The Court of Appeals for the Federal Circuit withdrew the portion of its February ruling in General Electric v. International Trade Commission that criticized the ITC’s removal of certain issues from judicial review in Section 337 patent proceedings. In its February ruling, CAFC had said the ITC’s practice of giving notice it would review an aspect of an administrative law judge’s determination, and then taking “no position” on that particular aspect of the determination, did not entitle the ITC to remove an issue from judicial review. The ITC had justified this practice by saying that taking no position on an issue removes an issue from judicial review because in such cases the agency ruling is not final. However, CAFC had said in its February ruling that taking no position on an issue is the same as not reviewing the issue and adopting as final, and subject to judicial review, the ALJ’s determination. Consequently, CAFC in February remanded the issues that the commission had taken no position on, namely infringement and validity of a patent that was covered in the ITC’s investigation in certain variable speed wind turbines and components thereof (337-TA-641).
The Court of International Trade sustained the International Trade Administration’s second redo of the final results from the 2004-05 administrative review of the antidumping duty order on heavy forged hand tools, finished or unfinished, with or without handles, from China (A-570-803). CIT had previously said the Adverse Facts Available (AFA) rates of (a) 139.31% applied to Shandong Huarong Machinery Co.’s sales of bars/wedges; and (b) 98.77% applied to Tianjin Machinery Import & Export Co.’s sales of picks/mattocks, were insufficiently corroborated. This time, CIT sustained the ITA’s recalculation of the AFA rates at (a) 47.88%, and (b) 32.15%, respectively, as sufficiently corroborated.
The U.S and China have adopted procedures for disputes regarding implementation of the World Trade Organization’s ruling against double counting in United States -- Definitive Anti-Dumping and Countervailing Duties on Certain Products from China (DS379). The procedures provide for 90-day periods for panel rulings and appellate body rulings, optional consultations, the suspension of concessions by China (which is not limited by the normal 30-day expiration date), and an arbitration period of 60 days.
The International Trade Administration’s determination not to apply Adverse Facts Available (AFA) to Plaintiff Tianjin Magnesium International Co., Ltd. (TMI) in the final results of its 2008-09 administrative review of the antidumping duty order on pure magnesium from China (A-570-832), despite knowledge that TMI had submitted falsified documentation to the ITA, was remanded to the ITA by the Court of International Trade for further proceedings. CIT agreed with Defendant-Intervenor U.S. Magnesium’s arguments, and said the ITA’s final results did not provide an adequate basis for its decision.
The Court of Appeals for the Federal Circuit granted petitions for a rehearing of GPX International Tire Corp. v. United States, in which CAFC ruled in December 2011 that countervailing duties may not be imposed on goods from China or other non-market economies (NME), in light of the new law upholding the application of CV duties to NME countries. CAFC remanded the case to the Court of International Trade to determine the legislation's constitutionality, in particular that of a "special rule" created by varying effective dates in the provision that, in this case,and according to CAFC "perhaps a few others," allow both antidumping and CV duties to be imposed without providing a mechanism to account for potential double counting.
The International Trade Commission rescinded a limited exclusion order and cease and desist orders in its section 337 patent investigation of certain semiconductor chips having synchronous dynamic random access memory controllers and products containing same (337-TA-661), on the basis of a settlement agreement and a Court of Appeals for the Federal Circuit remand.
The Court of Appeals for the Federal Circuit reversed the Court of International Trade’s affirmance of the International Trade Administration’s remand redetermination, which the ITA completed under protest, of its final results of its 2007 administrative review of the countervailing duty order on certain hot-rolled carbon steel flat products from India (C-533-821). CAFC said the CIT improperly exceeded its authority by requiring the ITA to reopen and supplement the record to admit untimely filed documentation when the Indian respondent and plaintiff, Essar Steel Limited, did not cooperate to the best of its ability.
The Court of Appeals for the Federal Circuit affirmed the Court of International Trade’s denial of plaintiff Ford Motor Company, Inc.’s claims of a refund of $2.65M in Harbor Maintenance Tax (HMT) paid on exports. CAFC agreed with CIT that Ford did not submit the proof of payment of export taxes required by the regulations for either pre- or post-July 1, 1990, refunds of HMT paid on exports. A dissenting judge said CIT improperly entered summary judgment in favor of CBP, and that the case should have gone to trial.
The Court of International Trade reconsidered its previous affirmance of the International Trade Administration’s use of zeroing methodology in the final results of the 2006-07 antidumping administrative review of certain corrosion-resistant carbon steel flat products from Korea (A-580-816), and ordered the ITA to submit a second remand redetermination to address the issue of zeroing.
The Court of International Trade dismissed claims by domestic plaintiffs Tampa Bay Fisheries, Inc. and Singleton Fisheries, Inc. arising from the U.S. International Trade Commission and U.S. Customs and Border Protection’s denial of monetary benefits under the Continued Dumping and Subsidy Offset Act of 2000 (CDSOA, or the “Byrd Amendment”). Tampa Bay and Singleton were not included on the ITC’s list of Affected Domestic Producers (ADPs) because of a failure to check the relevant boxes on an ITC questionnaire, and were therefore ineligible to receive Byrd Amendment distributions of antidumping duties collected under AD duty orders on certain frozen warmwater shrimp from Brazil, Thailand, India, China, Vietnam and Ecuador.