Overview of 2009 Decisions by the U.S. Court of International Trade in Appeals of Determinations of the U.S. International Trade Commission
Young, Kimberly R., Waite, Frederick P., Georgetown Journal of International Law
TABLE OF CONTENTS I. INTRODUCTION II. THE COURT CONSIDERS THE IMPACT OF BRATSK AND MULTINATIONALS IN SUNSET REVIEWS A. The NSK Court Requires Bratsk Analysis in ITC's Sunset Determination on Ball Bearings B. The Court Finds Flaws in ITC's Analysis of Likely Import Volumes by "Mittal Countries" in Hot-Rolled Steel Sunset III. THE COURT SHOWS DEFERENCE TO ITC DETERMINATIONS IN ORIGINAL INVESTIGATIONS A. The Court Finds Substantial Evidence Supported the ITC's Negative Injury Determination in the Glycine Investigation B. The Court Refuses to Re-weigh Evidence in the ITC's Threat Determination in Lightweight Thermal Paper C. The Court Affirms the ITC's Remand Decision Reversing the Negative Injury Determination in Diamond Sawblades IV. THE COURT CONSIDERS MANDAMUS PETITIONS IN DIAMOND SAWBLADES DURING PENDENCY OF FEDERAL CIRCUIT APPEAL V. THE COURT ISSUES SUMMARY OPINIONS AFTER LENGTHY COURT-ORDERED STAYS PENDING THE OUTCOME OF RELATED APPEALS A. The Court Affirms the ITC's 2002 Negative Injury Determination Concerning Steel Wire Rod from Germany B. The Court Dismisses 2006 Appeal of the ITC's Sunset Determination in Uranium from Russia After U.S. Supreme Court Decision VI. CONCLUSION
When the U.S. International Trade Commission ("ITC" or "Commission") makes a determination in an antidumping or countervailing duty ("AD/CVD") proceeding or in a five-year sunset review of an AD/CVD order, interested parties may appeal that determination to the U.S. Court of International Trade ("CIT" or "court"), which has jurisdiction to review such determinations pursuant to 28 U.S.C. [section] 1581 (c). This article provides an overview of the decisions issued in 2009 by the CIT in appeals of determinations by the Commission.
During 2009, the CIT issued several decisions reinforcing the deferential standard of review--the substantial evidence standard--that is applied by the court in appeals of ITC determinations. In addition, the CIT decided two cases in 2009 that were marked by highly unusual events--first, a remand determination in which the Commission reversed its original negative determination and second, a trade decision issued by the U.S. Supreme Court in United States v. Eurodif SA. But the most significant and far-reaching issues raised by the CIT's decisions in 2009 were the unresolved split in the court on the applicability of Bratsk in sunset reviews; the undecided question about the applicability of Bratsk in threat cases; and the question raised by two mandamus petitions--whether filing an appeal to the U.S. Court of Appeals for the Federal Circuit ("Federal Circuit" or "CAFC") suspends the legal consequences of a CIT decision. These issues will likely have to wait for resolution by the Federal Circuit.
II. THE COURT CONSIDERS THE IMPACT OF BRATSK AND MULTINATIONALS IN SUNSET REVIEWS
In 2009, the U.S. Court of International Trade issued remand orders in two appeals involving five-year sunset review determinations of AD/GVD orders by the ITC. In one of these cases--NSK Corp. v. United States--the court held that the Federal Circuit's decision in Bratsk (1) also applies to sunset reviews and remanded the case for the ITC to properly analyze the significance of non-subject imports in light of Bratsk and Mittal Steel Point Lisas Ltd. v. United States. (2) In the other sunset appeal--Nucor Corp. v. United States--the court affirmed the Commission's decision to cumulate three countries separately from the rest where the same multinational company (ArcelorMittal) was the primary producer in each of those three countries. However, the court found that the ITC's likely volume analysis was flawed and remanded for further explanation the ITC's determination that the orders against the "Mittal Countries" should be revoked. …