AD/CVD Court Decisions for December 16 - 31 2009

The decisions of the Court of International Trade (CIT) for December 16-31, 2009 involved antidumping or countervailing duty law are summarized as follows:

Court Rules Against ITA 15-Day Liquidation Instruction Policy, Upholds Zeroing

For the administrative reviews of the AD duty orders on ball bearings and parts thereof from France, Germany, Italy, Japan, and the U.K., for the period May 1, 2006 through April 30, 2007, the CIT upheld the ITA's request for cost data from a foreign exporter's unaffiliated supplier, but ruled out penalizing that exporter for the supplier's failure to provide timely information. Regarding the ITA's "zeroing" methodology, i.e., giving zero weight to non-dumped sales in calculating the overall dumping margin, the court again upheld the agency's approach. Most importantly, the court ruled that the policy of issuing liquidation instructions 15 days after publication of the final results of an administrative review invites "a race to the courthouse" and is not in accordance with law. SKF USA Inc. et al v. U.S. and the Timkin Company, dated December 21, 2009, available at http://www.cit.uscourts.gov/slip_op/Slip_op09/09-148.pdf

Challenge to Ironing Tables First Review Remand Results Rebuffed

Following the finals results of the first AD administrative review of floor-standing metal-top ironing boards from China, for the period August 1, 2004, through July 31, 2005, on a voluntary remand the ITA abandoned an innovation it had attempted to adopt in valuing a Chinese producer/exporter's purchases from market economy suppliers, opting to revert to its standard practice of using prices paid as the value basis for such inputs. Domestic producer Home Products International, Inc. sought to argue that the ITA's approach in the subsequent review, which became known in the meantime, suggested a better alternative approach and should serve as a precedent for the conduct of the first review's remand results, but the Court rejected this logic and upheld the remand results. Home Products International Inc. v. U.S. (Slip Op. 09-144), dated December 17, 2009, available at http://www.cit.uscourts.gov/slip_op/Slip_op09/Slip%20Op%2009-144.pdf

Court Upholds Final Results of 2nd Review in Ironing Tables from China

Domestic producer Home Products International, Inc. challenged the ITA's use of a certain Indian manufacturer's audited 2004-2005 financial results to provide expense and profit ratios in the review of the AD duty order of floor-standing metal-top ironing tables from the China for the period August 1, 2005, through July 31, 2006. The Chinese exporter Since Hardware (Guanzghou) Co., Ltd. gained a de minimis dumping rate in the review (0.34%). The CIT upheld the agency's choice of surrogate ratio data as reasonable given facts then known, even though information that emerged after the final results could have led to a different determination. Home Products International, Inc. v. U.S (Slip Op. 09-145), dated December 17, 2009, available at http://www.cit.uscourts.gov/slip_op/Slip_op09/Slip%2009-145.pdf

Hot-Rolled Carbon Steel from India CVD Review for 2006 Remanded to ITA

Indian producer/exporter Essar Steel challenged the ITA's calculation of prices for iron ore and sales taxes in the administrative review of the CVD order on certain hot-rolled carbon steel flat products from India for the period January 1, 2006 through December 31, 2006, and domestic producers faulted the ITA's failure to account for five new subsidies. The Court remanded the ITA's determinations in part, to adjust certain parts of the iron ore costs, to re-examine whether the Central Sales Tax expense was correctly accounted for, and to assess the benefits from two Indian state industrial programs. United States Steel Corporation and Nucor Corporation v. U.S., dated December 30, 2009, available at http://www.cit.uscourts.gov/slip_op/Slip_op09/09-152.pdf

2004-2005 Ball Bearings Review Gets Partial Remand Order

Consolidating multiple suits over the results of the AD administrative reviews of ball bearings and parts thereof from France, Germany, Italy, Japan, and the U.K., for the period May 1, 2004, through April 30, 2005, the CIT upheld the ITA's use of zeroing in margin calculations, its change in model-match methodology from prior reviews, and its treatment of JTEKT Corp. (formerly Koyo Seiko) and its affiliate as a single entity, among other issues. The Court also ruled out as contrary to law the redetermination of NTN's freight expense and the over-broad use of facts available for Nachi. Finally, the Court ordered the ITA to reconsider several issues affecting model-match, freight expense allocation, and interest expense applicable to inventory carrying costs. JTEKT Corporation and Koyo Corporation v. U.S and the Timken Company., dated December 18, 2009, available at http://www.cit.uscourts.gov/slip_op/Slip_op09/09-147.pdf