Court of International Trade

The Court of International Trade remanded the final determination in the antidumping duty investigation of certain steel grating from China (A-570-947), and ordered the International Trade Administration to (1) redetermine the AD margin for non-individually investigated separate rate recipients Yantai Xinke Steel Structure and Ningbo Haitian International; and (2) determine a separate rate for mandatory respondent Ningbo Jiulong Machinery, which the ITA had determined to be part of the China-wide entity when it applied adverse facts available (AFA). CIT also sustained the ITA’s decision to apply AFA to Jiulong.

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.

The U.S. Court of International Trade granted the U.S. government's motion to dismiss Acme Furniture Industry, Inc. vs. the U.S., in a decision July 18. The government had said Acme failed to state a claim upon which relief can be granted, but Acme said it was challenging an erroneous reliquidation by the CBP, so its challenge falls within section 1581(a).

The Court of International Trade dismissed Nan Ya Plastics Corporation’s bid for monetary benefits under the Continued Dumping and Subsidy Offset Act (CDSOA, aka the Byrd Amendment). Nan Ya had originally been a petitioner in the 1999 antidumping investigations of polyester staple fiber from Korea and Taiwan, but withdrew its support mid-investigation. CIT ruled that the International Trade Commission’s exclusion of Nan Ya from the affected domestic producer (ADP) list of firms eligible for CDSOA benefits was in accordance with the law and, as has been the case in past CIT decisions, dismissed Nan Ya’s First Amendment free speech claims and Fifth Amendment equal protection claims as foreclosed by the precedent of the court of appeals’ ruling in SKF v. U.S. CIT also said the retroactivity of CDSOA (domestic companies did not know that non-support of the petition would prevent CDSOA funds distribution at the time of the investigation) does not violate the Due Process Clause of the Fifth Amendment because Congress had a rational legislative purpose. (CIT Slip Op. 12-92, dated 07/12/12, Judges Carman, Stanceu, and Gordon)

The International Trade Commission’s denial of eligibility for benefits under the Continued Dumping and Subsidy Offset Act (CDSOA, aka the Byrd Amendment) for U.S. crawfish producer PS Chez Sidney was reversed by the Court of Appeals for the Federal Circuit. The ITC had originally ruled Chez Sidney ineligible in 2002, only to reverse its decision pursuant to a 2007 Court of International Trade remand after CIT said the petition support requirement of CDSOA violated the First Amendment. Then, in 2010, ITC once again found Chez Sidney ineligible for benefits after CAFC reversed CIT’s 2007 remand because of CAFC’s SKF v. USA ruling, which had found that the petition support requirement was constitutional. In this ruling, CAFC also remanded CBP’s decision, made during the 2007-2010 period during which Chez Sidney was found eligible, to only distribute benefits to Chez Sidney to the extent that the already distributed benefits were recoverable from other domestic producers.

The Court of International Trade sustained the International Trade Administration’s second remand redetermination 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). This second remand redetermination, which was ordered by CIT in April (i) for application of the ITA’s new policy on adjusting cost of production in accordance with the adjustment to Indian company Essar Steel Limited’s export price resulting from its duty-drawback claim, and (ii) to allow for the correction of a ministerial error discovered by Essar and agreed to by the ITA, sets the AD rate for Essar at 9.01%, up from 5.22% in the original final results. No parties contested the second remand redetermination, so CIT sustained it.

In a challenge of an International Trade Administration ruling that Chinese off-road tire manufacturer OTR Wheel Engineering, Inc.’s tires are within the scope of the antidumping and countervailing duty orders on certain new pneumatic off-the-road tires from China (A-570-912 / C-570-913), the Court of International Trade remanded the issue to the ITA to complete a full scope inquiry.

The Court of International Trade ruled that a challenge to the International Trade Administration’s exclusion (because of a zero rate) of a Chinese company from the antidumping duty order on multilayered wood flooring from China (A-570-970) was untimely filed, but said it would not dismiss the case because of questions, in light of recent Supreme Court and appellate court rulings, regarding (i) whether the relevant time requirements preclude jurisdiction and (ii) the possibility of equitable tolling. CIT ordered further briefing to address these issues.

In a challenge of CBP’s customs classification of “gold leaf vials” with a gold plated cap imported from China, the Court of International Trade ruled in favor of plaintiff Salem Minerals Inc. CBP had originally classified plaintiff’s “small glass vial filled with clear liquid and a small quantity of gold leaf fragments, topped with a ‘theme’ cap featuring a small figurine, and affixed with a label” under Harmonized Tariff Schedule 2005 subheading 7114.90.00 (“Articles of goldsmiths’…wares...': Of other precious metal whether or not plated or clad with precious metal”), dutiable at 7.9%. CIT ruled that the product was instead properly classified under 7115.90.30 (“Other articles of precious metal…: Other…Other: Of gold, including metal clad with gold”), dutiable at 3.9%.

The Court of International Trade remanded, in part, the final results of the 2008-09 administrative review of the antidumping duty order on polyethylene retail carrier bags from Thailand (A-549-821) in order for the International Trade Administration to reconsider its use of zeroing (on voluntary remand), as well as for the ITA to reconsider its cost adjustment for an input sourced from an affiliated supplier. CIT affirmed the ITA’s final results in all other respects.