Court of International Trade

Knit “shelf bra camisoles,” which combine the body covering features of a camisole with the support features of a bra, are classifiable in the Harmonized Tariff Schedule’s residual provision for knit apparel, rather than as bras or tank tops, ruled the Court of International Trade in two May 1 decisions. The two cases, Victoria’s Secret Direct v. U.S. (here) and Lerner New York v. U.S. (here), shared such similar products and issues that the court decided to try them together. Both companies were represented by the same attorneys, some testimony during trial applied to both cases, and the post-trial briefs for each company were identical.

The Court of International Trade upheld a Commerce Department anti-circumvention ruling that made Vietnamese company Max Fortune’s exports subject to the antidumping duty order on tissue paper products from China (A-570-894). Max Fortune had challenged Commerce’s decision to apply adverse facts available, as well as the agency’s decision to require cash deposits instead of allowing the company to certify the origin of its exports.

The Court of International Trade awarded Tianjin Magnesium International to pay over $40,000 in attorney fees and costs to the U.S. government and US Magnesium for its misconduct in court proceedings related to an antidumping duty administrative review on pure magnesium from China. The government was awarded its requested amount of $8,302.20 in full, but the court heavily reduced the $215,572.43 requested by US Magnesium to $34,042.72. The company should have gone off the “Laffey Matrix” of average attorneys fees, rather than the fees it actually billed, which ranged from $150 per hour for a paralegal to $645 an hour for a partner. CIT had originally said the fees and costs would be awarded in a November opinion (see 12112329).

The Court of International Trade sustained the Commerce Department’s decision on remand to reverse a scope ruling, finding Welcom’s Magna Cart MCK utility cart to be outside the scope of the antidumping duty order on hand trucks from China (A-570-891). Commerce had originally found the utility cart to be in scope, because not all telescoping tubes in the frame were under 5/8 inch. But Welcom argued, and the court agreed in September, that the agency’s determination went against prior scope rulings 12100103. Welcom supported Commerce’s reversal on remand, and so did the court.

A listing of recent antidumping and countervailing duty messages from the International Trade Administration posted to CBP's website April 23, along with the case number(s) and CBP message number, is provided below. The messages are available by searching for the listed CBP message number at addcvd.cbp.gov. (CBP occasionally adds backdated messages without otherwise indicating which message was added. ITT will include a message date in parentheses in such cases.)

The Florida Tomato Exchange (FTE) is challenging the Commerce Department's agreement with Mexican tomato growers to suspend an antidumping investigation on fresh tomatoes from Mexico. The FTE filed its complaint April 19 in the Court of International Trade, alleging that Commerce was operating outside of the statute when it entered into a fourth suspension agreement and revised reference prices.

In its long-awaited ruling in Union Steel v. U.S., the Court of Appeals for the Federal Circuit affirmed on April 16 the Court of International Trade’s approval of the practice of zeroing in antidumping administrative reviews, but not investigations.

The Court of International Trade dismissed an action challenging the U.S. Customs Service’s HTS classification of certain models of Teva sports sandals as footwear with open toes or open heels, rather than as sports footwear. CIT found the 2008 decision of the Court of Appeals for the Federal Circuit in a test case involving similar footwear to be controlling (see 08070735). The case had been filed by Deckers Corporation over a decade ago.

The Court of International Trade sustained the Commerce Department’s decision to rescind an antidumping duty new shipper review of fresh garlic from China (A-570-831). Commerce had found that the sales being reviewed to establish Jinxiang Chengda’s AD rate were not commercially realistic, because of their high price, small quantity, and nearly simultaneous timing. The court agreed, noting that high prices could have distorted any AD rate that resulted from the new shipper review. The quantities and timing of the sale indicated that they were not indicative of future commercial behavior either, said the court.

The Court of International Trade remanded part of the Commerce Department’s final determination from the antidumping duty investigation of polyvinyl alcohol from Taiwan (A-583-841) for the agency to explain the targeted dumping methodology used to find Chang Chun Petrochemical Co.’s AD rate. CCPC argued that Commerce applied the regulation on targeted dumping in effect at the time the investigation was completed in 2011, when it should have applied the targeted dumping rule in effect when the investigation began in 2004. The court said Commerce applied the right regulation, but didn’t apply it properly. The record indicated Commerce applied the regulation in effect in 2004, the court said, but Commerce failed to explain why it applied the targeted dumping methodology to all of CCPC’s sales, and why it eliminated transaction-to-transaction calculation methodology as an alternative to the normal method.