Justia U.S. Federal Circuit Court of Appeals Opinion Summaries

In 2003 the Department of Commerce, responding to a petition by the domestic wheat industry, found that Canadian wheat had been sold in the United States at less than fair value and issued an anti-dumping order. A North American Free Trade Agreement (NAFTA) binational panel remanded and Commerce found that the dumping had not materially injured the domestic industry. The NAFTA panel affirmed. Revocation of the anti-dumping order stated ârevocation does not affect the liquidation of entries made prior to January 2, 2006â and instructed Customs to liquidate earlier entries at the rate in effect at the time of entry. The Trade Court granted an injunction against liquidation of those duties and held that the Canadian Wheat Board was entitled to return of deposited unliquidated anti-dumping duties. The Federal Circuit affirmed, first holding that the Trade Court had jurisdiction under 28 U.S.C. 1581. The case did not involve unauthorized review of a NAFTA panel decision, but Commerce's implementation of the decision. Characterizing the decision to not return anti-dumping duties as "bizarre and unfair," the court stated that retaining the duties cannot be valid if the underlying order is invalid. Return of the duties does not constitute a retroactive remedy.

The Department of Commerce has employed a technique known as "zeroing" when it investigates a claim that a foreign producer is "dumping" products in the United States at a price below the price in the country of origin. Using zeroing, margins for sales of merchandise sold by a particular exporter at dumped prices are aggregated and margins for sales at non-dumped prices are given a value of zero; the alternative, known as "offsetting," involves aggregating both dumped and non-dumped prices. The statute, 19 U.S.C. 1677(35)(A), refers to calculation of a "dumping margin" equal to "the amount by which the normal value exceeds the export price." Domestic producers read the word "exceeds" as requiring zeroing. The Federal Circuit has previously upheld use of zeroing in both investigation and administrative review. Following a World Trade Organization decision disapproving the practice, the Department began using offsetting for investigations and zeroing in administrative review. The Court of International Trade upheld the practice. The Federal Circuit reversed, holding that the Department had not adequately justified use of two different interpretations of an ambiguous statute.

The company imports components for home storage and organization systems. The U.S. Customs Service liquidated wall panels and locator tabs as "other articles of plastic" rather than as furniture. The company filed protests and requested that the parts be reclassified under duty free provisions. Customs denied the protests. The Court of International Trade ruled in favor of Customs. The Federal Circuit reversed and remanded. While the lower court examined appropriate authority in defining "unit furniture," it incorrectly determined that a storage panel with hooks was like a wall rack rather than furniture. Noting the various accessories and configurations available with the system, the court stated that the product's versatility is the "very essence of unit furniture."