Judges at the U.S. Court of Appeals for the Federal Circuit probed the limits of the president's authority when implementing Section 232 national security tariffs during Feb. 9 oral arguments in a case representing a broad challenge to presidential action under the statute. Questions revolved around what elements, if any, of the process was judicially reviewable, with the plaintiffs, led by USP Holdings, arguing that the report issued by the commerce secretary to the president, which permits the president to impose the tariffs, is a final agency action and thus reviewable under the Administrative Procedure Act (USP Holdings, Inc. v. U.S., Fed. Cir. #21-1726).

The entire U.S. Court of Appeals for the Federal Circuit should consider the question of whether the Commerce Department can make a particular market situation adjustment to the sales-below-cost test when calculating normal value in antidumping duty proceedings, defendant-appellant Welspun Tubular said in a Feb. 8 petition for rehearing en banc (Hyundai Steel Company v. United States, Fed. Cir. #21-1748).

The Commerce Department cannot rely on adverse facts available in response the Chinese government's failure to provide certain information relating to its Export Buyer's Credit Program in a countervailing duty review, the Court of International Trade said in a Feb. 8 decision. Adding another to a line of decisions striking down the application of AFA in such circumstances, the court said Commerce has not shown why this information is necessary to verify that the CVD respondents, and their U.S. customers, did not use the program.

Court of International Trade Judge Richard Eaton expressed skepticism over the Commerce Department's assumption of 24 working days per month for calculating the surrogate labor rate in an antidumping duty case, during a Feb. 8 oral argument. The Department of Justice backed the use of the 24 working days standard, arguing that it is agency practice to use this number. Since counsel for Commerce at the oral argument could not provide a reason that the 24 working days standard exists, as opposed to a 19 or 20 working day alternative floated by the plaintiff, Eaton said that it should be easy to part with past agency practice as it wasn't an explained action (American Manufacturers of Multilayered Wood Flooring v. United States, CIT #20-03948).

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The Commerce Department switched its position on the countervailability of a South Korean sewerage fees program in Feb. 7 remand results, finding that the program is not countervailable. Commerce asked the Court of International Trade for a chance to reconsider the issue itself, ultimately coming back with the position that no benefit was preferred under the sewerage fees program and that the overall subsidy rate for countervailing duty respondent Hyundai Steel Company should be the de minimis rate of 0.49% (Hyundai Steel Company v. United States, CIT #21-00012).

There is no exception for business confidential information to the requirement that CBP provide a company subject to an antidumping duty and countervailing duty evasion investigation access to the evidence on which the agency relies, importer Royal Brush told the U.S. Court of Appeals for the Federal Circuit in a Feb. 4 opening brief. CBP's denial of Royal Brush's access to the BCI in the Enforce and Protect Act investigation violated its due process rights and created a "flawed process for adjudicating complaints of duty evasion," the brief said (Royal Brush Manufacturing Inc. v. United States, Fed. Cir. #22-1226).

The U.S. Court of Appeals for the 6th Circuit affirmed a federal district court's decision to dismiss a challenge to the Michigan Department of Agriculture and Rural Development's enforcement of a federal gasoline-volatility regulation on a duty-free gas station on the Canadian border. The regulation applies to Ammex's gas station, even though the gas station sells gas only for export because cars must drive into Canada after filling up, the appeals court said (Ammex v. Gary McDowell, 6th Cir. #20-1250).

A U.S. Court of Appeals for the Federal Circuit should reconsider its wrongfully decided opinion finding that the Commerce Department cannot make a particular market situation adjustment to the sales-below-cost test in antidumping duty proceedings, three defendant-appellants told the Federal Circuit in a Feb. 2 brief. Seeking a full court hearing, Atlas Tube, Searing Industries and Nucor Tubular Products said that the decision violates D.C. Circuit precedents over the "operation of ordinary canons of statutory construction in the administrative law context," and the Federal Circuit's precedents over deference afforded to Commerce (Dong-A Steel Company v. United States, Fed. Cir. #21-2153).

The Commerce Department must either conduct verification in an antidumping case, even if virtually, or more fully explain why it didn't conduct virtual verification in the face of a request to do so, the Court of International Trade said in a Feb. 2 decision. Judge Stephen Vaden expressed doubts over whether Commerce could complete the latter option, given that the agency failed to respond to the request for virtual verification. Commerce said no verification was conducted due to COVID-19-related restrictions. Vaden lambasted Commerce over this rationale given high-level U.S. officials' trips to India, the location of the would-be verification.