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.
Corporate officers can’t normally be held liable for their corporations’ negligent misstatements on entry documentation, said the Court of Appeals for the Federal Circuit July 30, reversing a lower court ruling. The Court of International Trade had in 2011 found Harish Shadadpuri liable for criminal penalties under 19 USC 1592 because of his actions as president of Trek Leather, which had admitted gross negligence in its failure to declare assists when valuing merchandise (see 11062115). CAFC said the lower court shouldn’t have, because only the importer of record (in this case Trek) can be held to the reasonable care standard for negligence purposes. To get a Section 592 conviction against a corporate officer, the government either has to “pierce the corporate veil” or allege fraud, CAFC said.
In a tariff classification case on clocks that forecast the weather (or meteorological instruments that tell the time), the Court of Appeals for the Federal Circuit on July 25 voided the judgments of both the lower court and CBP, finding in favor of importer La Crosse Technology. The dispute centered on whether the devices should be classified as clocks, thermometers/barometers/hygrometers, or meteorological instruments. CBP had said they’re all clocks, while the Court of International Trade had classified various models in each of the three categories. La Crosse on appeal argued the devices should all be classified as meteorological instruments because that subheading fully describes them. The appeals court agreed, but for different reasons.
The Court of Appeals for the Federal Circuit rejected a test used by the Commerce Department to determine if items covered by antidumping duty orders, but included in non-subject sets, are subject to AD duties. But while it found fault with the particulars of the test Commerce used to see whether Target’s nails are included under the AD duty order on China, the appeals court reversed a 2012 Court of International Trade ruling that said Commerce wasn’t allowed to perform any test at all on the “mixed media items.” Instead, the appeals court put forward its own test for when this issue arises, both in this Target case and in future cases, and appealed to Commerce to clearly define its mixed media analysis procedures for future cases.
A listing of recent antidumping and countervailing duty messages from the Commerce Department posted to CBP's website July 9, along with the case number(s) and CBP message number, is provided below. The messages are available by searching for the listed CBP message number at addcvd.cbp.gov. (CBP occasionally adds backdated messages without otherwise indicating which message was added. ITT will include a message date in parentheses in such cases.)
A listing of recent antidumping and countervailing duty messages from the Commerce Department posted to CBP's website July 5, along with the case number(s) and CBP message number, is provided below. The messages are available by searching for the listed CBP message number at addcvd.cbp.gov. (CBP occasionally adds backdated messages without otherwise indicating which message was added. ITT will include a message date in parentheses in such cases.)
The Court of Appeals for the Federal Circuit affirmed the dismissal of a challenge to the allocation of 2006 U.S.-Canada Softwood Lumber Agreement funds. The agreement ended a countervailing duty order on softwood lumber from Canada by, in part, requiring Canada to distribute $500 million to the Coalition for Fair Lumber Imports (CFLI). A group of non-CFLI domestic producers said compensating CFLI to the exclusion of other domestic producers is discriminatory, contrary to the underlying law, and improperly delegates distribution authority to the CFLI for funds that should have been distributed by the government. The Court of International Trade dismissed in April 2012 (see 12042048), and CAFC found the lower court was correct July 1. The distribution scheme had a rational basis for discriminating because it was meant to solve a trade dispute the CFLI was heavily involved in, CAFC said. And the underlying law was so broad as to give USTR the discretion to agree to distribution to CFLI. USTR didn’t delegate authority to CFLI to distribute the funds either, because it agreed to the distribution method, CAFC said.
The Court of Appeals for the Federal Circuit affirmed a lower court ruling in favor of the 2008-09 antidumping duty administrative review on laminated woven sacks from China (A-570-916). Shapiro Packaging challenged the Commerce Department’s decision to assign respondent Zibo Aifudi a higher China-wide rate because of its decision to stop participating midway through the review, which meant Commerce couldn’t verify the company’s submissions on independence from government control. But the appeals court on June 24 said no law prohibits Commerce from disregarding information it can’t verify, and affirmed.