The United States Court of International Trade in 2010: Is Commerce Suffering from Adverse Decisions It Wasn't Double-Counting On?
Lewis, Craig A., Stoel, Jonathan T., Janovitz, Brian S., Georgetown Journal of International Law
TABLE OF CONTENTS I. INTRODUCTION II. ARE THE REINS ON AFA TIGHTENING? A. Application of AFA--Is One Failure Grounds for Invalidating Everything? B. Lawfulness of the Selected AFA Rate--The Sky Is Not the Limit III. THE GPX CASES--CAN COMMERCE HAVE ITS CAKE AND EAT IT TOO? A. GPX Appeal Background B. GPX Initial Decision C. Commerce's First Remand Decision and Second CIT Decision D. Commerce's Second Remand Decision and Final CIT Decision IV. DO TWOMBLY AND IQBAL MATTER? V. CONCLUSION
The U.S. Court of International Trade (CIT) in New York is an Article III court with the powers in law and equity of a federal district court, (1) but with a specialized docket limited to claims relating to federal international trade law and administration. (2) Most prevalent among the cases falling within the court's jurisdiction are claims against the United States contesting the denial of a protest by U.S. Customs and Border Protection (CBP) (so-called "(a)" jurisdiction claims, by reference to the relevant statutory subsection), (3) claims challenging determinations by the U.S. Department of Commerce (Commerce) and the U.S. International Trade Commission (ITC) in antidumping duty and countervailing duty proceedings ("(c)" jurisdiction claims), (4) and "residual jurisdiction" claims that are not otherwise specified in the jurisdictional statute, but "arise" from federal laws relating to international trade that are within the CIT's jurisdiction ("(i)" jurisdiction). (5) In addition to claims against the United States, claims by the United States for collection of duties, penalties, and liquidated damages also fall within the CIT's jurisdiction and are occasionally brought before the tribunal. (6)
During 2010, the CIT issued 142 opinions. This makes 2010 a relatively light year for CIT opinions, (7) a result that may not be surprising in light of the depressed economic circumstances during most of the last three years. The opinions issued in 2010 also reflect an ordinary range of subject matter. As in the past, the overwhelming majority of the opinions (83 in total) adjudicated "(c)" claims contesting antidumping and countervailing duty determinations or matters and a majority of the residual "(i)" jurisdiction cases also involved claims relating to the administration of antidumping and countervailing duty matters such as the timing and content of liquidation instructions issued by Commerce. (8) A relatively smaller, but by no means insignificant, share of the cases (28 in total) involved "(a)" claims contesting the denial of protests. (9) However, even these "(a)" cases in several instances involved claims relating to liquidations involving antidumping or countervailing duties. (10) Only seven opinions issued in 2010 involved claims by the United States seeking to collect duties, penalties and liquidated damages. (11)
Thus, the CIT docket in 2010 remains overwhelmingly dominated by appeals contesting the issuance and administration of trade remedies. What have the issues been within this area? For the most part, they are familiar types of claims--challenges of principally case-specific relevance, such as the selection of "surrogate values" (12) and standards for classifying inputs as "direct" or "indirect" material (13) in non-market economy (NME) antidumping cases, the calculation of indirect selling expense adjustments, (14) or the lawfulness of a decision to rescind an antidumping duty new shipper review based on a finding that an export sale is not "bona fide." (15) Other opinions have addressed calculation methodologies of broader application in antidumping or countervailing duty proceedings, such as the proper basis for determining the recovery of costs, (16) the use of "zeroing" in the margin calculation, (17) the lawfulness of the test employed by Commerce to identify "targeted dumping," (18) Commerce's authority to correct calculation errors after a final determination is issued, (19) whether Commerce has the authority to reinstate a respondent under an antidumping order pursuant to a "changed circumstances review," (20) whether Commerce in NME cases can lawfully subject companies without separate rate to the "China-wide" margin when at least one named exporter fails to qualify for separate rate, (21) and whether Commerce is required to conduct a circumvention inquiry in the context of an administrative review. …