Court of International Trade

On February 14, 2011, the Court of Appeals for the Federal Circuit issued a decision upholding the calculation methods of the International Trade Administration in a court remand over an antidumping administrative review of circular welded carbon steel pipes and tubes from Thailand for the period March 2006 - February 2007 (the decision upheld the ITA’s accounting for duty drawbacks on imported components, among other issues). Subsequently the parties to the litigation filed motions to proceed with liquidation of the merchandise, indicating no party intended to appeal the matter further. However, the Court of International Trade ruled that it could not modify the injunction against liquidation that is still in place, until the CAFC formally issues its mandate. (See ITT’s Online Archives or 02/18/11 news, 11021817, for BP summary of CAFC decision upholding duty drawback adjustments for Saha Thai.) (Slip Op. 11-29, dated 03/22/11)

In Ford Motor Company v. the U.S., the Court of Appeals for the Federal Circuit reversed a CIT decision, ruling that so long as an importer's claim for post-entry duty refunds for NAFTA preferential treatment of imports was timely filed within one year of importation, the Court of International Trade has jurisdiction to consider whether Customs should accept Ford’s late-filed NAFTA Certificates of Origin.

The Watanabe Group asked the Court of International Trade to reconsider and vacate its decision upholding the ITA’s assignment of the China-wide rate of 258.21% in the antidumping duty administrative review of certain lined paper products from China for the period September 2007 through August 2008.

Russian producer-exporter PSC challenged the International Trade Administration’s use of a 43.58% adverse antidumping duty rate in the April 2007 - March 2008 AD review of magnesium metal from Russia. PSC VSMPO-AVISMA Corporation and VSMPO-Tirus, U.S., Inc. (collectively, PSC) had withdrawn from the review, citing the burden of multiple verifications, among other causes.

On March 11, 2011, the World Trade Organization's Appellate Body (AB) reversed several findings of an October 2010 panel report on U.S. “double counting” of antidumping and countervailing duties on four products from China: certain new pneumatic off-the-road tires, laminated woven sacks, circular welded pipe, and light-walled rectangular pipe and tube (DS379).

In Estee Lauder Inc., v. U.S., the Court of International Trade ruled against U.S. Customs and Border Protection’s motion to dismiss the case, ruling that this court has jurisdiction despite some unclear facts in Lauder’s protest. The CIT stated that rather than allowing a “deemed denial” of Lauder’s request for accelerated disposition to occur, CBP should have sought the necessary factual evidence to evaluate the protest.

Union Steel Manufacturing Co, Ltd. of Korea sued over the final results of the August 2006 -- July 2007 AD administrative review of corrosion-resistant carbon steel flat products from Korea. Union challenged the International Trade Administration’s calculation of expense ratios; its model match using comparisons of painted products sold in the U.S. to both painted and laminated product sales in Korea; and its “zeroing” of U.S. sales sold at or above fair value (i.e., excluding non-dumped sales) when calculating the weighted average dumping margin. The Court of International Trade denied Union’s expense ratio and zeroing complaints, but granted the plaintiff’s request that the model-matching be reconsidered (the ITA also requested a voluntary remand on the question). (Slip Op. 11-18, dated 02/15/11)

Chinese exporters and domestic producers both challenged the final results of the January-December 2007 AD administrative review of wooden bedroom furniture from China, questioning the ITA’s respondent selections, fair value calculations, and adverse rate assignments, among other issues. The Court of International Trade remanded the case to the ITA to 1) consider assigning a separately calculated adverse rate to Orient International Holding Shanghai, rather than the 216.01% country-wide rate, since that rate “greatly exceeds“ the highest individually assigned rate of 29.89% (Orient had duly completed its separate rate questionnaire but later withdrew its cooperation from the review); 2) reconsider the choice of the best set of published prices for wood components; 3) adjust the value for labor per the ITA’s recent redetermination in a prior review under the same order; 4) etc. (See ITT’s Online Archives or 02/11/11 news, 11021111, for BP summary of most recent CIT decision on ITA’s revised approach to NME labor values) (Slip-Op.11-16, decided 02/11/11).

On February 10, 2011, in Norman G. Jensen, Inc., v. U.S., the Court of International Trade ruled that it lacks jurisdiction to compel U.S. Customs and Border Protection to rule on protests of liquidation, and that plaintiffs seeking a prompt CBP ruling on such protests should use available administrative procedures, such as filing a request for accelerated disposition, instead of seeking action through the CIT.

In its last remand in the antidumping duty investigation of wooden bedroom furniture from China, on the calculation of labor rates to use in valuing non-market economy (NME) exports, the Court of Appeals for the Federal Circuit ordered the ITA to use data from countries that are both economically comparable to the producing NME country and that are significant producers of comparable merchandise. The ITA then offered an approach based only on countries with incomes lower than China’s, resulting in far lower labor rate values. In response, domestic producers challenged 1) the ITA’s narrow grouping of low-income countries to use for labor costs; 2) the exclusion of data not available during the investigation period, 3) the exclusion of certain Indian wage data, and 4) the reliance solely on industry-specific wage rates. The Court of International Trade upheld all the agency’s choices except the selection of only countries with lower average incomes than China’s, and ordered the ITA to explain or alter that approach in favor of a more “balanced” set of countries. (See ITT’s Online Archives or 05/12/10 news, 10051935, for BP summary of the preceding appeals court remand.) (Slip Op. 11-14, dated February 9, 2011)