Under 28 U.S.C. [section] 1581(c), the U.S. Court of International Trade possesses jurisdiction to review the antidumping and countervailing duty ("AD/CVD") determinations issued by the U.S. International Trade Commission (the "ITC" or "Commission") pursuant to Title VII of the Tariff Act of 1930, as amended. (1) During 2008, the court issued eighteen decisions addressing issues arising out of actions brought under [section] 1581 (c). Of the fifteen Commission injury and sunset determinations reviewed in 2008, the court affirmed all but two, reflecting, to a substantial degree, the deferential standard of review applicable to such appeals. (2) This article focuses on the decisions of the Court of International Trade involving the most significant or interesting legal issues that arose in these cases, including the issue of whether the replacement/benefit test outlined in Bratsk Aluminum Smelter v. United States (also known as the Bratsk test) is applicable to sunset reviews, the reasonableness of the Commission's analysis of cumulation in sunset reviews, and reconsideration.
The body of this article is organized into five sections. The first section briefly reviews the Commission's responsibilities in the AD/ CVD area, as well as the principles of appellate review that apply to the Commission's decisions. The next three sections address the court's decisions concerning the application of Bratsk to sunset reviews, cumulation in sunset reviews, and reconsideration requests and proceedings before the Commission. Each section provides background information on the topic, followed by summaries of the relevant court holdings in each case and, lastly, an analysis of their significance to practitioners. The last section, concerning other interesting legal issues, analyzes relevant court holdings in three cases relating to the extent to which plaintiff-intervenors are entitled to a preliminary injunction against the liquidation of their entries pending an appeal, the exhaustion doctrine, and the extent to which new Commissioners must comply with the court's remand instructions.
II. THE COMMISSION'S RESPONSIBILITIES IN AD/CVD PROCEEDINGS AND APPELLATE REVIEW OF THE COMMISSION'S INJURY DETERMINATIONS (3)
A. The Commission's Responsibilities under the AD/CVD Statute
The International Trade Commission is one of two federal agencies responsible for making the determinations necessary to impose an AD or CVD 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, commonly referred to as "dumped" prices, and whether the producer's sales have been subsidized by a foreign government. (4) 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. (5) 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. (6)
Once an order is issued, the Commission and Commerce must review the order 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. (7) 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. (8) The Commission assesses whether revocation of the order or termination of a suspended investigation would be likely to lead to continuation or recurrence of material injury. (9) 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. …