Court of International Trade

The U.S. Court of Appeals for the Federal Circuit has affirmed the Court of International Trade's decision in Dell Products LP, v. U.S., that for tariff purposes, goods put up in sets for retail sale refers to goods that are offered to customers as a set for purchase rather than to a collection of goods that are assembled into a set after the customer has purchased them, in which case, the goods would be classified separately.

The International Trade Administration originally proposed a China-wide “adverse facts” antidumping duty rate of 45.25% for imports of heavy forged hand tools from producer/exporter Shandong Machinery Import & Export Company, for the review period of February 2005 through January 2006, arguing that the rate must be higher than the prior rate of 34.56% in order to ensure cooperation. In the first remand, the Court of International Trade found the agency had failed to corroborate the 45.25% rate and ordered the agency to use a “different rate.” However, in the second remand, the court ruled out as “punitive” a revised rate of 109.16%, which was based on a single sale in the preceding review. The CIT then instructed the agency to revert to the 45.25% rate, but with corroboration, and the court has now accepted this result. (See ITT’s Online Archives or 08/18/10 news, 10081817, for BP summary of the CIT’s second remand.) (Slip Op. 11-47, dated 04/26/11)

The International Trade Administration is issuing amended antidumping duty orders on certain frozen warmwater shrimp from Brazil, India, China, Thailand, and Vietnam in order to include dusted shrimp¹ within the scope of the orders (A-351-838, A-533-840, A-570-893, A-549-822, and A-552-802).

Through four successive remand determinations on the second sunset review of antidumping duty orders on ball bearings from France, Germany, Italy and Japan, the International Trade Commission maintained that imports of ball bearings would injure domestic injury in the absence of the AD order. But after the Court of International Trade directed the ITC to “point to particular data in the record and rationally connect it to the underlying determinations,” the agency reversed its position, concluding that imports “are not likely to have a significant impact on the industry upon revocation” of the order. The CIT upheld this revised determination and declined to adjudicate other issues, noting that the government plans to appeal the new ruling upholding revocation. (See ITT’s Online Archives or 01/03/11 news, 11010316, for BP summary of the court’s preceding remand instructions to the ITC.) (Slip Op. 11-43, dated 04/20/11)

In response to a Court of International Trade remand on the final results of the antidumping duty investigation of certain steel threaded rod from China, the International Trade Administration reconsidered the exclusion of financial data for an Indian pre-stressed concrete wire products manufacturer from the normal value calculation, conceding that the Indian firm did make “comparable merchandise.” With the resulting altered normal value, the dumping margin declined from 55.16% to 47.37% for Chinese producer/exporters Jiaxing Brother Fastener Co., Ltd, a.k.a. Brother Standard Parts Co., Ltd., IFI & Morgan Ltd., and RMB Fasteners Ltd. (Slip Op. 11-44, dated 04/21/11)

In remand results for the antidumping duty administrative review of certain cased pencils from China for the period of December 1, 2006 through November 30, 2007, the ITA revised its labor rate value for Chinese pencil manufacturers, using a more narrowly defined set of market economy countries at levels of economic development more comparable to that of China. Producer/exporter Shandong Rongxin Import & Export Co., Ltd. then argued that the ITA should use only a single country for wage rates, as it does for other factors of production, but the Court of International Trade ruled the complaint “groundless,” since using multiple countries for wage rates is specifically required by the agency’s regulations. However, the CIT found the ITA’s exclusion of detailed, relevant wage rate data for Indian wood products makers to be inconsistent and unjustified, and further dismissed as “absurd” the ITA’s decision to identify as “significant producers” a number of small countries with only nominal exports of pencils, such as the Maldives, with $67 of exports. The court accordingly remanded these aspects of the determination to the ITA. (Slip Op. 11-45, dated 04/21/11)

In Canadian Wheat Board, et al. v. U.S., the Court of Appeals for the Federal Circuit affirmed a Court of International Trade decision that the U.S. government cannot retain unliquidated antidumping and countervailing duties that were deposited prior to the revocation of an AD or CV duty order, and that the duty depositors are entitled to a return of those duties.

Respondents challenging the International Trade Administration’s application of parallel antidumping and countervailing duties, in the AD and CV investigations of magnesia carbon bricks from China and Mexico, had asked the Court of International Trade to stay proceedings in their action pending an expected ruling on the issue from the Court of Appeals for the Federal Circuit. Noting that it has already held the practice of applying simultaneous AD and CV duties to be impermissible, the CIT agreed to stay and consolidate the multiple plaintiffs’ actions until the CAFC rules on the CIT’s decision in GPX International Tires et. al v. U.S. (See ITT’s Online Archives or 08/09/10 news, 10080911, for BP summary of CIT's ruling in GPX International Tire Corp. et al v. U.S., disallowing the ITA’s simultaneous application of AD and CV duties.) (Slip Op. 11-38, dated 04/14/11)

Following the second remand results in the antidumping duty administrative review of fresh garlic from China for the period November 2001 - October 2002, Jinan Yipin Corporation contested the International Trade Administration’s cardboard and labor surrogate values and alleged other errors, while the ITA requested a voluntary remand to revise the value to conform with an appeals court ruling that found the ITA’s prior method of calculating Chinese labor costs to be illegal. The Court of International Trade denied Jinan Yipin’s complaints and upheld the ITA’s remand results methodologies, but granted the ITA a voluntary remand to revise labor costs. (See ITT’s Online Archives or 11/09/09 news, 09110935, for BP summary of second remand decision. See ITT’s Online Archives or 05/19/10 news, 10051935, for BP summary of the CAFC decision overturning ITA’s use of certain labor cost values.) (Slip Op. 11-36, dated 04/12/11)

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)