Court of International Trade

The Court of International Trade sustained on Aug. 30 the final results of the 2006-07 antidumping duty administrative review on tapered roller bearings from China, having remanded twice previously. In response to the second remand in August 2012 (see 12080304), the Commerce Department calculated an AD rate for Changshan Peer Bearing that is not a penalty rate based on adverse facts available. The agency also created a “constructed export price” for price comparisons after finding it couldn’t rely on the original prices for the merchandise. The court-approved version sets Changshan Peer Bearing’s (CPZ) AD rate at 6.5%, down from 92.84% in the final results and 60.95% after the first remand.

The Court of International Trade upheld the Commerce’s Department’s finding that UK Carbon and Graphite is circumventing the antidumping duty order on small diameter graphite electrodes from China. In August 2012, Commerce said UKCG was circumventing the order by sourcing unfinished graphite electrodes from China, putting them through a minor finishing process in the UK, and exporting the product to the U.S. (see 12080817). The court said Commerce justified its analysis, including its decision to apply the China-wide rate to UKCG, as well as its use of surrogate values from other countries to set the price of the Chinese inputs when determining how much value UKCG added in the UK.

Importers of goods from China and Vietnam who are subject to antidumping duties must pay at the exporter’s rate, and not the producer’s, ruled the Court of International Trade Aug. 21. That’s the case even if the exporter isn’t a respondent and gets assigned the China- or Vietnam-wide rate, because the country-wide rate serves as a specific AD rate to every non-separate rate exporter, CIT said. Because the regulations prefer specific exporter rates to producer rates, subject merchandise produced by a company with a low separate rate, but exported by a company that doesn’t prove separate rate status, will enter at the exporter’s high China- or Vietnam-wide rate, the court said.

The Court of International Trade again remanded Commerce’s selection of India as the surrogate country in the 2009-10 antidumping duty administrative review of polyethylene terephthalate film, sheet and strip from China (A-570-924). Commerce again declined to consider the most recent economic data on the two countries when making its decision. The court had already remanded on that issue in February (see 13020802). This time, Commerce rejected the data on procedural grounds, because it purportedly didn’t have enough time to review the data. This was despite the fact that the data had been placed on the record before the regulatory deadline for submitting factual information. The court agreed with Dupont Teijin’s argument that Commerce was effectively creating a new deadline that isn’t specified in the regulations, and remanded for a second time.

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.

The Court of International Trade on Aug. 15 remanded the final results of the 2009-10 antidumping duty administrative review on activated carbon from China, citing several issues with the average rates assigned to non-individually reviewed “separate rate” companies. Because the rates for the only individually reviewed companies were de minimis, Commerce based the $0.28/kg average rate for seven other companies on rates calculated for different companies in a previous review. That’s too far from the commercial reality of the separate rate companies, the court said. CIT also remanded the Commerce’s decision to use a “specific” per kilogram rate for one of the separate rate companies, as well as the agency’s calculation of surrogate values for inputs.

The Court of International Trade ruled Aug. 16 that Springs Creative Product Group’s (SCPG) “Make-it-Yourself No-Sew Fleece Throw Kits” are properly classified as toys in the Harmonized Tariff Schedule, and not as its constituent fabric as CBP had argued. The throw kits are mainly intended for fun, and their eventual use as blankets is secondary, the court said. Significantly, the throw kits sell for a substantial price premium over finished throws.

The Court of International Trade sustained on Aug. 8 the antidumping duty rate of $1.28 per kilogram assigned to Qingdao Sea-Line Trading in a new shipper review on fresh garlic from China (A-570-851). CIT had remanded in April 2012 for Commerce to reconsider the surrogate values used to calculate the company’s AD rate (see 12040402). Although Commerce made no changes to its calculations, CIT accepted the agency’s new explanations for why it used a non-contemporaneous surrogate value, and why it chose certain financial statements over others.

The Court of International Trade will be moving its document filing and viewing system to the Public Access to Court Electronic Records (PACER) database on Oct. 1, according to a notice posted to its website and sent to current CM/ECF users. PACER is already used by all federal district, bankruptcy, and appeals courts. Current users of PACER will not have to re-register, but those without PACER accounts will have to get one (here).

The Court of International Trade affirmed CBP’s tariff classification of a packaging material used in military “Meals, Ready-to-Eat” (MREs) under a provision for plastics, despite its inclusion of a layer of aluminum foil. Alcan Food Packaging had contended the material should have instead been classified as aluminum foil, but the court said the plastic layers imparted the item’s essential character.