFA in setting the all-others rate is reasonable.
The following lawsuits were recently filed at the Court of International Trade:
The U.S. Court of Appeals for the 9th Circuit last week affirmed the convictions of six companies for conspiracy to commit wire fraud, customs fraud and promotional money laundering. However, the court said the trial court failed to resolve the parties' dispute on the value of the companies' warehouses before finding that they "lacked the ability to pay" the over $1.8 billion judgment and "ordering a nominal payment schedule."
The Commerce Department and the International Trade Commission published the following Federal Register notices Aug. 5 on AD/CVD proceedings:
The Court of International Trade on Aug. 1 reassigned to Judge Gary Katzmann from Judge Timothy Stanceu two related antidumping duty scope cases regarding steel truck wheels from China. The lead plaintiffs in the proceedings are Asia Wheel Co. and Vanguard National Trailer Corp., which filed the cases to challenge the Commerce Department's "substantial transformation" analysis regarding steel truck wheels made in Thailand with either Chinese-origin rims or discs (see 2407020049). The court didn't immediately respond to a request for comment on the switch (Asia Wheel Co. v. U.S., CIT # 23-00143) (Vanguard National Trailer Corp. v. U.S., CIt # 24-00034).
Exporter Risen Energy Co. waived oral argument in its appeal of the 2017-18 antidumping duty review on solar cells from China. Risen filed the appeal to claim that the Commerce Department failed to use the best information when setting surrogate values for the company's backsheet and ethyl vinyl acetate inputs (see 2305170049). The exporter also challenged the agency's calculation of its financial ratios. The U.S. Court of Appeals for the Federal Circuit set oral argument in the case for Sept. 3 (Risen Energy Co. v. U.S., Fed. Cir. # 23-1550).
The Commerce Department chose the wrong primary surrogate country in its antidumping duty review on aluminum foil from China, multiple exporters argued in a motion for judgment July 29. The department chose Romania, citing minor factors of production and slightly more contemporaneous data, over Malaysia and Bulgaria, which were more accurate, they claimed (Jiangsu Dingsheng New Materials Joint-Stock Co. v. U.S., CIT # 23-00264).
The Commerce Department was allowed to rescind the antidumping and countervailing duty reviews on wood moldings and millwork products from China, the U.S. said July 30 in response to several exporters’ April 25 motion for judgment (see 2404240065) (China Cornici Co. Ltd. v. U.S., CIT # 23-00217).