Court of International Trade

The Court of International Trade ruled that a Wisconsin company may be liable for $6.8 million in unpaid customs duties and related penalties because of its acquisition of the bankrupt entity that committed the alleged violations. Adaptive MicroSystems argued that its earlier acquisition of a company bearing the same name did not make it liable to respond to a penalty notice issued by CBP for the violations. At the time of the sale, the Wisconsin court that authorized the transaction said AMS wouldn’t assume its predecessor’s liabilities. CIT said it wouldn’t follow the Wisconsin court’s instruction, because the state court may have not known all of the facts, and ruled that AMS qualified for an exception to successor liability protections because a corporate officer and part owner of its predecessor also was an officer and part owner of AMS.

The Court of International Trade remanded aspects of the Commerce Department’s 2009-10 antidumping duty administrative review on polyethylene retail carrier bags from Thailand (A-549.821) for reconsideration by the agency. The court faulted Commerce’s calculation of respondent Thai Plastic Bags Industry’s general and administrative expenses, as well as its adjustment of respondent Landblue’s surrogate financial statement. Both issues had been raised by domestic petitioners. CIT sustained Commerce’s decision to use surrogate financial statements for Landblue instead of confidential information from TPBI, despite domestic petitioners’ challenge, as well as Commerce’s use of zeroing and its decision to exclude an export-conditional government rebate from TPBI’s cost of production analysis, both in the face of a challenge by foreign respondents and U.S. importers.

Giorgio Foods appealed a Court of International Trade ruling against its disbursement claim for funds collected as antidumping and countervailing duties, pursuant to the Continued Dumping and Subsidy Offset Act. Giorgio had indicated no position on questionnaires regarding three AD duty investigations on preserved mushrooms, and opposed another. The court, as in previous cases, found the company’s constitutional arguments had already been decided in previous cases, and said it didn’t have jurisdiction to hear a claim directed against domestic companies that had benefited from CDSOA funds (see 13030803).

The Court of International Trade affirmed the adverse facts available countervailing duty rate assigned to Essar Steel Limited by the Commerce Department in the 2006-07 CV duty review on hot-rolled carbon steel flat products from India (C-533-821). The court had previously remanded the final results to Commerce on the basis that it didn’t corroborate the AFA CV rate (see 12101627. In its remand results, Commerce explained that it had taken subsidy rates from similar programs to come up with Essar’s rate. Essar and the Indian government had failed to cooperate in providing information on a specific subsidy program, so the similar programs were all Commerce had to go on, it said.

The Wind Tower Trade Coalition appealed the Court of International Trade’s denial of an injunction preventing liquidation of entries made during the “provisional measures” period between the preliminary determination and antidumping and countervailing duty orders in the investigations of utility scale wind towers from China and Vietnam. The court had ruled March 29 that a previous CIT case had decided the issue of how to interpret the International Trade Commission’s vote pattern in its injury determination, and so the coalition would have had a difficult time proving the ITA improperly ordered liquidation of the entries (see 13040132).

The Court of International Trade again remanded the final results of the 2008 antidumping duty administrative review on wooden bedroom furniture from China (A-570-890), partly because of the partial adverse facts available (AFA) rate chosen for Chinese company Fairmont’s unreported sales.¹ The court had first remanded the International Trade Administration’s final results in June 2012, for the ITA to reconsider Fairmont’s partial AFA rate, the surrogate wage rate, its use of a financial statement, and its use of zeroing (see 12060729). On remand, the ITA recalculated the wage rate and adequately explained its use of zeroing, but failed to implement the court’s orders on Fairmont’s partial AFA rate and the use of the financial statement.

The government appealed a February Court of International Trade decision ordering CBP to admit coaxial cable connectors imported by Corning Gilbert, but found by CBP to be subject to an International Trade Commission general exclusion order for patent infringement. CBP had denied entry to Corning Gilbert’s connectors based on the exclusion order, despite no ITC finding for the company in the underlying Section 337 investigation, and later issued a ruling letter confirming that the company’s connectors were to be refused entry. In February, CIT found that CBP’s ruling letter was not entitled to deference because the agency didn’t adequately address the question of patent infringement. After examining the patent at issue and Corning Gilbert’s connector, CIT said the connector didn’t infringe the relevant patents and should not have been excluded (see 13020405).

The Court of International Trade denied Cutter & Buck’s challenge to CBP’s valuation of 168 entries of apparel. Cutter & Buck argued that CBP should have deducted international freight charges when arriving at the price actually paid or payable for the purpose of calculating transaction value. The shipments were subject to a late-delivery clause that shifted responsibility for shipping to the seller. Cutter & Buck said the clause also changed the terms of sale from free on board (FOB) to cost, insurance, and freight (CIF), so the cost of shipping was included in the invoice, and deductible, as a result of the late delivery. But the court found that there was no evidence to support Cutter & Buck’s claim that the invoice price included the international freight charges, so they could not be deducted.

The Court of International Trade sustained the International Trade Administration’s application of total adverse facts available to Mukand, Ltd.’s antidumping duty rate, despite the company’s omission of only one piece of data, in the 2009-10 administrative review of stainless steel bar from India (A-533-810). Mukand had declined to provide information on cost differences between producing stainless steel bar of various sizes, but had otherwise fully cooperated. CIT agreed with the ITA in its application of total AFA, finding that the requested information was so important to calculating Mukand’s AD rate that the rate could not have been accurately calculated without it.

The Court of International Trade is increasing its fees for filing cases. Effective May 1, the fee for filing challenges to protest denials under 28 USC 1581(a) will increase from $150 to $175, while the fee for filing Trade Adjustment Assistance challenges for workers under 28 USC 1581(d)(1) will rise from $25 to $35. Fees for all other actions, including challenges to International Trade Administration determinations in antidumping and countervailing duty cases, will increase from $350 to $400.