Judicial Review of the International Trade Commission's Injury Determinations in Antidumping and Countervailing Duty Proceedings: An Overview and Analysis of Federal Court Decisions in 2005

Article excerpt

The views in this paper are those of the authors. This paper is not a document of the U.S. International Trade Commission and is not intended to represent the official views or methods of the Commission or any individual Commissioner.

I. INTRODUCTION

During 2005, the U.S. Court of International Trade ("CIT") and the U.S. Court of Appeals for the Federal Circuit ("Federal Circuit") issued several decisions that addressed issues arising out of the antidumping and countervailing duty ("AD/CVD") determinations of the International Trade Commission ("Commission" or "ITC"). These decisions addressed such issues as the Commission's obligation to respond to arguments of the parties, its assessment of the likelihood of material injury in sunset reviews, its discretion to adopt reasonable analytical methodologies for its analyses, and its consideration of the probative weight of the record evidence in AD/CVD proceedings. In this article, we provide an overview and analysis of the CIT and Federal Circuit's 2005 decisions. By way of introduction, we will first briefly review the Commission's responsibilities in the AD/CVD area and the principles of appellate review that apply to the Commission's decisions.

II. THE COMMISSION'S RESPONSIBILITIES IN AD/CVD PROCEEDINGS AND APPELLATE REVIEW OF THE COMMISSION'S INJURY DETERMINATIONS

A. The Commission's Responsibilities under the AD/CVD Statute

The International Trade Commission is one of two federal agencies that are responsible for making the determinations necessary to impose an antidumping or countervailing duty order. In an AD/CVD investigation, the Department of Commerce ("Commerce") assesses whether a foreign producer has sold its products in the United States at less than fair value, that is, at "dumped" prices, and whether the producer's sales have been subsidized by a foreign government. (1) The Commission determines whether the domestic industry producing a like product is materially injured or threatened with material injury by reason of the dumped or subsidized imports. (2) If Commerce finds that the imports are dumped or subsidized and the Commission finds that the industry has been materially injured or threatened with injury by these imports, Commerce issues an AD or CVD duty order covering the imports in question. (3)

Once an order is issued, the Commission and Commerce must review it every five years to determine whether the order continues to be necessary to protect the industry against the injurious effects of dumped or subsidized imports. (4) In these "sunset reviews," Commerce assesses whether revocation of the AD or CVD order or termination of a suspended investigation would be likely to lead to continuation or recurrence of dumping or subsidization (5); the Commission then assesses whether revocation of the order or termination of a suspended investigation would be likely to lead to continuation or recurrence of material injury. (6) If Commerce concludes that dumping or subsidization is not likely to continue or recur, or the Commission concludes that injury is not likely to continue or recur, the order will be revoked. (7)

B. Judicial Review of the Commission's AD/CVD Determinations

Generally, an interested party (8) who appeared as a party in the Commission's investigation may appeal the Commission's determinations in AD/CVD proceedings to the Court of International Trade. (9) Such a plaintiff may appeal the Commission's negative preliminary injury determinations in AD/CVD investigations, its final injury determinations in AD/CVD investigations (whether negative or affirmative), and its sunset review determinations. (10) After the CIT issues its final decision in the appeal, the losing party may appeal to the Federal Circuit. (11)

When reviewing a Commission determination on appeal, the courts do not conduct a de novo review of the record evidence. Instead, the statute directs the courts to apply one of two standards of review on appeal. …