Agreements to limit rail carrier liability must be explicit and in writing, and not just adopted by reference in a bill of lading, said the Fourth U.S. Circuit Court of Appeals, as it sent back down a lower court’s ruling. The Eastern North Carolina District Court had ruled that CSX was only liable for $25,000 of the $550,000 in damage to shipper ABB’s electrical transformer that occurred in transit from St. Louis to Pittsburgh. The bill of lading associated with the shipment had been drafted by ABB instead of CSX, and in any case referenced a CSX “tariff” that limited carrier liability to $25,000, the district court reasoned. Therefore, it met an exception to the Carmack Amendment’s strict requirement for rail carriers to bear full liability for damages to goods in transit. But the appeals court said the identity of the drafter of the bill of lading is irrelevant for Carmack Amendment purposes, and incorporation of a tariff by reference does not meet the written agreement standard for waiving liability set forth in the law.

The Court of International Trade again remanded the final results from the 2007-08 antidumping administrative review of tapered roller bearings from China (A-570-601). The court had remanded in late 2011 on Commerce’s surrogate values used to determine Peer Bearing Company-Changshan’s (CPZ) AD rate, as well as its country of origin determination that finished bearings processed in and exported from Thailand from Chinese-origin unfinished bearings are subject merchandise (see 11112218). On remand, CIT sustained the agency’s redeterminations of the surrogate values at issue, which caused CPZ’s AD rate to fall from 24.62 to 7.37 percent. But it rejected Commerce’s insistence on continuing to find the country of origin for the Thai-finished roller bearings as China and not Thailand.

The U.S. Court of Appeals for the Federal Circuit overturned an International Trade Commission decision to end a Section 337 patent investigation of infringement by LG so that the case could go to arbitration with patent holder InterDigital. LG had said it held a license for the patented technology at issue, and the commission found that a plausible basis for arbitration. Both the ITC and LG argued that the appeals court had no jurisdiction to hear the case, because termination for arbitration is not listed as subject to appeal under the governing statute, 19 USC 1337. But the appeals court found that termination of a Section 337 investigation for arbitration is in effect an appealable final determination, even though it isn’t enumerated in the statute. Turning to whether LG had grounds to request arbitration, the appeals court found that the portion of the agreement governing the license on 3G technology had expired, so LG had no right to assert a right to arbitration over the license.

U.S. Court of Appeals for the D.C. Circuit overturned a lower court ruling June 7 that would have compelled the U.S. Trade Representative to release a white paper describing the U.S. interpretation of the phrase “in like circumstances” for the purposes of national treatment and most favored nation free trade agreement provisions. The document was used in negotiations for the ill-fated Free Trade Agreement of the Americas. The D.C. District Court had said the white paper does not meet a Freedom of Information Act exemption for documents related to national defense foreign policy, because the USTR did give a good enough explanation of why release of the white paper would have created a foreign policy risk. But on appeal, the D.C. Circuit said USTR’s explanation that release of the document would harm future negotiations was plausible, and reversed.

The Court of International Trade remanded parts of the 2008-09 countervailing duty administrative review on citric acid from China (C-570-938) related to Commerce’s calculation of inputs for less-than-adequate remuneration (LTAR) subsidies for RZBC. The court found that Commerce didn’t adequately explain its non-decision on a steam coal LTAR subsidy, and didn’t consider some evidence on pricing benchmarks it used to measure LTAR subsidy amounts.

The Court of International Trade again remanded the final results of the 2008-09 antidumping duty administrative review on folding metal-top ironing tables from China (A-570-888). CIT’s first remand in August, which was not published as a slip opinion, focused on Commerce’s cotton fabric surrogate value calculation, financial statement selection, and brokerage and handling calculations for respondents Since Hardware and Foshan Shunde. This time, the court sustained some elements of Commerce’s remand redetermination, but again remanded for Commerce reconsideration of financial statement selection and brokerage and handling calculations.

The 30-day period to challenge scope rulings in court begins on the date the scope ruling is mailed by the Commerce Department, and is not triggered by email communications, said the Court of International Trade as it dismissed Medline Industries’ challenge. Medline had filed suit after Commerce emailed its lawyer a copy of the adverse scope ruling on wooden bedroom furniture from China. But the snail mail scope ruling from a month later actually triggered the period for filing suit, even though Commerce had allegedly misrepresented that no physically mailed scope ruling would be forthcoming. The case will proceed regardless, as Medline filed a separate challenge following its second receipt of the scope ruling. The company expressed concern, however, at the cost of having to appeal this dismissal of its first suit to protect itself from a jurisdictional challenge.

A Chinese national pleaded guilty to attempting to export five tons of weapons-grade carbon fiber to China, a plot discovered through undercover work by U.S. agents, the Department of Justice announced May 30. Lisong Ma, 34, faces up to 20 years in prison, forfeiture and a $1 million fine. In February, Ma emailed an undercover agent and indicated he was interested in acquiring several types of high-grade carbon fiber, then attempted to negotiate the purchase of five tons of carbon fiber, the DOJ said in a statement. Such fiber is under Commerce Department jurisdiction; its two main applications are in specialized technology and in general engineering and transportation. The material sought by Ma is used in military aircraft and unmanned aerial vehicles.

The Court of International Trade upheld a Commerce Department ruling that found magnesia alumina carbon bricks to be within the scope of the antidumping and countervailing duty orders on magnesia carbon bricks (A-570-954 / C-570-955). CIT agreed with Commerce that the magnesia alumina carbon bricks (MACBs) meet the scope’s plain language and are interchangeable with in-scope magnesia carbon bricks (MCBs). CIT also said Commerce acted reasonably in using 19 CFR 351.225(k)(2) factors to determine whether MACBs were covered under the scope, since (k)(1) evidence was ambiguous. Fedmet Resources Corporation, the steel and high temperature product company that appealed Commerce’s scope ruling, argued the final scope evidence was insufficient. Fedmet also said the steel industry considers MACBs distinct products from MCBs. CIT, however, said the characteristics MACBs exhibit due to spinel -- a mineral created when the bricks are heated which improves brick performance -- are the same as characteristics of in-scope MCBs that set it apart from other refractory products. Commerce also correctly interpreted the manner of MACB advertisements and the ultimate use of low-alumina MACBs in its scope ruling, CIT said.

The Court of International Trade sustained a Commerce Department scope ruling that found Power Train Components’ wheel hub units are covered by the scope of the antidumping duty order on tapered roller bearings from China (A-570-601). CIT agreed with the agency that the wheel hub units without antilock braking (ABS) sensors are covered by the scope language addressing “tapered roller housings … whether or not for automotive use.” In support, the court noted that the ITC injury report from the investigation identified wheel hub units as a type of tapered roller bearing, and depictions of wheel hub units were included in the original petition. The court then looked at Commerce’s determination that Power Train’s wheel hub units incorporating ABS sensors are within the scope, and found Commerce’s analysis of each of the 19 CFR 351.225(k)(2) factors -- physical characteristics, expectations of ultimate purchasers, ultimate use, channels of trade, and manner of display and advertising -- to be reasonable.