The standard under which the Court of Appeals for the Federal Circuit reviews some antidumping and countervailing duty cases from the Court of International Trade may be causing a lack of uniformity in appeals court decisions and a lack of predictability for litigants, said five judges from CAFC and CIT during a panel discussion Nov. 21. CAFC Chief Judge Randall Rader and Judges Jimmie Reyna and Evan Wallach, as well as CIT Chief Judge Donald Pogue and Judge Timothy Stanceu participated in the discussion, hosted by the Federal Circuit Bar Association and the Customs and International Trade Bar Association. Hot on the heels of a dissent where Rader, Reyna and Wallach questioned CAFC's practice of taking a fresh look at many CIT cases instead of deferring more to the lower court's expertise, all five judges discussed whether the review standard is due for a change.
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The U.S. Court of Appeals for the Federal Circuit affirmed on Nov. 5 a lower court ruling on the tariff classification of hole punches for paper scrapbooks. As the Court of International Trade had done in September 2012 (see 12100102), the appeals court held Wilton Industries’ “Stampin’ Up!” hole punches should be classified as “perforating punches” under Harmonized Tariff Schedule heading 8203, rather than Wilton’s preferred classification as paper cutting machines under heading 8441. The former heading exactly describes Wilton’s hole punches, while the latter is reserved for paper manufacturing machinery, CAFC said.
An otherwise routine order exposed a split at the Court of Appeals for the Federal Circuit on how it should review decisions by the Court of International Trade. The appeals court on Oct. 25 rejected a request to rehear an antidumping duty case where CAFC in May effectively reinstated AD duties on ball bearings from The United Kingdom and Japan (see 13051716). In its May decision, CAFC reversed a series of CIT decisions going back seven years. CAFC Chief Judge Randall Rader, along with Judges Evan Wallach and Jimmie Reyna -- both of whom have trade law experience -- dissented from CAFC’s decision not to rehear the case. They said CAFC should depart from its current standard of how it reviews CIT decisions, and defer more to the lower court’s expertise on trade. But the majority of five CAFC judges disagreed. A stricter standard of review would run contrary to how every other federal appeals court looks at district court cases, they said.
The Court of International Trade sustained the Commerce Department’s decision to assign Jiangsu Jianghai Chemical an “above de minimis” antidumping duty rate -- but not calculate exactly what that rate may be -- in the original AD duty investigation of 1-Hydroxyethylidene-1, 1-Diphosphonic Acid (HEDP) from China. The Commerce determination came on Court of Appeals for the Federal Circuit remand, after the appeals court had ruled against the agency’s adverse facts available (AFA) rate for Jiangsu Jianghai despite the company’s cooperation.
The U.S. Court of Appeals for the Federal Circuit began allowing electronic payment of court fees Sept. 16, according to the court’s website. The new system links the court’s CM/ECF filing system with pay.gov, and will remain temporary and optional until CAFC is sure it works. The following payments may be made electronically:
The U. S. Court of Appeals for the Federal Circuit affirmed on Sept. 16 a lower court decision that found Del Monte’s tuna product, packed in small amounts of oil, should nonetheless be classified in the Harmonized Tariff Schedule as having been packed “in oil.” The Court of International Trade had in October said the amount of oil was irrelevant for classification purposes, because neither the HTS nor prior court rulings set a minimum threshold for what it means to be packed “in oil” (see 12101601). CAFC agreed, finding it unnecessary to look beyond the terms of the tariff schedule. The Appeals Court also upheld CIT’s ruling on valuation “formulas.”
The Court of Appeals for the Federal Circuit upheld the original calculations by the Department of Commerce of the profit cap applicable under 19 U.S.C. § 1677b(e)(2)(B)(iii) to merchandise sold by Italian exporter Atar S.r.l. ("Atar") in the ninth administrative review of an antidumping duty order directed to certain Italian pasta products, it said in a Sept. 11 decision. The Court of International Trade had rejected those calculations, causing Commerce to revise its determination, eventually including above--and below--cost sales made by profitable and unprofitable respondents in the prior administrative review to satisfy the trade court's remand orders. The CAFC concluded that Commerce's original profit cap calculation was reasonable.
The Court of Appeals for the Federal Circuit affirmed the dismissal of a bid by Ashley Furniture and Ethan Allan for funds under the Continued Dumping and Subsidy Offset Act (CDSOA, also known as the Byrd Amendment). The two domestic furniture companies argued they were eligible for antidumping and countervailing duties paid under the wooden bedroom furniture from China orders, simply because they responded when the International Trade Commission asked whether they supported the original AD/CVD petitions. Ashley Furniture had answered that it opposed the petition, while Ethan Allan checked the box for “take no position.” According to the two companies, any sort of response qualified as support because it helped the ITC in the investigation. Like the Court of International Trade, the appeals court rejected the argument. Although in a similar case the court had ruled Chez Sidney qualified for CDSOA funds even though it took no position in the final phase questionnaire, that case was different because Chez Sidney checked the box for support of AD/CV duties during the preliminary phase, CAFC said.
The U.S. Court of Appeals for the Federal Circuit reversed on Aug. 19 the Court of International Trade’s dismissal of an antidumping duty lawsuit on steel nails from China. The lower court had declined to rule on Itochu Building Products’ challenge to the revocation date for four types of nails, citing a failure to fully argue its case before Commerce. Itochu had only argued for an earlier revocation date before the preliminary results of the changed circumstances review, and not in the run-up to the final results, so it didn’t exhaust its administrative remedies, CIT had said (see 12092127). But the appeals court reversed on Aug. 19, because submitting comments after Commerce had already rejected Itochu’s arguments at the preliminary stage would have served no purpose, and actually would have harmed the company.
International Trade Today is providing readers with some of the top stories for July 29-Aug 2 in case they were missed.