The U.S. Court of International Trade in 2011: Appeals from the U.S. International Trade Commission and Department of Labor

By Pickard, Daniel B.; Landis, Alexandra E. | Georgetown Journal of International Law, Fall 2012 | Go to article overview

The U.S. Court of International Trade in 2011: Appeals from the U.S. International Trade Commission and Department of Labor


Pickard, Daniel B., Landis, Alexandra E., Georgetown Journal of International Law


TABLE OF CONTENTS

  I. INTRODUCTION
 II. TURNING THE COMMISSION AROUND; THE ITC AND THE COURT
     FACE OFF OVER REMANDS IN NSK CORP. AND NUCOR FASTENER
     DIVISION
     A. From a Positive to a Negative, Finally Getting on the Ball:
        The Court Affirms the ITC'S Fourth Remand Determination
        of No Discernible Adverse Impact in NSK Corp
     B. Fighting the Good Fight: The Court Remands a Flawed
        Negative Preliminary Injury Determination in Nucor
        Fastener Division
III. THE COURT DENIES TAA ELIGIBILITY CERTIFICATION BASED ON
     "DOWNSTREAM PRODUCER" DEFINITION
 IV. CONCLUSION

I. INTRODUCTION

Pursuant to 28 USC [section] 1581 (c), (1) the Court of International Trade has exclusive jurisdiction to review antidumping and countervailing duty determinations made by the U.S. International Trade Commission (ITC). While the standards of review applied by the Court to appealed ITC determinations vary slightly based upon the type of determination issued, (2) these standards afford considerable deference to the decision-making expertise of the ITC. Notably, the Court may not examine de novo the evidence presented on the underlying administrative record; it may review only whether the ITC's final determination was reasonably supported by record evidence or was otherwise contrary to law. Further, in instances where the ITC's determination is found to be legally inadequate, the Court cannot simply reverse outright the determination in question. Instead, the Court must remand the determination for reconsideration by the ITC itself. (3)

In 2011, the Court issued eight slip opinions in connection with ITC determinations. (4) This Article will focus primarily on two of those eight that illustrated the Court's remand authority: NSK Corp. v. United States (5) and Nucor Fastener Division v. United States. (6)

The Court also has exclusive jurisdiction over actions challenging determinations by the Department of Labor (Labor) regarding eligibility for Trade Adjustment Assistance (TAA). (7) Only one case concerning TAA eligibility certification came before the Court in 2011, and is more thoroughly examined following the discussion below.

II. TURNING THE COMMISSION AROUND: THE ITC AND THE COURT FACE OFF OVER REMANDS IN NSK CORP. AND NUCOR FASTENER DIVISION

The ITC rarely reverses its initial determination as a result of judicial review. Where the Court finds that an ITC determination is unsupported by substantial evidence on the record, the Court can remand that determination for further consideration by the ITC. (8) However, remands rarely result in a change of heart at the agency level, regardless of file extent of the fault found with the determination in question. It is a rare event for the ITC to convert its affirmative determinations into negative determinations. Even more rarely has a remand resulted in a negative original injury determination in favor of an affirmative one. Indeed, the ITC has but once in the last decade thus reversed a negative determination in an original investigation. (9)

A. From a Positive to a Negative, Finally Getting on the Ball: The Court Affirms the ITC's Fourth Remand Determination of No Discernible Adverse Impact in NSK Corp.

In what it believed would be its "final visit" to Consolidated Case (or Docket) No. 06-00334, the Court sustained the ITC's fourth remand determination in its second five-year or "sunset" review of antidumping duty orders on certain ball bearings from France, Germany, Italy, Japan, Singapore, and the United Kingdom. (10) At the conclusion of the second sunset review of the orders in 2006, the ITC issued affirmative injury determinations with regard to Japan and the United Kingdom, among others, which became the subject of this appeal, it Plaintiffs NSK Corp., JTEKT Corp. (JTEKT), and Koyo Corp. of U.S.A. (collectively, the plaintiffs) appealed the affirmative injury determination in 2006, challenging the ITC's finding that revocation of the underlying orders on subject merchandise from Japan and the United Kingdom would likely lead to a continuation or recurrence of material injury to the domestic industry within a reasonably foreseeable time.

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