Court of International Trade

The Court of International Trade has denied BASF Corp.'s motion for summary judgment in a case concerning the classification of Betavits, mixtures containing synthetic beta-carotene. The CIT states that there are genuine issues of material facts as to whether such mixtures belong to the class of goods principally used as coloring matter, as argued by BASF, or provitamins, as classified by Customs.

Furniture Brands International, Inc. filed questionnaire responses for the International Trade Commission in 2005 opposing the issuance of an AD duty order on wooden bedroom furniture from China, but later sought a share of AD duties resulting from the order, under the Byrd Amendment (aka the Continued Dumping and Subsidy Offset Act of 2000 (CDSOA).

Chinese producer Hebei Foreign Trade and Advertising Corporation contested the final results of the International Trade Administration’s first AD administrative review of certain activated carbon from China, for the period October 11, 2006, through March 31, 2008. Finding that Hebei Foreign had failed to qualify for separate rate status because a sales agent, rather than a direct employee, had signed the separate rate questionnaire certifications, the ITA assigned the company the China-wide rate of 228.11%.

SKF USA Inc. and its overseas affiliates successfully contested the final results of the May 2007- April 2008 antidumping duty administrative review of ball bearings and parts thereof from France, Germany, Italy, Japan, and the UK, challenging the International Trade Administration’s use of zeroing (excluding all non-dumped sales transactions) in margin calculations and its “15-day rule” for issuing liquidation instructions following final determinations.

The International Trade Administration assigned an adverse facts available (AFA) rate and denied separate rate status to a Chinese producer/exporter (Foshan Shunde Yongjian Housewares & Hardware Co., Ltd.) in the August 2007 - July 2008 antidumping duty administrative review of floor-standing metal-top ironing tables and certain parts thereof from China. (Without separate rate status, the company would be subject to the China-wide rate, usually higher than a separately calculated rate).

Domestic manufacturer Nucor Fastener Division challenged the negative preliminary injury determination by the International Trade Commission in its January 2006 - June 2009 AD and CV duty investigations of certain standard steel fasteners (CSSF) from China and Taiwan, and the Court of International Trade remanded the determination to the agency. The court noted that the ITC had concluded that “there is no reasonable indication that an industry in the United States is materially injured or threatened…by reason of imports” of CSSF from China and Taiwan despite reports of lost revenues from five out of six U.S. producers surveyed. The court particularly faulted the ITC’s reliance on “manifestly incomplete import data” as “arbitrary, capricious, and an abuse of discretion,” noting that the agency’s statement that its limited import volume data were comprehensive was “a complete failure to consider an important aspect of the problem.” (Slip Op. 11-104, dated August 11, 2011, public version posted subsequently)

A Taiwanese producer/exporter challenged the International Trade Administration’s use of invoice date to define the dates of its U.S. sales in the May 2008 - April 2009 AD administrative review of certain circular welded steel pipes and tubes from Taiwan. Yieh Phui Enterprise Co. argued that few of its terms of sale changed after contract date and that in other, similar cases, the ITA used a date other than invoice date. However, the Court of International Trade agreed with the ITA’s “detailed, well-reasoned response” to each of Yieh Phui’s arguments, noting in particular that the agency observed frequent sales terms changes between contract date and invoice date. Accordingly, the court upheld the agency’s use of its standard sale-dating practice for Yieh Phui. (Slip Op. 11-107, dated August 24, 2011, public version posted subsequently)

The Court of International Trade has ruled that licensed customs broker Guillermo Lizarraga is entitled to reimbursement of attorney fees and other expenses after successfully challenging U.S. Customs and Border Protection's 2008 deactivation and suspension of his entry filer code for alleged misuse. The CIT states Lizarraga is entitled to reimbursement as CBP's¹ position was not substantially justified and because there are no special circumstances that make such an award unjust.

Chinese producers contested the International Trade Administration’s remand determinations for the November 2003 - October 2004 AD administrative review of fresh garlic from China, in which the agency markedly increased their dumping margins, to between 26.67% and 55.18%. The Court of International Trade faulted the agency for repeatedly choosing “admittedly distorted Indian import statistics over potentially ‘perfect’ price quotes,” and ordered it to recalculate costs for garlic bulbs, plastic jars and lids, and cardboard cartons, as well as labor costs, which the agency had acknowledged needed recalculation. See ITT’s Online Archives or 06/21/11 news, 11062120, for BP summary of the ITA’s new method of calculating the labor wage rate for non-market economies.) Slip Op. 11-119, dated 09/26/11)

Russian producer PSC VSMPO-AVISMA Corp. (together with affiliate VSMPO-Tirus, U.S., Inc.) elected to withhold its participation in the AD administrative review of magnesium metal from the Russian Federation for the period April 1, 2007 through March 31, 2008, and the International Trade Administration then assigned it an adverse AD duty rate of 43.58 percent, which the company argued was not connected to commercial reality. In response to remand instructions from the Court of International Trade, the ITA cited import statistics showing AVISMA’s U.S. prices during the period of review, at a time of a rising ruble value. The CIT concluded that the agency had sufficiently demonstrated that AVISMA could have dumped at a rate close to 43.58% and upheld that rate assignment. (Slip Op. 11-115, dated 09/15/11)