Court of International Trade

The antidumping duty rate assigned to Thai Plastic Bags Industries (TPBI) will rise slightly, after the Court of International Trade affirmed a Commerce Department redetermination of the AD duty administrative review on polyethylene retail carrier bags from Thailand (A-549-821). Commerce had assigned TPBI a rate of 35.71% in the final results of the 2009-10 review. The agency made minor changes to its calculation for the company in response to a March 2013 court remand (see 13041102, bringing TPBI’s AD rate up to 35.79%. CIT affirmed in increase in the face of challenges from both TPBI and domestic industry.

The Court of International Trade dismissed on Nov. 8 an importer’s challenge to CBP’s order to redeliver 300 stereo headsets from China for intellectual property violations. The court had found out that plaintiff Evertek’s headsets had been subsequently seized and destroyed by CBP, rendering the case moot. That revelation came nearly a year after the merchandise had been destroyed, and over 18 months after Evertek had filed suit. At the June 2013 hearing where CIT Judge Timothy Stanceu learned that the merchandise had been destroyed a year earlier, the court excoriated CBP for its handling of the case, criticizing the agency for destroying goods under the court’s jurisdiction and then allowing the court to waste resources on a non-existent claim.

The Court of International Trade sustained on Nov. 8 the high 137.2% antidumping duty rate assigned to Hubscher Ribbon Corp. for noncooperation in an administrative review on narrow woven ribbons with woven selvedge from Taiwan. Hubschercorp had responded to the Commerce Department’s first request for information in the 2010-11 review, and then told the agency it would no longer participate. Commerce assigned it a 137.2% AD rate, relying on adverse facts available. Hubschercorp said that rate couldn’t possibly reflect reality, given that the only individual AD rates calculated up to that point on ribbons from Taiwan were zero and 4.37 percent, respectively. Given Commerce’s corroboration of the high rate using Hubschercorp’s own data, the court found that argument lacking. Hubschercorp merely showed Commerce could have interpreted the record in a different way when it assigned the rate but it failed to show Commerce’s rate was unreasonable.

The Court of International Trade denied on Nov. 6 an attempt by LG Electronics to put on hold a case on the International Trade Commission's antidumping and countervailing duty injury determination on large residential washers from South Korea and Mexico. LG Electronics wanted the case delayed while CIT considered a separate lawsuit on the Commerce Department's determinations from the same investigation. It argued that if the court remanded and Commerce came back with low AD/CV duty rates, it could affect the ITC's consideration. But the court found the potential upside of LG's Commerce Department challenge to be uncertain -- even if Commerce reduced its rates to zero, there is no guarantee the ITC would change its injury determination -- to justify the potentially years-long delay that would result from waiting on the outcome of the Commerce case.

The U.S. Court of Appeals for the Federal Circuit affirmed on Nov. 5 a lower court ruling on the tariff classification of hole punches for paper scrapbooks. As the Court of International Trade had done in September 2012 (see 12100102), the appeals court held Wilton Industries’ “Stampin’ Up!” hole punches should be classified as “perforating punches” under Harmonized Tariff Schedule heading 8203, rather than Wilton’s preferred classification as paper cutting machines under heading 8441. The former heading exactly describes Wilton’s hole punches, while the latter is reserved for paper manufacturing machinery, CAFC said.

CBP’s ruling revocation on Best Key’s yarn will take effect 60 days after the end of the federal government shutdown on Oct. 17, instead of the nominal publication date of Oct. 2, ruled the Court of International Trade on Nov. 4. Although paper copies of the ruling revocation may have been available during the shutdown, CBP is required to give 60 days of public notice before a ruling revocation takes effect, and the ruling wasn’t easily accessible to the public until the government resumed operations, CIT said. The court decision is only the latest chapter in an ongoing dispute over classification of the metal-containing yarn. Best Key is attempting to reverse CBP’s revocation of the ruling in another CIT lawsuit filed Oct. 25.

The Court of International Trade sustained on Nov. 4 the final determination from the Commerce Department’s antidumping investigation on drill pipe from China (A-570-965). Downhole Pipe and its Chinese affiliate DP-Master challenged the way the agency valued a key input, and CIT had remanded in November on the issue 12112301. On remand, Commerce changed the way it valued the input, but ended up raising Downhole Pipe’s AD rate from 69.19% to 149.36%. Downhole Pipe unsurprisingly continued to contest the determination, but CIT found Commerce’s redetermination to be reasonable.

An otherwise routine order exposed a split at the Court of Appeals for the Federal Circuit on how it should review decisions by the Court of International Trade. The appeals court on Oct. 25 rejected a request to rehear an antidumping duty case where CAFC in May effectively reinstated AD duties on ball bearings from The United Kingdom and Japan (see 13051716). In its May decision, CAFC reversed a series of CIT decisions going back seven years. CAFC Chief Judge Randall Rader, along with Judges Evan Wallach and Jimmie Reyna -- both of whom have trade law experience -- dissented from CAFC’s decision not to rehear the case. They said CAFC should depart from its current standard of how it reviews CIT decisions, and defer more to the lower court’s expertise on trade. But the majority of five CAFC judges disagreed. A stricter standard of review would run contrary to how every other federal appeals court looks at district court cases, they said.

The Court of International Trade granted a reprieve to an importer facing penalties for tariff misclassification, but didn’t let the importer off the hook entirely. On Oct. 30, the court rejected a government request for penalties based on technicalities related to the calculation of the penalty amount. The government sought $324,687 against importer Lafidale for misclassification of handbags and wallets. CIT found that the importer was liable for penalties for gross negligence, but said the government’s muddled calculations prevented it from allowing the penalty to proceed. Although it denied the government’s motion, CIT said it would allow the government to correct its mistakes and refile.

The Court of International Trade finally sustained the Commerce Department’s 2008 final countervailing duty determination on new pneumatic off-the-road tires from China (C-570-913), bringing to an end after five years of litigation a case that at one point called into question Commerce’s ability to impose CV duties on China at all 11122210. CIT had in January accepted the constitutionality of the 2012 law authorizing CV duties on non-market economy, but remanded on more mundane issues (see 13010830). On remand, Commerce lowered TUTRIC’s CV duty rate from 6.85% to 3.93%. The court found Commerce adequately explained its reasoning, and accepted the results despite challenges from both domestic industry and Chinese exporters.