Court of International Trade

Goods cannot be found to have undergone a “minor alteration” to circumvent antidumping or countervailing duties if the Commerce Department knew an article existed commercially when writing an AD/CVD order, yet excluded it from the order anyway, said the Court of International Trade on Dec. 22 as it sustained a remand redetermination on steel wire rod from Mexico that was filed by Commerce under protest (here). CIT had in 2013 told Commerce to reconsider its finding that Deacero’s 4.75mm wire rod is circumventing the AD duty order, even though the scope of the order specifies that only wire rod between 5 mm and 19 mm in diameter is subject to duties. CIT pointed to evidence that the 4.75 mm wire was commercially available when Commerce issued the order in 2002. It would have been different if the scope was ambiguous as to whether 4.75mm wire was covered, but the agency’s decision to specifically limit the minimum diameter to 5 mm in the order even though it knew smaller wire existed means Commerce can’t go back later and effectively change the scope of duties by finding the 4.75 mm wire is also covered, said CIT.

The Court of International Trade on Dec. 15 ordered the government to compensate a tobacco importer for its effort to get the government to pay attorneys’ fees, on top of the fees themselves (here). The court had already awarded Shah Bros. $217,324.29 in attorneys’ fees under the Equal Access to Justice Act (EAJA) after the government allowed litigation to proceed in a classification even though it had conceded in a case involving identical merchandise four years earlier (see 14092303). The importer sought more attorneys’ fees to cover its EAJA request. The government argued CIT can’t award attorneys’ fees to cover attorneys’ fees requests, but the court disagreed, finding fee awards cover “all aspects of the civil action.” However, CIT reduced the fee award by 11 percent because of unrelated attorney bills and unfiled motions in Shah Bros. fee requests, as well as another 11 percent reduction “to reflect the degree of success obtained by [Shah Bros.] in fee litigation.” The court ordered the government to pay Shah Bros. a further $6,312.50 to cover the EAJA fee request, for a grand total of $223,636.79 in attorneys’ fees for the entire case.

Antidumping and countervailing duties on drill pipe from China appear headed for revocation, after the Court of International Trade on Nov. 10 affirmed a reversal of the International Trade Commission’s injury determination in a ruling released to the public Dec. 16 (here). The ITC is publishing a notice in the Dec. 18 Federal Register confirming that it will change its 2011 finding of a threat of injury to U.S. industry from drill pipe imports to a finding of no injury (here). The move comes in response to a CIT remand issued in 2013 (see 14022603). Unless the November CIT decision is appealed to the Court of Appeals for the Federal Circuit, Commerce will soon revoke AD/CV duties on drill pipe from China.

The following lawsuits were filed at the Court of International Trade during the week of Dec. 8-14:

International Trade Today is providing readers with some of the top stories for Dec. 1-5 in case they were missed.

The following lawsuits were filed at the Court of International Trade during the week of Dec. 1-7:

The Commerce Department again found a model of a chest claimed by Ethan Allen to be living room furniture to be subject to antidumping duties on wooden bedroom furniture from China (A-570-890), in the results of a remand filed with the Court of International Trade on Nov. 26. The agency reiterated that decorated “accent” chests for living rooms can be considered bedroom furniture if they are suited to store clothes, and pointed to new evidence from Ethan Allen’s Facebook page that showed the company’s Vivica chests advertised alongside other bedroom furniture.

The Court of International Trade on Dec. 2 dismissed a lawsuit related to the NAFTA-eligibility of frozen Brussels sprouts imported by General Mills from Mexico (here). General Mills wanted to challenge the ruling before having to incur the administrative costs associated with actually importing the frozen vegetables. But CIT said it would have to import them and protest the NAFTA treatment before getting a hearing from the court.

The Court of International Trade on Dec. 2 ruled two types of fuel-cell powered dispensers for public restrooms should be classified in the HTS as electrical machinery (here). Technical Concepts, which is now owned by Rubbermaid, imported TCell fragrance dispensers and SaniCell toilet cleaner dispensers. It argued the hygiene equipment should be classified as machinery in chapter 84 instead of electrical machinery under chapter 85, because it neither takes in nor puts out electricity. But CIT affirmed CBP’s reliquidation of the dispensers as electrical machinery because, through their fuel cells, they “depend on electricity” to operate.

Cash deposit rates are again set to rise for three exporters of wooden bedroom furniture from China (A-570-890), after the U.S. Court of Appeals for the Federal Circuit on Dec. 1 reversed a lower court ruling (here). In its 2011 final results, the Commerce Department had assigned an AD rate of 41.75% to Dalian Huafeng Furniture Group Co., Ltd., as well as to non-individually investigated companies including Nanhai Baiyi Woodwork Co. Ltd. and Dongguan Liaobushangdun Huada Furniture Factory, Great Rich (HK) Enterprise Co., Ltd. After a Court of International Trade remand, Commerce proposed increasing the three companies’ rates to 42.17%, but CIT rejected the higher rate. Instead, CIT in November 2013 sustained a second Commerce remand redetermination that lowered the three companies’ rates to 11.79% (see 13111421). On appeal, CAFC said the lower court was incorrect to reject the first remand redetermination, and ordered CIT to reinstate the 42.17% AD rate for Huafeng, Baiyi and Huada. Because none of the three companies have since been assigned a new rate, the change will affect current AD duty cash deposit requirements.