Overview of 2009 decisions by the U.S. Court of International Trade in appeals of determinations of the U.S. International Trade Commission.

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

I. INTRODUCTION

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.

A. The NSK Court Requires Bratsk Analysis in ITC's Sunset Determination on Ball Bearings

NSK's appeal arose from the 2006 sunset review determination of the orders against ball bearings from China, France, Germany, Italy, Japan, Singapore, and the United Kingdom. (3) The CIT has issued three remand orders in this appeal, and the case is still pending, awaiting the Court's ruling on the ITC's third remand determination.

The ITC had concluded in the second sunset review of these orders that revocation would likely lead to a continuation or recurrence of material injury to the domestic industry. (4) NSK--a corporation that both produces bearings domestically and imports them from affiliates in Japan and the United Kingdom--had challenged the ITC's decision to continue the orders against Japan and the United Kingdom specifically, claiming that the ITC failed properly to address the significance of non-subject imports in its injury analysis. The CIT agreed, noting in particular:

   Although the ITC does in fact briefly address non-subject
   imports in the Confidential Views here, all of the discussion on
   the issue occurs in a single footnote.... This decision requires
   the ITC to provide a more expansive explanation as to why
   continuation of the underlying order is justified in light of
   significant increases in non-subject imports. (5)

Thus, the court affirmed the ITC's findings regarding likely volume and price effects of the subject imports but remanded to the ITC "for a full analysis of non-subject imports pursuant to Bratsk and to reassess supply conditions within the domestic industry." (6)

Shortly after NSK I, the Federal Circuit issued its decision in Mittal, clarifying its earlier holding in Bratsk. (7) In Mittal, the Federal Circuit made it clear that it had not intended to impose a prospective "replacement/ benefit" test as the ITC claimed was required by Bratsk. Instead, the Federal Circuit explained in Mittal that the "focus of the inquiry is on the cause of injury in the past, not the prospect of effectiveness [of an order] in the future." (8) Based on the Federal Circuit's explanation in Mittal, the ITC filed a motion for reconsideration of the court's remand instructions in NSK I, arguing that the decision in Mittal clarified that Bratsk requires a retrospective, rather than prospective, analysis and therefore cannot be applied to sunset reviews which are intended to predict the likely future effect of revocation of an order.

The CIT denied the motion and in its opinion concluded that "Mittal does not limit Bratsk to retrospective causation analyses." (9) The court specifically noted that "the Federal Circuit did not expressly reject the application of Bratsk to sunset reviews in Mittal," (10) and further the court noted that it "cannot accept that with a single paragraph the Federal Circuit would foreclose the application of Bratsk to sunset reviews without expressly and affirmatively stating that conclusion." (11) In terms of the applicability of Bratsk to sunset reviews, the court emphasized that there is an element of causation in sunset reviews and that Bratsk speaks to the causation analysis in cases involving commodity products where price-competitive non-subject imports are a significant factor in the market. In short, the court explained:

   While the central focus of the causation inquiry under [section]
   1675a(a) (1) remains prospective--i.e., whether revocation of an
   order would be likely to lead to continuation or recurrence of
   material injury to the domestic industry--subsections (A) through
   (C) indicate there are necessary elements of the causation analysis
   in a sunset review that are retrospective in nature such that the
   ITC must analyze whether the subject imports were themselves the
   substantial cause of the injury suffered. Thus, in considering
   those factors under [section] 1675a(a) (1), the ITC is to examine
   whether the subject imports were the cause of injury in the past
   and whether they would be likely to lead to continuation or
   recurrence of injury in the future if the antidumping order is
   removed. (12)

On remand, the ITC again determined that revocation of the orders against Japan and the United Kingdom would be likely to lead to a continuation or recurrence of material injury to the domestic industry. (13) In NSKIII, the court remanded the case for a second time, noting that the ITC "acted contrary to law when it failed to genuinely comply with the court's remand instructions." (14) In particular, the court reprimanded the agency for dedicating "nearly a third of its remand analysis to vociferously disagree with the court's holding in NSK I." (15) The court further admonished the ITC that "without a more faithful adherence to the court's remand instructions and thorough analysis of non-subject imports, the court is not convinced that the ITC conducted a meaningful inquiry on the issue of causation on remand." (16) In its review of the ITC's remand determination, the court found on the issue of causation that the agency used "broad conclusory statements" and "unpersuasive and incomplete reasoning." (17) Thus, the court concluded that "[i]n its second remand determination, the agency must perform a more focused analysis on the causation issue to determine whether the subject imports are more than a mere minimal or tangential cause of injury in light of the significant presence of non-subject imports in the domestic market. Without that analysis, the ITC cannot 'give full consideration to the causation issue and ... provide a meaningful explanation of its conclusions.'" (18)

On the issue of cumulation, the agency fared no better. The court first took issue with the ITC's discussion of the restructuring of the domestic ball bearing industry, finding an "absence of a rational connection between the facts and conclusions in the Remand Determination". (19) Next, the court complained that the ITC's analysis of nonsubject imports did "nothing more than assert broad conclusions, with each statement lacking concrete and rational grounds for the agency's ultimate determination." (20) Finally, with respect to the effect of significant restructuring on the vulnerability of the domestic industry, the court concluded that the ITC "merely recite [d] positions that the court found unpersuasive in NSK I." (21) Accordingly, the court remanded again for the ITC to address further both causation and cumulation.

The ITC issued its second remand determination on January 5, 2010, in response to the remand in NSK III. Again, the ITC determined that the orders against Japan and the United Kingdom should be continued. On April 12, 2010, the CIT remanded for a third time, sustaining in part and remanding in part the ITC's Second Remand Determination. (22) Specifically, the court sustained the ITC's vulnerability finding but found that the record did not support an affirmative finding of discernible adverse impact concerning subject imports from the United Kingdom. The court also concluded that it could not address the remaining issues of causation and likely impact of subject imports because the ITC had failed to support its cumulation determination with substantial evidence.

On August 25, 2010, the ITC issued its third remand determination. Notably, the ITC reversed its determination with respect to the United Kingdom, concluding that such imports would not be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time. However, the ITC noted in its remand decision that it was "compelled by the Court to determine that U.K. subject imports are not likely to have a discernible adverse impact upon revocation, and therefore may not cumulate U.K. subject imports with the other four subject countries." (23) At the same time, the ITC noted that it continued to believe that the record supported its original decision to cumulate …