Court of International Trade

The Court of International Trade reconsidered its previous affirmance of the International Trade Administration’s use of zeroing methodology in the final results of the 2006-07 antidumping administrative review of certain corrosion-resistant carbon steel flat products from Korea (A-580-816), and ordered the ITA to submit a second remand redetermination to address the issue of zeroing.

The Court of International Trade affirmed a voluntary remand by the International Trade Administration on the issue of fraud by plaintiff Tianjin Magnesium International, a respondent in the 2006-07 administrative review of an antidumping duty order on pure magnesium from China (A-570-832). CIT also affirmed the ITA’s decision to apply Adverse Facts Available (AFA) in determining Tianjin’s rate as a result of that fraud.

In a challenge of U.S. Customs and Border Protection’s Harmonized Tariff Schedule (HTS) classification of “boots [that] can be pulled on with the hands, and that…extend above the ankle” as "slip-on footwear," brought by plaintiff Deckers Outdoor Corp., the Court of International Trade ruled in favor of CBP. CBP originally classified the entries under HTS No. 6404.19.35, which includes “[non-sports] footwear [with outer soles of rubber or plastics] of the slip-on type, that is held to the foot without the use of laces or buckles or other fasteners,” dutiable at 37.5% ad valorem.

The Court of International Trade dismissed another action brought by a domestic producer challenging the distribution of funds under the Continued Dumping and Subsidy Offset Act of 2000 (CDSOA) (aka the Byrd Amendment) with regard to the antidumping duty orders on certain polyester staple fiber from Korea (A-580-839) and Taiwan (A-583-833).

The Court of International Trade granted the U.S. Trade Representative’s motion to dismiss a challenge to the 2006 Softwood Lumber Agreement’s provision to distribute $500 million solely to members of the Coalition for Fair Lumber Imports (CFLI). The action was brought by non-CFLI members of the domestic softwood lumber industry.

In a government action seeking recovery of lost duties and penalties based upon negligence from defendant Nitek Electronics, Inc., the Court of International Trade granted Nitek’s motion to dismiss the government’s penalty claim for negligence. CIT found that, with respect to the penalty claim, the government failed to exhaust its administrative remedies prior to this action.

The Court of International Trade is requesting comments by May 14, 2012, on a Notice of Proposed Amendments to the Rules for Review and Comment. The proposals pertain to CIT Rule 54.1, and 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. Proposed amendments to Rule 54.1 are available here.

The Court of International Trade remanded the results of the International Trade Administration’s initial remand of the 2005-06 administrative review of the antidumping duty order on certain hot-rolled carbon steel flat products from India (A-533-820). CIT sustained the ITA’s remand redetermination of Indian intervenor-defendant Essar’s duty-drawback claim in response to domestic plaintiffs’ arguments, as well as its decision to use invoice date as the date of sale, rather than the date of the letter of credit, as it had in the original final results. However, CIT remanded the initial remand results (i) for application of the ITA’s new policy on adjusting cost of production in accordance with the adjustment to Essar’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. CIT says that the ITA has until May 25, 2012 to amend and correct the initial remand results. (Slip Op. 12-48, dated 04/11/12, Judge Aquilino)

The Court of International Trade denied the U.S. Government’s motion to amend an August 2011 judgment against defendants Great American Insurance Company of New York and Washington International Insurance Company. The government moved to amend the judgment, in which the CIT granted in part the government’s request to recover antidumping duties on bonds covering entries subject to the AD order on freshwater crawfish tail meat from China (A-570-848), in order to collect pre and post-judgment interest. CIT denied the government’s Rule 59(e) motion to amend the judgment because the Government’s request was to consider the issue for the first time, rather than reconsider the issue, which contravenes the purpose of a Rule 59(e) motion. The CIT did not consider the Government’s argument that it is entitled to prejudgment under 19 USC 580. (CIT Slip Op. 12-49, dated 04/11/12, Judge Goldberg)

The Court of International Trade announced that, effective May 1, 2012, it has approved certain increases in fees for services provided by the CIT. Specifically, CIT increased fees for, among other things, original admission of an attorney to practice (now $76), records retrieval (now $53), filing/indexing in cases where a case filing fee has not been paid (now $46), etc. CIT said the changes flow from an increase in the district court miscellaneous fee schedule promulgated under Title 28 U.S.C. § 1914.