Court of International Trade

In its January 1 - June 30, 2009 investigation of narrow woven ribbons with woven selvedge from China, the International Trade Administration assigned to Yangzhou Bestpak Gifts & Crafts Co., Ltd. a separate AD duty rate that was based on the average of the rates calculated for the two largest volume exporters, one of whom got 0% while the other, which did not cooperate, got a rate of 247.65%. The Court of International Trade confirmed that the ITA was authorized to calculate the rate for non-reviewed companies in this way, but found the agency then failed to show that the resulting 123.83% separate rate reasonably reflected Bestpak’s “potential dumping margin.” The Court ruled the ITA must relate the assigned rate to the firm’s commercial activity, for example, by providing information suggesting that Bestpak dumps its sales at such levels, and remanded the issue to the agency to explain or revise the rate for Bestpak. (Slip Op. 11-90, dated 07/26/11)

An importer had sought a scope ruling from the International Trade Administration to determine whether scaffolding tube kits would be excluded from the scope of the AD order on circular welded carbon quality steel pipe from China, under the order’s exclusion for “finished scaffolding,” but the ITA concluded the kits do not qualify for the exclusion. On remand from the Court of International Trade, the ITA again concluded that Constantine Polites’ scaffolding tubes fail to meet the definition of “finished scaffolding” in the order’s exclusion because the kits require the addition of other components after importation, before they can be used as scaffolding. The CIT upheld the agency’s determination that Polites’ kits must therefore be included in the scope of the order. (Slip Op. 11-91, dated 07/28/11)

Two Japanese producers challenged the redetermination results of a Court of International Trade remand in the sixteenth AD administrative review of ball bearings and parts thereof from France, Germany, Italy, Japan and the United Kingdom, for the period May, 2004 through April 2005. As it had in the final review results, the International Trade Administration used zeroing (excluding non-dumped price differences in the weighted average dumping margin calculation). The CIT ordered the agency to reconsider that decision and to revisit as well its rejection of one respondent’s proposal to include additional bearing design types in the model match. (Slip Op. 11-92, dated 07/29/11)

Atar, S.r.L. challenged the finding by the International Trade Administration, in a reversal from prior reviews, that Atar did not qualify as a “tolling” manufacturer of pasta imports from Italy and therefore, did not qualify for its own AD duty rates. (A tolling producer uses subcontractors but arranges the sale.) Instead, after a voluntary remand, the ITA assigned to Atar‘s reported imports in the July 2005 -- June 2006 AD administrative review of pasta from Italy the rates it calculated for the individual Italian subcontractors that had produced the subject merchandise. The Court of International Trade agreed with the ITA, citing among other factors the agency’s “reseller policy,” under which, if producers such as Atar’s subcontractors are aware of the destination of a sale by a reseller, the ITA will find that the producer set the price of sale, and will assess the AD duty based on that producer’s rate. (Slip Op. 11-87, dated 07/22/11)

The Court of International Trade has ruled in Ocean Duke Corporation v. U.S., that the time limit to file suit for relief from enhanced continuous bond requirements that were applied to shrimp imports subject to AD/CV duties began when CBP required Ocean Duke Corporation to post the higher, enhanced bonds, and not when CBP denied Ocean Duke's requests to cancel them.

Domestic manufacturers challenged the determination by the International Trade Commission that the wire decking industry was not injured or threatened by imports from China from 2006 to 2009, during a contracting U.S. building market. In its preliminary finding, the ITC found “a causal nexus between the subject imports and the deteriorating condition of the domestic industry,” but later the Commission concluded the industry’s difficulties were due to other economic factors, notably declining demand and the availability of substitute products. Two ITC Commissioners dissented, arguing that the U.S. industry was being injured by Chinese imports. However, the Court of International Trade upheld the ITC’s majority determination, finding that in the face of credible evidence on both sides of the issue, the agency’s analysis was not unreasonable. (Slip Op 11-81, dated 07/12/11, public version posted subsequently)

Five Chinese producer/exporters challenged the final results of the International Trade Administration’s Second Remand Determination in the November 2002 -- October 2003 AD administrative review of fresh garlic from China, contesting the agency’s wage rate calculation and packaging materials values. The ITA also requested a voluntary remand to recalculate the labor wage rate. The Court of International Trade ordered the ITA to revisit its valuations of the labor rate, and ordered the agency to reconsider its insistence on using “admittedly non-representative” published Indian import values for packing materials (cardboard cartons, plastic jars and plastic jar lids), rather than documented price quotes from Indian vendors for comparable items. (Slip Op. 11-88, dated 07/22/11)

Pursuant to a final and conclusive court decision, the International Trade Administration is amending its revocation of the antidumping and countervailing duty orders on hard red spring wheat from Canada (A-122-847 and C-122-848) and will issue AD/CV liquidation and cash deposit refund instructions to U.S. Customs and Border Protection for all unliquidated pre-January 2, 2006 entries.

Italian producer Garofalo S.p.A. challenged the International Trade Administration’s use of quarterly, or three-month, periods for cost averaging and sales price comparisons between the U.S. and home markets in the July, 2007 -- June 2008 AD administrative review of certain pasta from Italy. U.S. producers objected to the ITA’s announced plan to introduce a new model match methodology in future reviews, and to the use of company-specific model-match criteria in the concluded 2007-2008 review. The Court of International Trade ruled that it was premature to challenge the agency’s future model match approaches, but affirmed the 2007-2008 final results of review in all respects. (Slip Op. 11-65, dated 06/08/11, public version posted subsequently.)

Chinese producers and exporters challenged the International Trade Commission’s finding of material injury to the domestic industry as a result of a “large and increasing volume of subject imports” and a “cost-price squeeze,” in the investigation of citric acid and certain citrate salts from Canada and China. The Court of International Trade found the ITC’s findings were supported by substantial evidence and affirmed the Commission’s final determination. (Slip Op. 11-53, dated 05/11/11, public version posted subsequently.)