Court of International Trade

The Court of International Trade has ruled in National Presto Industries Inc., v. U.S., that an adult diaper making machine is properly classified under heading 8441 of the Harmonized Tariff Schedule, which specifically covers machines used for making up paper pulp articles, and not under the basket provision of heading 8479.

Arcelormittal Stainless Belgium N.V objected to the International Trade Administration’s ruling on the scope of the AD and CVD orders on stainless steel plate in coils from Belgium and whether it includes steel in coils with a nominal thickness of 4.75 millimeters but an actual thickness less than 4.75 mm. The ITA’s interpretation of the scope in this regard has varied at times, but now, the Court of International Trade has upheld the agency’s redetermination on remand that the 4.75 mm thickness measure applies to nominal dimensions allowing for agreed-upon tolerances. As a result of the ruling, stainless steel in coils with nominal thickness of 4.75 mm, but actual thickness less than 4.75 mm, now falls within the scope of the orders. (Slip Op. 11-82, dated 07/12/11)

The International Trade Administration is revoking the antidumping duty orders on ball bearings and parts thereof from Japan and the United Kingdom (A-588-804, A-412-801), pursuant to a court order that sustained a “no injury” determination and ordered revocation of the orders prior to completing additional reviews.

The Court of International Trade has ruled in The Pomeroy Collection, Ltd., v. U.S., that two glass components from Mexico are parts of articles (lamps) which are classifiable under Harmonized Tariff Schedule heading 9405 because the lamps could not function without the glass components and because the glass components are dedicated solely for use with the lamps.

Following the May 1993 - April 1994 AD administrative review period for ball bearings from Japan, the International Trade Administration issued liquidation instructions to U.S. Customs and Border Protection that included customer-specific liquidation rates for merchandise produced by Nankai Seiko Co. Importer Shinyei Corporation of America at first provided entry documents that did not list a U.S. end customer in a way readily decipherable by Customs, and Customs refused to consider invoices Shinyei subsequently gave that were dated after the entry date. Customs then did not liquidate the merchandise according to the ITA’s instructions, but at a higher rate. The Court of International Trade ruled that CBP erred in failing to automatically apply the customer-specific AD duty rate in the ITA’s liquidation instructions, and ordered CBP to refund the excess deposits to the company with interest. (Slip Op. 11-69, dated 06/15/11)

Japanese producers¹ appealed a ruling by the Court of International Trade upholding the final results of the May ’06 -- April ’07 AD administrative review of ball bearings and parts thereof from Japan, as to various aspects of model matching and the use of zeroing in the margin calculation (disregarding the value of non-dumped sales in the average dumping margin). The Court of Appeals for the Federal Circuit upheld all of the International Trade Administration’s model matching decisions but, citing its own recent decision challenging zeroing in Dongbu Steel Co. Ltd. v. United States, the CAFC remanded the zeroing issue to the CIT for further explanation by the ITA on why it is reasonable to use zeroing in reviews but not in investigations. (See ITT’s Online Archives or 04/04/11 news, 11040408, for BP summary of Dongbu decision challenging the continued use of zeroing)

In the third AD administrative review of floor-standing, metal-top ironing tables and certain parts thereof from China, the International Trade Administration discovered Chinese producer Since Hardware (Guangzhou) Co. Ltd. had provided falsified documents in that review as well as the two preceding reviews, which were still in litigation at the time. At the Court of International Trade, U.S. manufacturer Home Products International, Inc. lost a bid to overturn the results of the two preceding reviews in light of the false information discovered by the ITA. However, the Court of Appeals for the Federal Circuit overruled the CIT and directed it to issue a remand for a new second review; now the higher court has applied the same ruling to the earliest of the three successive reviews, covering the period February 3, 2004 through July 31, 2005. (See ITT’s Online Archives or 02/11/11 news, 11021110, for BP summary of prior court decision.) (Decision 2010-1194, decided 06/22/11)

In the third new shipper review of certain frozen fish fillets from Vietnam (covering the period August 1, 2007 through January 31, 2008 and producers Hiep Thanh Seafood Joint Stock Company and Asia Commerce Fisheries Joint Stock Company), the International Trade Administration determined that sales to a Mexican customer of Hiep Thanh stayed in the U.S. and should be counted as U.S. sales. The Mexican customer had trans-shipped some, but not all, of its purchases to Mexico, but Hiep Thanh claimed no knowledge of the U.S. destination. The Court of International Trade faulted the ITA for “too many internal inconsistencies and unexplained conclusions,” and in a new remand, it again ordered the agency to summarize the sales more clearly, and suggested the ITA provide an interpretation for the phrase “exportation.” (Slip Op. 11-74, dated 06/23/11)

A group of 43 U.S. softwood lumber producers not belonging to the Coalition for Fair Lumber Imports sued at the Court of International Trade for a share of the $500 million in export charges collected by Canada and distributed to Coalition members under the Softwood Lumber Agreement of October 12, 2006 (the 2006 SLA). However, the CIT declined to hear the case, claiming it did not have jurisdiction because the U.S. Trade Representative had entered into the SLA under the legal authority of a different section of the Trade Act of 1974 than the one that gives the CIT jurisdiction (section 2171, rather than the CIT’s section 2411). However, tracing the history of the softwood lumber dispute since 1986, the Court of Appeals for the Federal Circuit overturned the CIT and ruled that the 2006 SLA does indeed fall within the CIT’s statutory jurisdiction. While allowing that a different argument, not yet adjudicated, might still succeed in removing jurisdiction, the CAFC ordered the CIT to hear the case. (Decision 2010-1389, decided 06/28/11)

The Court of International Trade has ruled in CBB Group, Inc., v. U.S., that its consideration of cases involving "deemed exclusions" and its ability to order relief, if warranted, is not precluded by CBP's issuance of a Seizure Notice (as it was issued after the case was brought to court) or by the prospect that adjudication of claims will involve the application of copyright law.