Court of International Trade

The Court of Appeals’ decision in Hitachi Home Electronics (America), Inc. v. United States “not only deprives importers of timely review of protests, but also allows Customs to block their access to judicial review,” said the American Association of Exporters and Importers (AAEI) in an amicus brief in support of Hitachi’s request for a Supreme Court hearing. Hitachi is appealing the October 2011 ruling of the Court of Appeals for the Federal Circuit that the statute does not require CBP to decide customs protests within two years, even though 19 USC 1515(a) says it “shall” do so.

The Court of International Trade sustained a remand redetermination of the final results of the 2007-08 administrative review of the antidumping duty order on silicon metal from China (A-570-806) with respect to the International Trade Administration’s use of Indian company FACOR’s financial statement as a surrogate to calculate Chinese respondents’ selling, general and administrative expenses. The ITA excluded FACOR’s sale of a power plant from the calculation as a non-routine transaction. Defendant-intervenors Shanghai Jinneng International Trade Co., Ltd. and Jiangxi Gangyuan Silicon Industry Co., Ltd. argued that the sale should have been included. But CIT found that they failed to adequately explain “how the sale of an entire power plant by ferroalloy producers, not in the business of selling power plants, amounts to an insignificant, routine transaction, and further, why that determination is the only outcome that the administrative record reasonably supports.”

The Court of International Trade remanded part of the International Trade Administration’s final determination in the countervailing duty investigation of multilayered wood flooring from China (C-570-971) for the ITA to reconsider its inclusion of two companies in a list of non-cooperating companies assigned an adverse facts available rate.

The Court of International Trade rejected CBP’s motion for over $80,000 in penalties from U.S. company Active Frontier International, Inc. (AFI) for falsely declaring country of origin on seven entries of apparel made during 2006 and 2007. CBP failed to establish that the misstatements were “material,” as required by 19 USC 1592 for imposition of a penalty, CIT said. The denial was without prejudice, so CBP is free to amend its complaint.

The Court of International Trade remanded the International Trade Administration’s calculation of normal value for plaintiff Far Eastern New Century Corp. (FENC) in the 09-10 administrative review of the antidumping duty order on certain polyester staple fiber from Taiwan (A-583-833). After publication of the final results, FENC told the ITA that it had committed a ministerial error by using an earlier version of FENC’s selling, general, and administrative expenses ratio to calculate FENC’s normal value, instead of the corrected version submitted later in the proceeding. The ITA disagreed, so FENC filed suit at CIT. But after the suit was filed, the ITA reexamined the record and found that it “may not have used the corrected normal value” in calculating the final AD rate. The ITA and FENC both requested the remand, and CIT assented.

Antidumping and countervailing duty rates may change for Chinese exporters of merchandise subject to four AD/CV orders as a result of an International Trade Administration Section 129 proceeding to implement a World Trade Organization ruling on double counting, according to a Federal Register notice set for publication Aug. 30. The determination affects the investigation AD/CV rates for Chinese exporters of merchandise subject to the AD and CV duty orders on (1) certain new pneumatic off-the-road tires from China (A-570-912 / C-570-913); (2) circular welded carbon quality steel pipe from China (A-570-910 / C-570-911); (3) laminated woven sacks from China (A-570-916 / C-570-917); and (4) light-walled rectangular pipe and tube from China (A-570-914 / C-570-915). The revised AD/CV rates are prospective, and only apply if the ITA hasn’t assigned new AD/CV rates in administrative reviews to these companies.

Indian producer Essar Steel appealed the Court of International Trade’s June ruling in U.S. Steel Corporation v. U.S. (Slip Op. 12-91), according to a Court of Appeals for the Federal Circuit docketing notice. Essar’s antidumping rate grew from 5.22% to 9.01% as a result of CIT’s ruling, which arose from U.S. Steel and Nucor’s challenge of the final results of the 2005-06 administrative review of the antidumping duty order on certain hot-rolled carbon steel flat products (A-533-820). At issue in the ruling were adjustments to cost of production for Essar’s duty drawback and corrections of ministerial errors made by the International Trade Administration. The appealed decision sustained the ITA’s second remand redetermination.

The Court of International Trade affirmed the International Trade Administration’s decision to rescind a new shipper review of the antidumping order on wooden bedroom furniture from China (A-570-890) with respect to Chinese company Marvin Furniture (Shanghai) Co. In its request for the new shipper review, Marvin had told the ITA that its first entries of subject merchandise to the U.S. occurred in June 2011. But after the ITA initiated the review, CBP found earlier entries of subject merchandise from Marvin. Given this new information, the ITA rescinded the new shipper review because Marvin’s review request did not meet the statutory requirements.

Chances are slim that the Hitachi case on time limits for CBP protests will be taken up by the Supreme Court, say industry lawyers, and that is feeding a growing push for a legislative solution. In its decision, the Court of Appeals for the Federal Circuit said the statutory two-year period for CBP to decide protests isn’t binding. But the remedy CAFC said is available to importers, accelerated disposition, could hurt smaller importers without the resources to challenge a deemed denial in court, industry lawyers said. Furthermore, CBP itself could face adverse consequences as more importers file for accelerated disposition. As a result, industry groups and customs brokers have begun pushing for amendments to the statute that would hold CBP to a time limit.

The Fresh Garlic Producers Association (FGPA) filed an appeal of the Court of International Trade’s June 11 ruling in Jinxiang Hejia Co. v. United States, according to an Aug. 22 Court of Appeals for the Federal Circuit docketing notice. In the appealed ruling, CIT affirmed the zero AD rate assigned to Chinese plaintiff Jinxiang Heija Co. in the second remand redetermination of a new shipper review of the antidumping duty order on fresh garlic from China (A-570-831). The International Trade Administration originally assigned Jinxiang Hejia an AD rate of 15.37%. At issue in the decision was the ITA’s use of price data when calculating surrogate values.