The U.S. Court of Appeals for the Federal Circuit on Aug. 7 said the Commerce Department's use of only adverse facts available rates to set the rate for the non-individually examined respondents in antidumping proceedings, known as the "expected method," is not presumptively unreasonable. Judges Alan Lourie and Kara Stoll said instead that the "burden is on Commerce to justify a departure from the expected method, not to justify its use."
Jacob Kopnick
Jacob Kopnick, Associate Editor, is a reporter for Trade Law Daily and its sister publications Export Compliance Daily and International Trade Today. He joined the Warren Communications News team in early 2021 covering a wide range of topics including trade-related court cases and export issues in Europe and Asia. Jacob's background is in trade policy, having spent time with both CSIS and USTR researching international trade and its complexities. Jacob is a graduate of the University of Michigan with a B.A. in Public Policy.
Ljiljana Karadzic, wife of former Serbian President Radovan Karadzic, said the U.S. government's recent sponsorship of a U.N. Security Council Resolution related to petitions for sanctions delisting helps her case that the Office of Foreign Assets Control unreasonably delayed in ruling on her delisting petition (Ljiljana Karadzic v. Bradley Smith, D.D.C. # 23-01226).
The Court of International Trade earlier this month heard oral argument on whether a CBP protest denial effectively revoked a prior CBP protest decision by applying a different tariff classification to identical merchandise, and should have been subject to a notice-and-comment period (Under the Weather v. U.S., CIT # 21-00211).
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 chair and ranking member of the House Select Committee on China, along with a bipartisan group of 53 representatives, filed an amicus brief last week in the suit against the TikTok ban to support the constitutionality of the ban (see 2406070023) (TikTok v. Merrick Garland, D.C. Cir. # 24-1113).
The U.S. Court of Appeals for the Federal Circuit gave text-only notice to exporter Canadian Solar that it failed to respond to the court's notice of oral argument in an appeal on the 2017-18 antidumping duty review on solar cells from China. Exporter Risen Energy Co. 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). While Risen waived its right to appear at oral argument (see 2408020019), the court told Canadian Solar that failure to respond to notice of oral argument "may result in dismissal or other action as deemed appropriate by the court" (Risen Energy Co. v. U.S., Fed. Cir. # 23-1550).
The following lawsuits were recently filed at the Court of International Trade:
The Court of International Trade on Aug. 5 sustained the Commerce Department's decision to lower the countervailing duty subsidy rate for exporter Yama Ribbons and Bows Co. related to China's Export Buyer's Credit Program, from 10.54% to 0.87%. The result is a final, recalculated 22.2% total subsidy rate for Yama in the 2017 administrative review of the CVD order on narrow woven ribbons from China.
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."
A recent federal district court ruling limiting the U.S. anti-smuggling statute to physical goods won't affect export control enforcement efforts on data and other intangible exports sent digitally across borders, lawyers said in interviews. Although the U.S. District Court in Kentucky said a statute barring the unlicensed export of certain merchandise, articles or objects didn't apply to an email with magnet schematics sent to Chinese manufacturers (see 2407290046), lawyers noted that U.S. export control agencies have their own, specific enforcement authorities to regulate those digital transmissions.