Court of International Trade

Congress could improve the Court of International Trade (CIT) through statutory updates to help improve it's efficiency, said CIT Chief Judge Donald Pogue, while speaking Feb. 27 on a panel at the Georgetown University Law Center International Trade Update conference. "There are too many areas in which the statute doesn't make sense," he said. "Our injunction practice is a good example." Problematic statutes are "wasting resources" and "we need a process that will identify those problems, find the solutions where, in fact, the administration of justice works better," he said. The panel included three CIT judges and a judge from the Court of Appeals for the Federal Circuit (CAFC). The event was sponsored by the Customs and International Trade Bar Association and the Federal Circuit Bar Association.

Commerce can choose not to apply an alternative antidumping duty calculation method even if it finds targeted dumping, said the Court of International Trade on Feb. 27 as it sustained the 2010-11 administrative review on ball bearings from France, Germany and Italy. During the review, Commerce had gone a step beyond its normal test for determining if targeted dumping occurred by running an additional test to see if the targeted dumping accounted for a significant portion of overall sales. The agency decided it did not. In response to a challenge from the Timken Company, CIT ruled that Commerce is allowed to run the additional test and decide not to change its calculation method, because the underlying law only says the agency “may” modify its calculations if it finds targeted dumping.

Antidumping duties on drill pipe from China may soon be no more, according to a Feb. 25 Court of International Trade decision and associated court documents. The duties had originally been imposed in 2011 after the ITC found a threat of injury to U.S. industry from dumped imports. But a CIT decision from August 2013 that was only made public in January took issue with the ITC’s findings, and sent them back down for reconsideration. The ITC on Dec. 11 filed its remand redetermination with the court, and in a reversal of its earlier position found no injury to U.S. industry. If the court affirms that redetermination, it will result in the lifting of AD duties on drill pipe form China.

The Court of International Trade on Feb. 25 again denied Best Key’s challenge to a CBP ruling revocation on its metallized yarn. Although it had dismissed the case in December, CIT reversed course on whether it could hear Best Key’s challenge. Contrary to its earlier decision, it found Best Key did not have to be a direct importer to file suit against the ruling revocation. This time, CIT heard Best Key's arguments related to CBP misconduct and the interpretation of tariff headings on metallized yarn. But the court was not convinced by Best Key’s evidence of misconduct, and found no clear error in CBP’s revocation of the rulings.

Antidumping duty rates assigned to 29 exporters of frozen warmwater shrimp from China (A-570-893) in the 2004 original investigation will fall to 6.7%, after the Court of International Trade on Feb. 18 affirmed a remand redetermination from the Commerce Department. Although nearly a decade has passed since the rates were set, the change may apply in a few cases to current AD cash deposit requirements if no rates have been set in recent years.

The countervailing duty rate for aluminum extrusions from China (C-570-968) exported by Zhaoqing New Zhongya Aluminum is set to fall to 4.89%, after the Court of International Trade on Feb. 19 affirmed the Commerce Department’s recalculation of the company’s original investigation rate. Zhongya had been assigned a CV duty rate of 8.02% in 2011 (see 11052633), but CIT later took issue with the way Commerce valued land subsidies and remanded for Commerce to revisit the issue (see 13071901. Commerce didn’t set a new rate for Zhongya in the only CV duty administrative review completed since the original investigation (see 13123123), so the new 4.89% CV duty rate appears to apply to CV duty cash deposits on future entries as well.

The Court of International Trade on Feb. 18 sustained the 2.78% antidumping duty rate assigned to Xinjiamei Furniture (Zhangzhou) in a new shipper review on folding metal tables and chairs from China (A-570-868). After having remanded Xinjiamei’s AD rate in March 2013 (see 13031204), the court found that the Commerce Department complied with its instruction to justify its use of some data on the second go round. CIT refused to hear Xinjiamei’s arguments to the contrary because the company didn’t first address its concerns to Commerce after the agency issued a draft version of its remand redetermination.

Protests must be filed at the port where the contested CBP decision was made in order to be eligible for a subsequent court challenge, ruled the Court of International Trade on Feb. 14 as it dismissed an importer’s tariff classification suit. The regulatory requirement that “protests shall be filed with the port director whose decision is protested” is a requirement for CIT jurisdiction, it said. Just as with the requirements that protests be filed on time and duties be paid before the trade court can take up a challenge, so must the importer meet the requirements of CBP’s “place-of-filing” regulation, it said.

A three-judge panel of the U.S. Court of Appeals for the Federal Circuit indicated during oral argument they could take a narrow approach to deciding the outcome of a controversial case on the scope of CBP notices of action. A Justice Department lawyer voiced concern that a Court of International Trade (CIT) decision finding a CBP notice of action improperly revoked an earlier ruling letter could force CBP to follow formal notice and comment procedure for every notice of action issued by the agency. But Federal Circuit Judges Kathleen O’Malley, Jimmie Reyna, and Eli Wallach questioned whether the particular notice of action issued to International Custom Products operated as a typical notice of action at all. The oral argument was held on Feb. 6 in Washington.

The Court of International Trade on Feb. 6 ordered the Commerce Department to reconsider aspects of its 2010-11 antidumping duty administrative review on steel threaded rod from China (A-570-932). Chinese steel rod producers RMB Fasteners and IFI & Morgan, as well as their affiliated supplier Jiaxing Brother, had challenged the country chosen by Commerce to value their non-market inputs. When calculating home market prices in a non-market economy like China, Commerce constructs prices based on the market prices for inputs in a “surrogate country.” Commerce had chosen Thailand over the Philippines, resulting in a 19.68% AD duty rate. As a relatively less-developed country, choosing the Philippines would likely have resulted in lower input prices and cheaper constructed Chinese market prices, reducing the appearance of relative underpricing (i.e., dumping) in the U.S.as a result. CIT told Commerce to take another look at its choice of Thailand over the Philippines, citing aberrations in Thai data for some inputs used to make steel threaded rod.