Recent Court Cases on International Trade for August 5, September 2-9, 2008
The following Court of Appeals for the Federal Circuit (CAFC) and Court of International Trade (CIT) cases on international trade issues were dated or decided during the period of September 2-9, 2008:
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CAFC Reverses CIT, Agrees with Importer on Classification of Breath Freshener
The CAFC has overruled the CIT and agreed with the importer that Gel-A-Mint MagikStrips, a breath-freshening product, is correctly classified as other preparations for oral or dental hygiene under HTS 3306.90.00, rather than 2106.90.99, a catch-all provision for other food preparations. (Drygel, Inc. v. U.S., CAFC 2008-1101, dated 09/09/08, available at http://www.cafc.uscourts.gov/opinions/08-1101.pdf)
CIT Rules Against Hong Kong Clothing Importer on Two Claims
In this ruling of partial summary judgment, the CIT examined two issues involving U.S. Customs and Border Protection's decision that additional documents supplied to support the Hong Kong origin declaration for certain men's clothing were falsified. In this short ruling, the CIT upheld CBP's processes and procedures, ruling, among other things, that it did not violate the importers' constitutional due process rights or the principles of administrative law. (Western Power Sports, Inc. v. U.S., CIT Slip Op. 08-93, dated 09/09/08, available at http://www.cit.uscourts.gov/slip_op/Slip_op08/Slip%20Op%2008-93.pdf)
CIT Upholds ITA's Data Request in AD Final Determination on PSF from China
With respect to the final antidumping duty determination of polyester staple fiber (PSF) from China, the CIT has upheld the legitimacy of the International Trade Administration's (ITA's) request for price and other information for each color (white, brown, green) of recycled Polyethylene terephthalate (PET) bottle flake used by "Ningbo" to make PSF. (Ningbo Dafa Chemical Fiber Co., Ltd., et al. v. U.S., et al., Slip Op. 08-89, dated 09/02/08, available at http://www.cit.uscourts.gov/slip_op/Slip_op08/Slip%20Op%2008-89.pdf)
CIT Upholds ITA Remand Decision for AD Review of PSF from Korea
In 2007, the CIT remanded the final results of the fifth administrative review of the AD duty order on PSF from Korea, as the CIT questioned the ITA's reasoning for using 'facts available' to fill in missing market price data, when it did not do so in the prior reviews. On remand, the ITA gave a reasoned explanation for this change in treatment, and the CIT sustained the remand results. (Huvis Corp. vs. U.S., et al., Slip Op. 08-83, dated 08/05/08, available at http://www.cit.uscourts.gov/slip_op/Slip_op08/Slip%20Op.%2008-83%20nonconfidential.pdf)
CIT Upholds ITC's 4th Remand Decision of No AD Injury for Ferrosilicon from Six Countries
In this case, the CIT upheld the International Trade Commission's fourth remand AD determination regarding ferrosilicon from Brazil, China, Kazakhstan, Russia, Ukraine, and Venezuela, that the U.S. ferrosilicon industry was neither injured nor threatened with material injury by reason of imports of subject merchandise from foreign companies. (Elkem Metals, Co., et al. v. U.S., Slip Op. 08-92, dated 09/05/08, available at http://www.cit.uscourts.gov/slip_op/Slip_op08/08-92.pdf)
CIT Declines to Reconsider Remand Results for AD Review of Pasta from Italy
The CIT has denied plaintiff PAM, S.p.A.'s request that the Court reconsider its judgment which sustained the ITA's remand results of the sixth administrative review of the AD order on certain pasta from Italy, which assigned PAM, S.p.A. a 45.49% dumping margin. (PAM, S.p.A. et al. v. U.S., et al., Slip Op. 08-94, dated 09/09/08, available at http://www.cit.uscourts.gov/slip_op/Slip_op08/08-94.pdf)