Court of International Trade

In a consolidation of multiple cases, eight domestic producers of crawfish tail meat, together with tapered roller bearings producer Koyo Corporation of U.S.A and antifriction bearings producer SKF USA, Inc., challenged the constitutionality of the Continued Dumping and Subsidy Offset Act of 2000 (CDSOA, or Byrd Amendment), and the administration of that statute by the International Trade Commission and Customs and Border Protection. Because they had not supported the petitions leading to the AD orders on crawfish tail meat or antifriction bearings, the companies were not included on the ITC’s lists of “affected domestic producers” (ADPs). Among other claims, they argued that the petition support requirement violated their First Amendment free speech, Fifth Amendment equal protection, and Fifth Amendment due process rights.

The Court of International Trade upheld the International Trade Administration’s choice of a surrogate value for nitric acid of 35.08 Indian rupees per kilogram, in a remand following the December 2007 - November 2008 AD administrative review of carbazole violet pigment 23 from China. The court had previously ordered the agency to explain its use of a value 12 times higher than what the domestic petitioners proposed, based on a source which the ITA itself had rejected in a prior review because it contained aberrational high values.

Domestic producer Mid-Continent Nail Corporation challenged a ruling by the International Trade Administration excluding nails imported in home tool kits from the scope of the August 1, 2008 AD order on certain steel nails from China. The Court of International Trade, finding that the ITA had applied contradictory approaches in cases where merchandise covered by AD orders is imported in kits with non-covered items, ruled that "[s]uch inconsistency in agency procedure is not permitted," and instructed the ITA to "identify a test it will employ consistently," with a legal justification.

The Court of International Trade has ruled that the proper classification of various imported weather measurement devices and clocks is made according to their essential character. In consideration of the devices' primary functionality and marketing, the CIT ruled that those with predominantly weather-related features are properly classified as other thermometers under heading 9025 or other meteorological instruments under 9015. The CIT found those devices with predominantly clock-related features are other clocks under 9105.

Following recent appeals court decisions that asked the International Trade Administration to explain its continued practice of zeroing (excluding the negative dumping margins of non-dumped imports from overall dumping margin) in administrative reviews after having ended it in investigations, the Court of International Trade has accepted a partly new set of justifications from the ITA. This CIT ruling comes on the heels of the ITA's final rule that eliminated zeroing as the normal procedure in administrative reviews.

In the February 2008 - January 2009 AD administrative review of certain frozen warmwater shrimp from India, the International Trade Administration chose to include the full amount of a bad debt the company wrote off during the period of review in the selling expenses of Indian producer Liberty Group/Liberty Frozen Foods Pvt., Ltd. although the period included only half the firm’s fiscal year.

Chinese producer/exporters argued that the International Trade Administration made six ministerial errors in the first AD administrative review of small diameter graphite electrodes from China, covering the period August 21, 2008 through January 31, 2010. The ITA agreed in part and sought court leave to correct three of the alleged errors, as well as one other ministerial error it had discovered (the agency had intended to publish amended final results before the Chinese producers filed suit).

Furniture Brands International, Inc. a domestic manufacturer that had filed questionnaire responses for the International Trade Commission in 2005 opposing the issuance of an AD duty order on wooden bedroom furniture from China, lost at the Court of International Trade when it later sought a share of AD duties resulting from the order, pursuant to the Byrd Amendment (aka the Continued Dumping and Subsidy Offset Act of 2000, CDSOA). Furniture Brands then sought an injunction from the CIT, pending an appeal, to delay the distribution of AD duties to other domestic companies that had supported the petition, but the CIT has now denied the request to hold up the funds distribution.

Consistent with other recent rulings on similar claims, the Court of International Trade dismissed a challenge by domestic manufacturer Standard Furniture Manufacturing Co., Inc. to its exclusion from the list of affected domestic parties (ADPs) eligible to receive a share of AD duties collected on wooden bedroom furniture from China under the Byrd Amendment (aka the Continued Dumping and Subsidy Offset Act of 2000 (CDSOA), and its request for an injunction to delay the distribution of duties to ADPs. The CIT chiefly based its dismissal on comparable challenges addressed by the Court of Appeals for the Federal Circuit in SKF USA Inc. v. U.S. (556 F. 3d 1337-2009) (SKF).

The Court of Appeals for the Federal Circuit has upheld a lower court's ruling that denied CBP's classification of certain finished flavoring products as soups or broths under HTS heading 2104. The Court instead ruled in favor of the importer based on its consideration of several factors which revealed that the flavorings were not principally used for soups and broths but could be used in many different ways. Thus, the Court ruled the flavorings are classifiable as food preparations under heading 2106.