2013 International Trade Law Decisions of the Federal Circuit

INTRODUCTIONThe 2013 term at the U.S. Court of Appeals for the Federal Circuit was replete with a variety of important international trade law decisions. As in past terms, the majority of cases addressed challenges to antidumping orders and administrative review processes. However, this term also included a significant case pertaining to alleged discrimination within the Harmonized Tariff Schedule.1 Another case involved a complaint by U.S. lumber firms challenging the authority of the U.S. Trade Representative2 (USTR). The court also addressed a unique First Amendment challenge to an antidumping order-arguing that a negative response to an administrative questionnaire should not be used against a party in a duty determination.3 Additionally, six classification cases provided valuable insight into the U.S. Customs and Border Protection's ("Customs") discretion in identifying a proper tariff heading.This Article is not organized in order of case significance, but rather on the content of the opinions. The first Part focuses on antidumping decisions-discussing ten precedential decisions. The second Part addresses classification issues-providing an overview of six precedential cases. The remaining two Parts address rule of origin and procedural cases. While many unique issues were raised at the Federal Circuit this term, the scope of the court's review and its deference to regulatory agencies was consistent with prior terms.I. PRECEDENTIAL ANTIDUMPING CASESIn Ashley Furniture Indus., Inc. v. United States,4 the United States had imposed an antidumping order on laminated woven sacks from China at a countrywide rate of 91.73%.5 Zibo Aifudi Plastic Packaging Co, Ltd. ("Aifudi"), an exporter subject to this rate, applied to the U.S. Department of Commerce (Commerce) for a separate rate-claiming that it was not subject to control by the government of the People's Republic of China ("PRC").6 Commerce accepted Aifudi's claim and established a preliminary separate rate of 64.28%.7 Aifudi then withdrew from the administrative proceeding and asked that their confidential information submissions be destroyed. Commerce subsequently determined that Aifudi was subject to the country-wide rate because evidence no longer existed in the record to justify a separate rate. The question in AMS Associates, Inc. v. United States8 was whether unverified evidence should be used by Commerce to justify establishing a separate antidumping duty rate.9In response to the request of Aifudi's and others, Commerce initiated an administrative review of the antidumping order for a specific time period-naming Aifudi a mandatory respondent in the review.10 Aifudi provided both public and confidential answers to the questionnaires along with documents it had not provided in the original separate-rate finding.11After receiving the responses, but prior to their verification, Commerce made a preliminary determination that Aifudi was eligible for a separate rate of only 0.68% due to an absence of control by the Chinese government.12 Aifudi then withdrew from the review process and asked Commerce to destroy all the confidential information collected.13 Commerce complied and, finding Aifudi noncompliant, assigned Aifudi the countrywide rate of 91.73%.14 Commerce used Aifudi's withdrawal as an adverse factor in assigning them the countrywide rate.15Following Commerce's decision to apply the countrywide rate to Aifudi, Shapiro Packaging, an importer of laminated woven sacks exported by Aifudi, argued that the countrywide rate should not apply to Aifudi based on the material provided to Commerce.16 In reviewing Shapiro's claims, the court applied a substantial evidence standard to sustain the Court of International Trade's (CIT) finding that Commerce had properly found Aifudi did not carry its burden of proving entitlement to a separate rate.17 According to the court, evidence that the company at issue experiences neither de jure nor de facto government control must be offered to rebut the presumption of government control. …