Court of International Trade

The International Trade Administration amended the scope of the antidumping duty order on steel nails from China (A-570-909), effective Aug. 4, to include steel nails found within toolkits, pursuant to a July Court of International Trade ruling affirming the ITA’s redetermination of an earlier scope ruling on remand. The ITA had originally found steel nails in toolkits imported by Target Corporation to be outside of the scope of the AD order in an August 2010 scope determination, and again found such nails to be outside of the scope on remand from CIT. CIT rejected this first remand, however, and on its second try, under protest, the ITA found the nails to be within scope.

The Court of International Trade remanded for the second time the final results of the 2006-07 administrative review of the antidumping duty order on tapered roller bearings and parts thereof from China (A-570-601). This time, CIT said there was nothing on the record that indicated Chinese plaintiff Peer Bearing Company-Changshan (which received a 92.84% AD rate in the original final results) was uncooperative, and therefore the ITA’s decision to apply an adverse facts available (AFA) AD rate of 60.95% on remand was unsupported. CIT also said the ITA’s decision not recalculate the surrogate values of three of plaintiff’s inputs was in violation of the first remand order, and reprimanded the ITA for failure to obey the court order.

The Court of International Trade finally affirmed the final results of 2004-05 administrative review of the antidumping duty order on certain pasta from Italy (A-475-818) on the International Trade Administration’s third try. After previous rulings had affirmed the ITA’s decision to use constructed value to calculate Atar S.r.l.’s AD rate instead of normal value because Atar had no viable home market or third-country comparison, CIT affirmed the ITA’s calculation of Atar’s profit rate and indirect selling expense rate, both of which are components of constructed value. Accordingly, Atar’s AD rate fell from the 18.18% final results rate to the 11.76% AD rate in this third remand redetermination.

The Court of International Trade accepted the International Trade Administration’s rationale for zeroing in administrative reviews but not in investigations, but again remanded the ITA’s refusal to individually review a voluntary respondent in the 2008-09 administrative review of the antidumping duty order on frozen warmwater shrimp from Vietnam (A-552-802). CIT said the standard employed by the ITA in refusing to individually investigate company Grobest & I-Mei Industrial (Vietnam) Co., Ltd., which may have been eligible for partial revocation if it had been found to have its third consecutive zero AD rate, would render part of the statute useless because it would set so low a bar as to allow the ITA to refuse to individually review voluntary respondents even when such a review would not impose an undue burden.

The Court of International Trade again remanded the all-others rate from the original countervailing duty investigation of aluminum extrusions from China (C-570-968). CIT continued to find that the ITA was within its rights to use only the mandatory respondents’ CV rates to calculate the all others rate. CIT also found its within the rights of the ITA to use only mandatory respondents’ AD rates determined using adverse facts available.¹ But CIT said the ITA’s remand redetermination still did not explain how the 375.15% AFA CV for mandatory respondents rate was reasonable use as an all others rate, and remedial not punitive.

The Court of Appeals for the Federal Circuit reversed a Court of International Trade remand of the final results of the 2006-07 administrative review of the antidumping duty order on magnesium metal from the Russian Federation, and ordered CIT to reinstate the original final results. In its ruling, CAFC said CIT overstepped its authority by requiring the International Trade Administration to consider factual information that Russian magnesium and titanium manufacturer PSC VSMPA-Avisma submitted beyond the regulatory deadline. CAFC also said CIT misinterpreted the phrase “ordinary course of business” in the statute in requiring the ITA to use a methodology that also accounted for Avisma’s titanium production when allocating costs in the calculation of constructed value for Avisma’s magnesium sales. According to CAFC, the phrase refers to a normal time period, and does not dictate a specific cost accounting methodology.

The Court of International Trade dismissed claims that the International Trade Administration improperly ordered the retroactive suspension of liquidation of some of Chinese woven sack exporter Zibo Aifudi Plastic Packaging Co., Ltd.’s subject merchandise as moot, and sustained the International Trade Administration’s decision to apply the China-wide rate to AMS as a result of Adverse Facts Available (AFA) in the 2008-09 administrative review of the antidumping duty order on laminated woven sacks from China (A-570-916).

The Court of International Trade approved amendments to its Rules for Review and Comment July 24, which are set to take effect on Sept. 3. CIT had proposed the amendments, which pertain to CIT Rule 54.1, for comment on April 13. CIT said it received no comments on the amendments, and adopted the proposal without change. The amendments to Rule 54.1 include, among other things, a requirement that applications for attorney’s fees and expenses under the Equal Access to Justice Act be filed within 30 days after the date of final judgment (the Rule previously stated that applications must be filed within 30 days after the court enters final judgment). A new sentence also says the 30-day statutory period for filing an application under the Equal Access to Justice Act begins to run after the expiration of the time period for filing an appeal. The amendments to rule 54.1 are available here.

The Court of International Trade affirmed the International Trade Administration’s second remand redetermination of a scope determination for certain steel nails from China (A-570-909), and dismissed the case in its entirety. The original determination had excluded nails imported in home tool kits from the scope of the AD order. In response to a challenge by Mid Continent Nail Corporation, CIT had remanded the ITA’s determination in May 2011, finding that the ITA has applied contradictory approaches in cases where merchandise covered by AD orders is imported in kits with non-covered items. CIT then found fault with the results of the ITA’s first remand redetermination in March, saying that "[t]he nails in question …are unambiguously subject to the Final order,” and remanded again. In this affirmed second remand, the ITA found the nails to be in scope, but did not address application of a uniform test to products imported in kits. The ITA's remand redetermination is available here.

The Court of International Trade sustained the results of a remand redetermination of the final results of the 2005-06 administrative review of ball bearings and parts thereof from France, Germany, Italy, Japan, Singapore, and the United Kingdom (A--427--801, A--428--801, A--475--801, A--588--804, A--559--801, and A--412--801). CIT said the International Trade Administration’s remand redetermination provided adequate explanations to address plaintiff SKF’s concerns that (1) by constructing normal value using the unaffiliated supplier’s costs of production SKF would be unable to adjust its pricing to avoid dumping or decrease its antidumping duty liability because it would lack knowledge of its supplier’s production cost data; and (2) the ITA would apply adverse facts available (AFA) if the unaffiliated supplier failed to provide cost data. The remand was pursuant to a 2011 ruling by the Court of Appeals for the Federal Circuit.