The Supreme Court's landmark ruling June 30 that curbed the Environmental Protection Agency's power to issue regulations intended to counter climate change is unlikely to have ramifications for trade cases at the Court of International Trade and the U.S. Court of Appeals for the Federal Circuit, but there is a chance some trade actions with a larger scope could be affected, trade lawyers said in recent days.
The Commerce Department stuck by its decision to issue questionnaires in lieu of on-site verification due to the COVID-19-related travel restrictions in 2020 following an order from the Court of International Trade to either conduct verification virtually or further explain its original decision. The agency in June 30 remand results said that the plaintiffs, led by Bonney Forge, raised the issue of conducting a virtual verification too late and that mandatory respondent Shakti Forge Industries' questionnaire responses provide a "reasonable alternative" to on-site or remote verification (Bonney Forge Corporation v. United States, CIT #20-03837).
The Court of International Trade in a June 9 opinion made public July 1 sent back parts and upheld parts of the Commerce Department's final determination in the antidumping duty investigation on biodiesel from Indonesia. Judge Richard Eaton said that Commerce's decision to rely on constructed value based on particular market situation findings for home market sales made through Indonesia's Public Service Obligation program was valid, but that the reliance on CV for non-program sales needed to be further explained. The judge also held that the agency had to further explain its legal authority to make a CV adjustment to account for Renewable Identification Numbers (RINs) -- tradeable credits issued by the U.S. Environmental Protection Agency.
The Court of International Trade in a July 1 order granted the U.S.'s motion for entry of confession of judgment in a customs case on imported hardwood plywood from Richmond International Forest Products (RIFP). In all, Richmond filed four cases over 60 entries of hardwood plywood, which CBP classified as of Chinese-origin, assessing antidumping, countervailing and Section 301 duties, along with a merchandise processing fee. RIFP argued that the plywood is from Cambodia, filing a series of protests that CBP denied (Richmond International Forest Products Inc. v. United States, CIT #21-00178).
The U.S. Court of Appeals for the Federal Circuit in a July 1 order denied three Mexican tomato exporters' bid for a panel rehearing and rehearing en banc in a case challenging the termination of an antidumping duty suspension agreement. Judges Kimberly Moore, Pauline Newman, Alan Lourie, Timothy Dyk, Sharon Prost, Richard Taranto, Raymond Chen, Todd Hughes, Kara Stoll, Tiffany Cunningham and Leonard Stark denied the petition from Agricola La Primaveria, Bioparques de Occidente and Kaliroy Fresh, while Judge Jimmie Reyna did not participate (Bioparques de Occidente v. United States, Fed. Cir. #20-2265, -2266, -2267).
The Court of International Trade in a June 30 opinion upheld the Labor Department's decision to deny a group of former AT&T call center workers trade adjustment assistance, ruling that the department "(finally) gets it right," following two previous remand orders. Judge M. Miller Baker ruled that Labor adequately explained the evidence it relied on, asserting that the department appropriately relied on certified information to declare that the company did not offshore the plaintiffs' call center jobs.
The U.S. Court of Appeals for the Federal Circuit owes no deference to CBP's procedures in an antidumping and countervailing duty evasion investigation since those procedures violated importer Royal Brush Manufacturing's due process rights, the importer argued in a June 30 reply brief. Royal Brush also argued that CBP's decision to not give the importer access to business confidential information in the Enforce and Protect Act proceeding is a problem of CBP's own creation, and that the U.S. offers insufficient defenses of the company's constitutional due process claims (Royal Brush Manufacturing Inc. v. U.S., Fed. Cir. #22-1226).
Exporter SeAH Steel Corp. should not be allowed to intervene in an antidumping duty case at the Court of International Trade since the court's ruling in the matter "would have no effect on its entries," the U.S. argued in a June 30 reply brief. SeAH only seeks to join the case, initially brought by Hyundai Steel Co., to potentially use the opinion as precedent in a later proceeding from a subsequent administrative review, DOJ said. This rationale does not clear the court's bar for establishing standing as an intervening party, the U.S. argued (Hyundai Steel Co. v. United States, CIT Consol. #22-00138).
The Court of International Trade should not allow the Commerce Department to apply the highest dumping margin possible by picking only one mandatory respondent in a "weight-averaging situation," plaintiffs, led by Kisaan Die Tech Private, argued in a June 30 motion for judgment. The highest possible rate of the one respondent, determined using adverse facts available, is not reflective of the cooperating respondents' dumping margin, and thus not backed by evidence or law, the plaintiffs said (Kisaan Die Tech Private Ltd. v. U.S., CIT Consol. #21-00512).
The U.S. District Court for the Western District of North Carolina will allow shipping company Planet Nine Private Air's counterclaims of fraud, fraudulent concealment and negligent misrepresentation to proceed, denying We CBD's motion to dismiss them, in a June 28 opinion (We CBD v. Planet Nine Private Air, W.D.N.C. #21-00352).