United States Court of International Trade
Negative Injury Determinations Made By the ITC Were Sustained
Before the Court in T.B. Wood’s Inc. v. United States et. al., Slip Op. 18-164, Court No. 17-00022 (November 29, 2018) was plaintiffs challenge to the negative injury determination made by International Trade Commission (“ITC”) in an antidumping duty investigation of iron mechanical transfer drive components (“IMTDCs”) from Canada and China and a parallel countervailing duty investigation of these products from China. For the following reasons, the negative injury determinations were sustained. Plaintiffs challenged five aspects of the ITC’s determination: first, that the ITC failed to reconcile its conclusion that there was no correlation between subject imports and domestic industry performance with basic economic logic; second, that the ITC failed to explain adequately its conclusions regarding market share due to unreliable data; third, that the ITC failed to acknowledge a gap in the data it collected and unlawfully relied on the data without adjustment; fourth, that the ITC’s price-effects analysis was unsupported by substantial evidence; and fifth, that the ITC did not support or explain adequately its conclusions regarding the impact of subject imports on the domestic industry.
Where “a party seeks review of a final ITC determination … the court shall hold unlawful any determination, finding, or conclusion found . . . to be unsupported by substantial evidence on the record.” Id. at 6. The Court rejected plaintiff’s economic logic argument because record evidence demonstrated “the volume of the subject imports did not show a sustained pattern of increasing significantly throughout the period of investigation (“POI”) and the share they occupied of the U.S. market remained relatively steady.” Id. at 14. In regards to the ITC’s determinations on market share, the Court said “because the ITC satisfactorily explained its methodology, the court cannot agree with plaintiff that the ITC acted contrary to law by failing to acknowledge the limits of its data.” Id. at 17. Plaintiff’s next argument on data also failed because “T.B. Wood’s has not shown that the Commission lacked necessary information, nor does it identify what information the ITC could have or should have used.” Id. at 18. The Court sustained the ITC’s determinations on price effect because “substantial record evidence supports the Commission’s finding of no clear trend in domestic pricing and … price depression.” Id. at 19. The Court found that the Commission’s negative finding was supported by substantial record evidence because the ITC could readily could see, through its collected data “that a number of changes in the indicia of the industry’s condition, including indicia on overall profitability, correlated temporally with changes in demand … but not with changes in the volume of cumulated subject imports.” Id. at 23.
Motion for Summary Judgment Denied
Before the Court in United States v. Greenlight Organic, Inc., Slip Op. 18-165, Court No. 17-00031 (November 29, 2018) was the defendant’s motion for summary judgment in an action by the United States Government for fraud in the course of importing merchandise into the United States. Greenlight argued the “Government’s action is time-barred by the five-year statute of limitations set forth in 19 U.S.C. § 1621 because the Government became aware of Greenlight’s fraudulent activities in 2011, more than five years before filing the summons and complaint in this case.” Id. at 1-2. For the following reasons the Court denied the defendant’s motion.
“A statute of limitations requires a plaintiff to pursue diligent prosecution of known claims and promotes justice by preventing surprises through plaintiff’s revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.” Id. at 4. The language of 19 U.S.C. § 1621 “tolls the statute of limitations period until the date when the plaintiff first learns of the fraud.” Id. at 4. The Court said that “more facts are needed to ascertain when the Government first had knowledge of Greenlight’s fraudulent misclassification and undervaluation activities, including when the Government began to suspect a potential double invoicing scheme and when the Government had knowledge of an intent to defraud with respect to the misclassification of entries.” Id. at 5. Despite denying the motion for summary judgement, the Court noted the issue could be presented at trial.
Remand Decision Sustained
Before the Court in Zhaoqing Tifo New Fibre Co. v. United States et. al., Slip Op. 18-168, Court No. 13-00044 (November 30, 2018) were Commerce’s determinations on remand regarding the administrative review of the antidumping duty order on polyester staple fiber from China. Plaintiff originally argued the dumping margin calculated by Commerce double counts certain energy costs because those costs are reflected in the surrogate financial ratios that Commerce used and then are counted again elsewhere in the agency’s calculations for the factors of production. The Court had previously remanded the issue to Commerce for reconsideration. On remand, Commerce, under protest to the Courts remand, excluded the costs of energy from the factors of production (“FOP”) database, to avoid double-counting energy expenses. For the following reasons Commerce’s results made under protest were sustained in full, and the agency’s arguments made regarding the protest were denied.
Commerce argued that instead of excluding energy cost from the FOP the agency should be allowed to choose another surrogate. The Court said “the selection of financial statements is … beyond the scope of this litigation … no party contends that Zhaoqing Tifo’s Complaint includes a claim challenging Commerce’s selection of financial statements.” Id. at 27. The Court said it was not within the power of Commerce to reconsider the choice of surrogate data in the case. In addition, the Court noted “Commerce elected not to reopen the administrative record to seek evidence that might have” clarified the manner in which surrogate financial statements account for energy and that ultimately the protest to the Court’s order was the agency’s own doing. Id. at 35.