Court of International Trade

On April 4, 2011, the Court of International Trade agreed to consolidate for trial, two actions¹ on whether approximately 70 entries of peanut products imported into the U.S. from Mexico between December 2005 and October 2006 were entitled to preferential duty treatment under the North American Free Trade Agreement (NAFTA).

In a previous remand order on the final results of the December 2006 -- November 2007 antidumping administrative review of certain welded stainless steel pipes from Korea, the Court of International Trade granted the International Trade Administration’s request for a voluntary remand to assess the use of steel specifications in addition to steel grades in its cost analysis, and also directed the agency to reconsider its attempt to use quarterly indexing to derive average costs for steel components in a period of strongly fluctuating nickel values.

Dongbu Steel Co., Ltd. and Union Steel Manufacturing Co., Ltd., Korean steel producer/exporters, challenged the ITA’s use of zeroing¹ in the August 2004 -- July 2005 antidumping duty administrative review of corrosion-resistant carbon steel flat products from Korea. Between the review’s preliminary results and the March 20, 2007 final results determination, the ITA ceased the practice of zeroing in AD investigations but maintained it in reviews. When Dongbu and Union challenged the ITA’s continued use of zeroing in AD administrative reviews, the Court of International Trade upheld the practice, and Union appealed.

In a case involving furniture producer Standard Furniture Manufacturing Co., Inc.’s claim that it was entitled to potentially collect Byrd Amendment distributions of antidumping duties collected under the AD duty order on wooden bedroom furniture from China prior to the 2006 repeal of the Continued Dumping and Subsidy Offset Act of 2000 (Byrd Amendment), the Court of International Trade ruled that Standard has the right to amend its complaints to make them uniform and to take additional time to prepare responses to the government’s arguments. Standard is arguing that the government acted inconsistently, and that various features of the Byrd Amendment are unconstitutional. (Slip Op. 11-32, dated 03/23/11)

An importer of scaffolding pieces sought to exclude its products from the scope of the antidumping and countervailing duty orders in circular welded carbon quality steel pipe from China, citing an exclusion for “finished scaffolding” that the International Trade Administration wrote into the AD and CV duty orders. However, after a voluntary remand the ITA again found the scaffolding imported by Constantine N. Polites & Co. to be covered by the orders. In response to the importer’s renewed challenge, the Court of International Trade issued a second remand instructing the ITA to provide evidence to support its assertion that “finished scaffolding” means scaffolding kits, or provide a definition. (Slip Op. 11-31, dated 03/23/11)

When a former TV receiver maker, Five Rivers Electronics Innovation LLC, sought a share of the duties distributed by U.S. Customs and Border Protection for fiscal year 2009 on color television receivers from China under the Continued Dumping and Subsidy Offset Act of 2000 (aka the Byrd Amendment), CBP denied the certification because the firm no longer produced any sets in 2009. The manufacturer sued, arguing that “[t]o force a company that has been injured by the dumped imports to continue to produce subject product especially in the face of continued dumping and other harsh economic conditions, not only defies logic but is contrary to the purpose behind the law.” However, the Court of International Trade ruled that Congress, through the CDSOA statute, “explicitly favored domestic producers who remain in production,” and dismissed the complaint. Note that the CDSOA was repealed in 2006. (Slip Op. 11-28, dated 03/14/11)

A Turkish producer/exporter of welded carbon steel pipe and tube asked the Court of International Trade to delay decisions in the company’s current suit over the final results of the antidumping duty administrative review for the period May 1, 2008 through April 30, 2009. The Turkish company, Borusan Mannesmann Boru Sanyi ve Ticaret A.S., argued that appeals of other cases now before the Court of Appeals for the Federal Circuit (including the Saha Thai case) may affect its challenge of two practices of the International Trade Administration: the inclusion of unpaid import duties in production cost calculations, and “zeroing” (counting only transactions with positive dumping margins and omitting non-dumped sales) in the calculation of weighted averaged dumping margins. The CIT ruled that the appeals court had not yet precisely addressed the zeroing question in the circumstances applicable to Borusan, and issued a stay pending the exhaustion of the right of appeal in the two cases bearing on Borusan’s challenges. (Slip Op. 11-30, dated 03/22/11).

On February 14, 2011, the Court of Appeals for the Federal Circuit issued a decision upholding the calculation methods of the International Trade Administration in a court remand over an antidumping administrative review of circular welded carbon steel pipes and tubes from Thailand for the period March 2006 - February 2007 (the decision upheld the ITA’s accounting for duty drawbacks on imported components, among other issues). Subsequently the parties to the litigation filed motions to proceed with liquidation of the merchandise, indicating no party intended to appeal the matter further. However, the Court of International Trade ruled that it could not modify the injunction against liquidation that is still in place, until the CAFC formally issues its mandate. (See ITT’s Online Archives or 02/18/11 news, 11021817, for BP summary of CAFC decision upholding duty drawback adjustments for Saha Thai.) (Slip Op. 11-29, dated 03/22/11)

In Ford Motor Company v. the U.S., the Court of Appeals for the Federal Circuit reversed a CIT decision, ruling that so long as an importer's claim for post-entry duty refunds for NAFTA preferential treatment of imports was timely filed within one year of importation, the Court of International Trade has jurisdiction to consider whether Customs should accept Ford’s late-filed NAFTA Certificates of Origin.

The Watanabe Group asked the Court of International Trade to reconsider and vacate its decision upholding the ITA’s assignment of the China-wide rate of 258.21% in the antidumping duty administrative review of certain lined paper products from China for the period September 2007 through August 2008.