Court of International Trade

The Court of Appeals docketed Since Hardware (Guangzhou) Co. Ltd.’s appeal of the Court of International Trade’s rulings in Home Products International, Inc. v. United States. Since Hardware, defendant-intervenor in the case, filed the appeal on Aug. 10 concerning three CIT rulings in January, May, and June. At issue were surrogate values calculated for Since Hardware’s imports in the International Trade Administration’s 2007-08 administrative review of the antidumping duty order on floor-standing, metal-top ironing tables and certain parts thereof (A-570-888). CIT remanded the final results in January, and sustained the resulting remand determination in June.

The International Trade Administration must consider factors beyond scope language when including a product in an antidumping or countervailing duty order, said the Court of International Trade in a remand of an ITA scope determination. The ITA had ruled that plaintiff A.L. Patterson, Inc.’s steel coil rod falls within the scope of the antidumping duty order on certain steel threaded rod from China (A-570-932). In so doing, the ITA declined to consider Patterson’s evidence that (1) the original AD petition did not include steel coil rod; and (2) the ITA and International Trade Commission did not investigate dumped steel coil rod imports nor injury to domestic industry by such imports. The ITA said the language of the scope was unambiguous in its inclusion of steel coil rod, so it did not have to examine other factors. But CIT disagreed, and said if the ITA interpreted the scope to include a product then it is subject to interpretation. Therefore, said CIT, the ITA had to consider the other factors.

Hitachi Home Electronics (America) wants the U.S. Supreme Court to step in and strengthen a 42-year-old federal statute that bars CBP from dragging its feet on import duty protests, it said in a July 30 petition. Only the Supreme Court "can remedy the harm caused by the Federal Circuit's decision which affects all customs duty protests and, potentially, all imports into the United States," it said. "This case, containing no factual disputes, offers this Court a clean opportunity to examine the federal question of paramount importance raised in this case." Responses to Hitachi's Supreme Court request are due Aug. 31.

The Court of International Trade affirmed the International Trade Commission’s final negative determinations in the second sunset reviews of the antidumping and countervailing duty orders on hot-rolled flat-rolled carbon-quality steel products from Brazil and Japan, which resulted in revocation of the AD and CV suspension agreements for Brazil (A-351-828 / C-351-829) and the AD order for Japan (A-588-846). The domestic plaintiffs contested nearly every element of the ITC’s analysis, including the ITC’s decision not to cumulate the volume and effect of subject imports between the countries subject to the sunset review (which included Brazil, Japan and Russia), the likely volume and price effects of imports if the agreements and order were revoked, the vulnerability of domestic industry, and the likelihood of adverse impact, but CIT said the ITC’s determinations in each of these analyses were supported by substantial evidence. As such, CIT deferred to the ITC, and dismissed the challenge.

The Court of International Trade dismissed Hartford Fire Insurance Company’s attempt to void or discharge bonds securing duties on entries made by an importer that violated U.S. import laws. The bonds at issue secured duties on entries subject to the antidumping duty order on frozen cooked crawfish tailmeat from China (A-570-848). Sunline, the importer, failed to pay the duties owed, and CBP made a demand on Hartford for payment on eight single entry bonds. But Hartford said, among other things, that CBP should have told it that Sunline was under investigation at the time, and that CBP’s silence constituted misrepresentation that voided the bonds. CIT said CBP was not required to disclose the investigation, and the decision to allow bonds in lieu of cash deposits was at CBP’s discretion. Because Hartford did not claim that CBP abused this discretion, CIT dismissed Hartford’s claim without prejudice. CIT also dismissed three other claims, two with prejudice.

Voidance requests do not extend the 180-day deadline for challenging CBP protest denials at the Court of International Trade, said CIT in its dismissal of plaintiff Sears Holdings Management’s customs classification challenge. Sears had filed a request with CBP to void denial of its classification protest, which was denied, and a protest of CBP’s denial of its voidance request, which CBP rejected on the grounds that voidance requests are not protestable. Sears then filed suit at CIT within the 180-day period after its voidance request protest was rejected, but more than 180 days after its original protest was denied. In its decision, CIT said it has no jurisdiction over the matter because (1) voidance requests do not extend the 180-day deadline for challenges of CBP protests, so Sears’ challenge of the original protest denial was untimely filed; and (2) denials of voidance requests are non-reviewable agency actions which cannot themselves be challenged at CIT. Therefore, CIT dismissed Sears’ challenge.

The Court of Appeals for the Federal Circuit reversed part the Court of International Trade’s July 2010 dismissal of Ford’s request to liquidate and refund duties paid on ten reconciliation entries of imported Jaguar brand vehicles that Ford argued should have been deemed liquidated. In 2010, CIT had dismissed Ford’s claims for lack of subject matter jurisdiction and lack of controversy, and had declined to issue a judgment on other claims. CAFC reversed CIT’s jurisdiction ruling because CIT’s ruling was based on events that occurred after Ford filed its court complaint, reversed CIT’s dismissal for lack of controversy, and vacated CIT’s decision to dismiss other Ford claims.

The Court of International Trade denied CBP’s motion to reconsider its April dismissal of CBP’s attempt to recover penalties from defendant Nitek Electronics for misclassified entries of gas meter swivels and gas meter nuts from China that were subject to an antidumping duty order. In April, CIT had ruled that CBP failed to exhaust its administrative remedies because at the administrative stage CBP had alleged gross negligence, while before the court CBP alleged the lesser charge of negligence. This time, CIT found nothing new in CBP’s arguments for reconsideration. “A party’s disagreement with a ruling does not always equate to a ‘clear error’ warranting reconsideration,” CIT said. “More to the point, mere repetition of unsuccessful arguments is an improper use of Rule 59 and a needless delay to finality.”

The Court of International Trade delayed its decision in a case involving the International Trade Administration’s use of “zeroing” in administrative reviews, pending resolution of the appeal of CIT’s ruling in Union Steel v. U.S., currently before the Court of Appeals for the Federal Circuit. Although plaintiffs and defendants opposed staying the case, which involves the final results of the 2009-10 administrative review of the antidumping duty order on certain frozen warmwater shrimp from India (A-533-840), CIT said the delay will serve the interest of judicial economy and will conserve the resources of the parties. According to CIT, neither plaintiffs nor defendant showed any harm that would have resulted from the stay.

In the Aug. 1 issue of the U.S. Customs and Border Protection Bulletin (Vol. 46, No. 32), CBP published notices on its withdrawal of a revocation and modification of rulings on the classification of toilet seats and iPod docking stations.