In this paper, we provide a brief discussion of several of the major issues in judicial decisions issued since October 1990 reviewing International Trade Commission (Commission or ITC) antidumping countervailing duty determinations. For the most part, these decisions are variations on themes that had arisen many times in the preceding decade of Trade Agreements Act judicial review. Where appropriate, we have given brief background discussions of the leading cases. In addition, after out discussion of the issues, we have forth brief summaries of the decisions issued by the Commission's reviewing courts since October 1990.
I. The Different Roles of Commerce and the Commission
The bifurcated system of antidumping and countervailing duty law administration has produced several lawsuits in which the plaintiff's underlying argument is that the Commission should ignore or undo a determination that has been made by the Commerce Department (Commerce) or should take action when Commerce has not. The ITC's position is that the statute provides a division of authority between the two agencies, and that the commission lacks the statutory means by which to second-guess the actions of Commerce. The Commission repeatedly has noted that Commerce has the authority to initiate an investigation and to define the imports that are subject of that investigation.
The ITC, for its part, defines the appropriate domestic industry and determines the condition of that industry. Moreover, the ITC has taken the position that it cannot terminate an investigation for lack of domestic industry support - that is, standing - because to do so would impinge on Commerce's authority to initiate an investigation. Because the purpose of the ITC's like product analysis is to ascertain the relevant domestic industry, the commission will not exclude a group of allegedly "noncompeting" imports from the scope of an investigation set forth by Commerce. Such an exclusion to do so would constitute a redefinition of the imports subject to investigation.(2)
This approach has been upheld by the reviewing courts. In Algoma Steel Corp. v. United States,(3) the Court of International Trade (CIT) and the Federal Circuit upheld the Commission's approach of considering the entire "class or kind" of merchandise subject to an affirmative Commerce determination, rather than culling "fair" sales from the class or kind - that is, refusing separately to consider non-dumped sales in its analysis. The CIT succinctly summarized the two agencies' different roles:
In applying this statute, ITC does not look behind ITA's determination, but accepts ITA's determination as to which merchandises is in the class of merchandise sold at [less than fair value]. ITC, on the other hand, determines what domestic industry produces products like the ones in the class defined by ITA and whether that industry is injured by the relevant imports.(4)
In Sony Corp. of America v. United States,(5) the court look the Algoma rationale one step further, finding that the ITC is statutorily bound to consider the impact of all imports in the Commerce-defined class or kind of less than fair value (LTFV) merchandise on the domestic industry producing a like product. The court rejected the position that the Commission should have excluded allegedly non-competing imports from its affirmative determination.(6)
Another issue concerning the relative authority of the two agencies is whether the ITC can determine if the petition has the requisite domestic industry support. The courts had not decided this question before October 1990.
B. Cases Decided Since October 1990
The CIT addressed an additional refinement to the exclusion argument in United Eng'g & Forging v. United States.(7) The plaintiff had argued that its products were produced to customer specification, rather than sold off-the-shelf, and that two of its major sales had never been investigated by Commerce(8) and therefore could not be considered by the commission to have been made at less than fair value. …