Court of International Trade

When the International Trade Commission surveyed domestic producers as part of its 1998-1999 AD duty injury determination investigations of preserved mushroom imports, Giorgio Foods, Inc. took no position on imports from China, Chile, and Indonesia, and opposed the petition with respect to India. Giorgio nevertheless challenged its exclusion from the list of “affected domestic producers” eligible to share in disbursements under the Continued Dumping and Subsidy Offset Act (CDSOA, commonly referred to as the Byrd Amendment). Now the Court of International Trade has denied Giorgio’s requests to amend its claim against the ineligibility rulings by the ITC and by U.S. Customs and Border Protection, and to add “due process“ and money damages claims. The court noted that the purpose of the statute is quite clear, “to bar opposers of AD investigations from securing payments” under the CDSOA. The CIT did permit Giorgio to withdraw two previous claims based on First Amendment and Equal Protection arguments, to “streamline” the case. (Slip Op. 11-139, dated 11/17/11)

Domestic manufacturer Kinetic Industries, Inc. challenged the refusal by the International Trade Administration to initiate an AD administrative review of saccharine from China for the July 2009 - June 2010 period, arguing that Taiwanese companies were repackaging Chinese-produced saccharin and re-exporting it to the U.S. to evade AD duties. The Court of International Trade concurred with the ITA’s reasoning that since repackaging does not amount to “assembly,” the Taiwanese exporters were not “interested parties “ under the relevant statute (19 USC 1677j). The court also agreed with the ITA that the alleged transshipments would be better addressed in an anti-circumvention inquiry, or in a Customs and Border Protection investigation that could result in monetary penalties for transshipments arising from negligence or fraud. (Slip Op. 11-138, dated 11/17/11)

The Court of Appeals for the Federal Circuit has ruled that the two year time limit in 19 USC 1515(a) for CBP to decide protests is not mandatory. Hitachi Home Electronics (America) Inc. had argued that all protests not allowed or denied within the two-year statutory time period should automatically be “deemed allowed by operation of law.” The CAFC said that the time limit is merely directory, and 28 USC 1581(i)¹ jurisdiction for this case is not triggered if CBP fails to act in the two year period.

Chinese producers challenged the International Trade Administration’s 2006 less-than-fair-value determination on diamond sawblades and parts thereof from China: the use of “zeroing” (the elimination of non-dumped transactions from the margin calculation), the choice of a particular Indian surrogate firm for expense and profit ratios, and the valuation of steel inputs. Domestic producers challenged the ITA’s country-of-origin determination and the award of a separate rate to Advanced Technology & Materials Co. Ltd. and its affiliates (ATM), but the Court of International Trade dismissed all complaints except the steel valuation and the separate rates decision, both of which it remanded to the ITA.

The Office of the U.S. Trade Representative announced that China has requested a World Trade Organization dispute settlement panel on the International Trade Administration's use of “zeroing” in its antidumping less than fair value (LTFV) final determinations and orders for certain frozen and canned warmwater shrimp from China and for diamond sawblades and parts thereof from China.

In 2006, the International Trade Administration published a determination of dumping margins in the less-than-fair-value investigation of diamond saw blades and parts thereof from Korea; however, the order was recently revoked in an ITA section 129 determination, due to an adverse panel report from the World Trade Organization on the use of zeroing in the ITA’s calculations (zeroing is omitting non-dumped sales from the overall margin calculation). Despite this, the Court of International Trade agreed with the Diamond Sawblades Manufacturers’ Coalition that domestic producers risked irreversible damage from Korean entries, and that they had some likelihood of success in their litigation over the ITA’s methods in the investigation. Accordingly, the court granted an injunction to delay liquidation of entries of Korean diamond saw blades, for which liquidation has been suspended since January 23, 2009. (Slip Op. 11-137, dated 11/03/11)

The Court of International Trade has ruled in the test case Airflow Technology, Inc., v. U.S., that Sperifilt air filter media is properly classified as a duty-free nonwoven in HTS heading 5603 and not a textile fabric or article under heading 5911 as argued by Customs. The CIT stated that the Sperifilt is not classifiable in heading 5911 because, according to Chapter 59 Note 7, the Sperifilt is not a "textile fabric", is not similar to textile fabrics used for card clothing, and is not a "textile article."

The Court of International Trade has ruled in The Container Store v. U.S., that the elfa® system of top tracks and hanging standards is classifiable as duty-free unit furniture under heading 9403, and not as other mountings for furniture in heading 8302. Using reasoning from a recent Appeals Court decision, the CIT explained that because the elfa® is designed to be hung, it falls within an exception that includes it in the heading 9403 definition of furniture, and because of its versatility, it is qualified to be considered 9403 unit furniture.

The Court of International Trade has ruled that Ford Motor Company can continue its lawsuit claiming that CBP does not have the authority to reopen 17 drawback entries from 1996-1998 that were "deemed liquidated" one year after they were filed. CBP had wanted the court to dismiss Ford's case, stating that it had the authority to review and then "affirmatively liquidate" them.

The Court of International Trade has ruled in a test case, Firstrax, Div. of United Pet Group, Inc., v. U.S., that certain soft crates for pets are classifiable as made up (textile) articles in heading 6307 and not as cases in heading 4202 as classified by Customs. The CIT explained that the soft crates did not meet the four essential characteristics of the goods listed in heading 4202; they did not (1) organize, (2) store, (3) protect, and (4) carry various items.