Court of International Trade

In the February 2006 -January 2007 antidumping duty administrative review of certain frozen warmwater shrimp from Vietnam, the International Trade Administration assigned unreviewed companies the rates they had been assigned in the earlier investigation. For the second remand, ITA changed course and assigned the unreviewed companies the zero rate it had calculated for the mandatory respondents (the firms selected by the agency as representative sample firms), and the court has now upheld this result. (Slip Op. 11-39, dated 04/14/11)

A 2009 remand decision from the Court of International Trade found fault with the methods of the International Trade Administration in ruling that a New York importer’s collapsible hand cart, purportedly designed for luggage and sales samples, fell within the scope of the antidumping duty order on hand trucks and certain parts thereof from China even though the order excludes most collapsible carts. However, after the ITA, on remand, conducted some simple tests of the disputed cart’s ability to slide under loads, the court found that the agency had acted correctly, and upheld the scope ruling. (See ITT’s Online Archives or 11/23/09 news, 09112360, for BP summary of earlier court decision.) (Slip Op. 11-37, dated 04/12/11)

Seeking to challenge its failure to be awarded status as an affected domestic producer (ADP), which would entitle it to distributions of antidumping duties under the Continued Dumping and Subsidy Offset Act of 2000 (CDSOA aka Byrd Amendment), Giorgio Foods, Inc. sued to attempt to force the International Trade Commission to provide documents from the AD injury investigations on certain preserved mushrooms from Chile, China, India, and Indonesia. The ITC argued that “Giorgio was not a petitioner in the investigations and did not express support for the petition in its questionnaire response,” and thus did not qualify as an ADP, but the company alleged that documents from the investigation, as yet not divulged by the agency, would show it had supported the petition. The Court of International Trade ruled in favor of the domestic grower, ordering the ITC to provide the full set of documents considered directly or indirectly in the investigation. (Slip Op. 11-27, dated 03/08/11, public version posted 04/08/11)

On April 4, 2011, the Court of International Trade agreed to consolidate for trial, two actions¹ on whether approximately 70 entries of peanut products imported into the U.S. from Mexico between December 2005 and October 2006 were entitled to preferential duty treatment under the North American Free Trade Agreement (NAFTA).

Dongbu Steel Co., Ltd. and Union Steel Manufacturing Co., Ltd., Korean steel producer/exporters, challenged the ITA’s use of zeroing¹ in the August 2004 -- July 2005 antidumping duty administrative review of corrosion-resistant carbon steel flat products from Korea. Between the review’s preliminary results and the March 20, 2007 final results determination, the ITA ceased the practice of zeroing in AD investigations but maintained it in reviews. When Dongbu and Union challenged the ITA’s continued use of zeroing in AD administrative reviews, the Court of International Trade upheld the practice, and Union appealed.

In a previous remand order on the final results of the December 2006 -- November 2007 antidumping administrative review of certain welded stainless steel pipes from Korea, the Court of International Trade granted the International Trade Administration’s request for a voluntary remand to assess the use of steel specifications in addition to steel grades in its cost analysis, and also directed the agency to reconsider its attempt to use quarterly indexing to derive average costs for steel components in a period of strongly fluctuating nickel values.

An importer of scaffolding pieces sought to exclude its products from the scope of the antidumping and countervailing duty orders in circular welded carbon quality steel pipe from China, citing an exclusion for “finished scaffolding” that the International Trade Administration wrote into the AD and CV duty orders. However, after a voluntary remand the ITA again found the scaffolding imported by Constantine N. Polites & Co. to be covered by the orders. In response to the importer’s renewed challenge, the Court of International Trade issued a second remand instructing the ITA to provide evidence to support its assertion that “finished scaffolding” means scaffolding kits, or provide a definition. (Slip Op. 11-31, dated 03/23/11)

In a case involving furniture producer Standard Furniture Manufacturing Co., Inc.’s claim that it was entitled to potentially collect Byrd Amendment distributions of antidumping duties collected under the AD duty order on wooden bedroom furniture from China prior to the 2006 repeal of the Continued Dumping and Subsidy Offset Act of 2000 (Byrd Amendment), the Court of International Trade ruled that Standard has the right to amend its complaints to make them uniform and to take additional time to prepare responses to the government’s arguments. Standard is arguing that the government acted inconsistently, and that various features of the Byrd Amendment are unconstitutional. (Slip Op. 11-32, dated 03/23/11)

On February 14, 2011, the Court of Appeals for the Federal Circuit issued a decision upholding the calculation methods of the International Trade Administration in a court remand over an antidumping administrative review of circular welded carbon steel pipes and tubes from Thailand for the period March 2006 - February 2007 (the decision upheld the ITA’s accounting for duty drawbacks on imported components, among other issues). Subsequently the parties to the litigation filed motions to proceed with liquidation of the merchandise, indicating no party intended to appeal the matter further. However, the Court of International Trade ruled that it could not modify the injunction against liquidation that is still in place, until the CAFC formally issues its mandate. (See ITT’s Online Archives or 02/18/11 news, 11021817, for BP summary of CAFC decision upholding duty drawback adjustments for Saha Thai.) (Slip Op. 11-29, dated 03/22/11)

A Turkish producer/exporter of welded carbon steel pipe and tube asked the Court of International Trade to delay decisions in the company’s current suit over the final results of the antidumping duty administrative review for the period May 1, 2008 through April 30, 2009. The Turkish company, Borusan Mannesmann Boru Sanyi ve Ticaret A.S., argued that appeals of other cases now before the Court of Appeals for the Federal Circuit (including the Saha Thai case) may affect its challenge of two practices of the International Trade Administration: the inclusion of unpaid import duties in production cost calculations, and “zeroing” (counting only transactions with positive dumping margins and omitting non-dumped sales) in the calculation of weighted averaged dumping margins. The CIT ruled that the appeals court had not yet precisely addressed the zeroing question in the circumstances applicable to Borusan, and issued a stay pending the exhaustion of the right of appeal in the two cases bearing on Borusan’s challenges. (Slip Op. 11-30, dated 03/22/11).