A review of the Court of International Trade's 2014 decisions addressing trade remedy determinations of the U.S. International Trade Commission.

Author:Casson, Andrea C.
Position:P. 27-53
  1. INTRODUCTION II. OVERVIEW OF THE COMMISSION'S RESPONSIBILITIES IN AD/CVD PROCEEDINGS AND JUDICIAL REVIEW OF THE COMMISSION'S INJURY DETERMINATIONS A. The Commission's Responsibilities Under the AD/CVD Statute B. Judicial Review of the Commission's AD/CVD Determinations III. THE COURT OF INTERNATIONAL TRADE'S DECISIONS INVOLVING THE COMMISSION'S INJURY DETERMINATIONS IN 2014 A. The Court Affirms the Commission's Treatment of Post-Petition Data in Three Cases 1. LG Electronics v. USITC: The Court's Affirmance of the Commission's Determination to Discount the Value of Post-Petition Data 2. JMC Steel Group v. United States: The Court's Affirmance of the Commission's Exercise of its Discretion to Not Discount the Post-Petition Data 3. CP Kelco v. United States: The Court's Affirmance of the Commission's Determination that the Filing of the Petition did not Result in Post-Petition Effects 4. Conclusion Regarding Post-Petition Data Cases B. Siemens Energy v. United States: The Court Upholds the Commission's Tie-Vote Affirmative Determinations 1. The Court Rejects Siemen's Challenge to the Application of the Tie-Vote Provision 2. The Court Upholds the Commission's Factual Findings as Supported by Substantial Evidence C. The Court's Decisions Involving Review of the Commission's Determinations in the Washers Investigations 1. The Court Denies Plaintiffs' Second Attempt to Stay the ITC Litigation Pending Final Resolution of the Companion Commerce Cases 2. The Court Upholds the Commission's Affirmative AD and CVD Determinations in Washers D. Decisions In 2014 Involving Remands To The Commission 1. Swiff-Train Co. v. United States: The Court Upholds the Commission's Remand Determination in All Respects a. Domestic Industry Definition b. Price Effects Analysis c. Causation i. The Commission's Remand Views ii. Discussion of Causation in Swiff-Train II 2. Downhole Pipe Equip. LP v. United States: The Court Provides Further Explanation of its 2013 Decision and Affirms the Commission's Remand Determination a. Downhole Pipe II: The Court Denies Defendant Intervenors' Motion for Reconsideration b. Downhole Pipe III: The Court Affirms the Commission's Negative Remand Determination 3. JMC Steel Group: The Court Affirms Most Aspects of the Commission's Determination but Remands on Two Grounds a. Summary of the Court's Opinion b. The Commission's Remand Views Provide Further Explanation and Clarification Concerning the Two Remanded Issues i. The Commission's Clarification Concerning Lost Sales and Revenues Allegations ii. The Commission's Explanation of Its Business Cycle Analysis c. Conclusion Regarding JMC E. Zhanjiang Guolian Aquatic Products Co. v. United States: The Court Dismisses Plaintiff Importer's Case for Lack of Subject Matter Jurisdiction Because Plaintiff Failed To Demonstrate Any Injury Required To Establish Standing I. INTRODUCTION

    In 2014, the United States Court of International Trade (the court or the CIT) issued nine opinions involving antidumping (AD) and countervailing duty (CVD) determinations issued by the U.S. International Trade Commission (Commission or ITC). All of these involved original AD and CVD investigations; none involved sunset reviews. Three of these opinions addressed jurisprudential or procedural matters concerning the court's administration of its litigation, and the rest addressed the substance of the ITC's determinations. In all but one of the six opinions involving a review of the ITC's findings, the court affirmed the entirety of the ITC's decision, while it affirmed-in-part and remanded-in part to the ITC on narrow grounds in the sixth case. Of the five affirmances, the court affirmed the ITC's determinations on the first pass in three cases, and affirmed remand determinations in the other two. Three of the merits cases involved affirmative final determinations by the Commission, and three involved negative final determinations by the Commission.

    With respect to the three procedural matters, in one the court denied defendant-intervenors' motion for rehearing (of a decision issued by the court in 2013). In the second, the court denied plaintiffs' motion to sever and stay a single count in their complaint. In the third, the court granted defendant-intervenors' motion to dismiss a complaint for lack of standing.

    In the next section of this Article, we provide an overview of the relevant statutory framework and the Commission's role in antidumping and countervailing duty proceedings. In the third section, we turn to discussion of the CIT's decisions in 2014. First, we discuss three court cases addressing the same statutory provision. This discussion focuses on the factual-specific ways in which the Commission addresses the treatment of so-called "post-petition" data, and the court's review of these determinations.

    In the next two sections, we discuss cases in which the court upheld Commission determinations in their entirety notwithstanding various legal and substantial evidence challenges to those determinations. Specifically, these discussions address the CIT's affirmances of the Commission's tied-vote affirmative determinations in the Wind Towers investigation and the Commission's affirmative determinations in the Washers investigation.

    We continue this article with a discussion of cases involving remands to the Commission. In two of these cases, the CIT in 2014 affirmed remand determinations issued by the Commission in response to previous CIT orders. In the third case, the CIT in 2014 remanded one issue, amongst various other issues that were raised by plaintiffs. We discuss both the points affirmed by the CIT and the issue remanded. Finally, we conclude this article with a summary of a case involving the CIT's jurisdiction over challenges to ITC determinations.

  2. Overview of the Commission's Responsibilities in AD/CVD Proceedings and Judicial Review of the Commission's Injury Determinations

    1. 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. (1) 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. (2) 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 order covering the imports in question. (3)

      In making its material injury determinations, the Commission considers the volume of subject imports and the effect of subject imports on prices in the U.S. market for the domestic like product. (4) In evaluating price effects, the Commission considers whether there has been "significant" underselling of the domestic like product by subject imports and whether subject imports otherwise depress "prices to a significant degree or preven[t] price increases, which otherwise would have occurred, to a significant degree." (5)

      If the Commission finds no present material injury by reason of the subject imports, it turns to the question of whether there is a threat of material injury by reason of such imports. The statute sets outs nine factors for the Commission to consider "among other relevant economic factors," in its threat evaluation. (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) whereas 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. (10)

    2. Judicial Review of the Commission's AD/CVD Determinations

      Generally, an interested party (11) who appeared as a party in the Commission's investigation may appeal the Commission's determinations in AD/CVD proceedings to the CIT. (12) Such a plaintiff may appeal the Commission's negative preliminary injury determinations in AD/ CVD investigations, its final injury determinations in AD/CVD investigations (whether negative or affirmative), and its sunset review determinations. (13) After the court issues its final decision in the appeal, the losing party may appeal to the Federal Circuit. (14)

      When reviewing a Commission determination on appeal, the courts do not conduct a de novo review of the record evidence. Instead, the statute directs the courts to apply one of two standards of review on appeal. (15) If the appeal involves a negative preliminary injury determination, a determination not to initiate a changed circumstances review, or a determination in an expedited sunset review, the court will decide whether the determination is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." (16) For all other appeals involving AD/CVD determinations, the court must decide whether the Commission's determination is "unsupported by substantial evidence on the record, or otherwise not in accordance with law. (17) Both of these standards require the courts to give deference to the...

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