In the August 2006 - July 2007 AD administrative review of polyethylene retail carrier bags from Thailand, the International Trade Administration assigned an adverse rate of 122.88% to KYD Inc., an importer of bags produced by two uncooperative Thai producers. The Court of International Trade twice remanded the rate calculation to the ITA, holding that the rate was not corroborated, supported by evidence, or relevant to KYD’s imports in the period of review, and noting that even for uncooperative respondents, the agency is still constrained by “commercial reality.”
Court of International Trade
The United States Court of International Trade is a federal court which has national jurisdiction over civil actions regarding the customs and international trade laws of the United States. The Court was established under Article III of the Constitution by the Customs Courts Act of 1980. The Court consists of nine judges appointed by the President and confirmed by the Senate and is located in New York City. The Court has jurisdiction throughout the United States and has exclusive jurisdictional authority to decide civil action pertaining to international trade against the United States or entities representing the United States.
Domestic producer of antifriction bearings (AFBs) Schaeffler Group USA, Inc. brought legal actions seeking a share of duties collected under the Continued Dumping and Subsidy Act of 2000 (Byrd Amendment, or CDSOA). In the 1988 investigation by the International Trade Commission that led to the AD duty order on AFBs from Germany, France, Italy, Japan, Sweden, Romania, Thailand, Singapore, and the U.K., Shaeffler responded to the ITC’s questionnaire, but declined to indicate to the ITC that it supported the AD petition.
Following the February 2008 - January 2009 AD administrative review of certain frozen warmwater shrimp from Vietnam, Vietnamese producer/exporters challenged the International Trade Administration’s use of zeroing in AD administrative reviews while having abandoned the practice in investigations, and multiple Vietnamese plaintiffs also challenged the ITA’s labor rate calculations; its surrogate values work-up and surrogate financial expense calculations; its denial of a request for revocation; and its rejection of a separate rate certification due to late filing.
Chinese exporter Shantou Red Garden Foodstuff Co., Ltd. challenged the International Trade Administration‘s decisions in the less-than-fair value investigation of certain frozen warmwater shrimp from China1 which was conducted from April through September 2003. Red Garden contested the ITA's: 1) use of adverse facts for cost data the firm was unable to obtain from one of its suppliers; 2) choice of surrogate values for shrimp and shrimp feed; 3) choice of surrogate financial ratios; 4) use of inaccurate production volume data for one supplier; 5) use of inappropriate labor rates; and 6) refusal to accept corrections to factors-of-production calculations submitted prior to verification.
The Court of International Trade has upheld the results of a remand order from the Court of Appeals for the Federal Circuit, in which the International Trade Commission determined anew that imports of lightweight thermal paper (LWTP) from Germany threaten the domestic industry with injury.
There are two test cases pending in the Court of International Trade, in which Victoria's Secret Direct, LLC and Lerner New York, Inc. (retailer New York & Company) are challenging U.S. Customs and Border Protection's classification of a women's garment called a shelf bra cami or bra top camisole. These garments have a tank top or camisole silhouette and contain a built-in brassiere.
Chinese producer/exporter Since Hardware (Guangzhou) Co., Ltd. and domestic petitioner Home Products International, Inc. challenged the results of the August 2007 - July 2008 AD administrative review of floor-standing, metal-top ironing tables from China. The Court of International Trade directed the International Trade Administration to recalculate the surrogate value for labor (as the labor rate data had excluded India), but upheld the ITA’s other determinations.
The Court of International Trade has ruled that Estée Lauder cosmetic kits are properly classified as "retail sets" and not by their individual components, as all the components meet the particular need and specific activity of putting on makeup. The court also ruled that the makeup components, and not the carrying cases or other items, provide the set's essential character. The CIT found that CBP has been using a "fatally flawed" interpretation of relevant statutes, which has resulted in the routine rejection of products from being classified as sets simply because of their container.
In this case, U.S. Customs and Border Protection erroneously liquidated in 2008 a 2004 entry of wooden bedroom furniture from China made by Epoch Design LLC at the China-wide rate of 198.08% rather than the firm’s calculated rate of 6.65%. Epoch, however, failed to file a protest within 90 days1 of liquidation, then failed to pay all liquidated duties prior to initiating a suit (it paid the duties four months after initiating its suit). For both reasons, the Court of International Trade concluded that Epoch’s complaint “must be dismissed.”
Domestic ball bearings producer New Hampshire Ball Bearing, Inc. sought to be awarded a share of AD duties as an “affected domestic party” for ball bearings imported from Germany, France, Italy, Japan, Singapore, Sweden, and the U.K, under the Continued Dumping and Subsidy Offset Act of 2000, (CDSOA or Byrd Amendment). However, the Court of International Trade dismissed its complaint as the company, 12 years prior to CDSOA’s enactment, had declined to indicate its support for the AD petition in its response to ITC questionnaires.