AD/CVD Court Decisions In First Half of April 2010

The Court of International Trade (CIT) and the Court of Appeals for the Federal Circuit (CAFC) decided the following antidumping and countervailing duty law determinations in the first half of April 2010.

CIT Denies Challenge to Softwood Lumber Funds Distribution Plan

Domestic producers of softwood lumber challenged the provision of the September 12, 2006 Softwood Lumber Agreement between the U.S. and Canada that called for the Government of Canada to distribute $500 million exclusively to members of the Coalition for Fair Lumber Imports, but the CIT determined that it has no jurisdiction over the matter. Almond Bros. Lumber Co. et al. v. U.S. and Ron Kirk, U.S. Trade Representative, decided April 8, 2010, available at: http://www.cit.uscourts.gov/slip_op/Slip_op10/10-37.pdf

Appeals Court Holds “Dusted” Shrimp are Included in Scope of Shrimp AD Order

In its February 1, 2005 less-than-fair-value determinations, the ITA excluded “dusted shrimp”¹ from the AD orders on certain frozen warmwater shrimp from Brazil, Ecuador, India, China, Vietnam and Thailand. However, on remand from the CAFC, the CIT ordered the ITA to add this category of product to the scope, and the CAFC upheld this step. (See ITT’s Online Archives or 07/14/09 news, (Ref: 09071430), for BP summary of the CIT’s remand.)Ad Hoc Shrimp Trade Action Committee et al. v. U.S. et al., decided April 14, 2010, available at http://www.cit.uscourts.gov/slip_op/Slip_op10/10-39.pdf

Chinese Mixed Wax Candle Exporter Loses Appeal of Adverse AD Rates

Deseado International, Ltd., a Chinese manufacturer, sought to exclude its mixed wax candles (with less than 50% petroleum wax), from the AD administrative review of petroleum wax candles from China for the period August 1, 2005 through July 31, 2006, though the ITA had previously determined that such candles fell within the scope of the order. When Deseado then failed to provide all the information the ITA requested in the review, the ITA assigned it an AD rate of 108.3%, a result upheld first by the CIT and now by the CAFC. Deseado International, Ltd. v. U.S. and National Candle Association, decided April 5, 2010, available athttp://www.cafc.uscourts.gov/opinions/09-1355.pdf

Dumping Margins from Prior Periods are Valid for “Corroboration,” CIT Rules

In the first AD administrative review of wooden bedroom furniture from China, for the period June 24, 2004 through December 31, 2005, the ITA assigned a group of Chinese manufacturers led by Starcorp Furniture Co. Ltd. a total adverse facts available rate of 216.01%, a rate the ITA later corroborated on remand using examples of sales during the earlier investigation period. The court upheld this methodology. Fujian Lianfu Forestry Co., Ltd et al. v. U.S., decided April 5, 2010, available at http://www.cit.uscourts.gov/slip_op/Slip_op10/10-34.pdf

Brazilian OJ Maker Allowed to Correct AD Submissions After Preliminary Results

A Brazilian producer sued over the ITA’s methods in the first AD administrative review of certain orange juice from Brazil for the period August 24, 2005 through February 28, 2007, alleging various errors and challenging the agency’s refusal to admit corrected information into the record after the preliminary results. The court upheld the ITA’s methods in part but ordered it to use the exporter’s corrected data on how to convert U.S. prices per gallon to per-kilo amounts. Fischer S.A. Comercia, Industria and Agricultura et al. v. U.S. and Florida Citrus Mutual et al., decided April 6, 2010, available at http://www.cit.uscourts.gov/slip_op/Slip_op10/10-35.pdf

Pasta AD Results Partly Remanded in 2006-07 Review

In the AD administrative review of certain pasta from Italy for the period July 1, 2006 through June 30, 2007, the CIT upheld the ITA’s classification of Italian pasta maker Pasta Zara SpA’s U.S. sales as constructed export price sales, but ordered the ITA to reconsider whether accounting costs are direct expenses, and whether Zara’s home market sales are at the same level of trade as its U.S. sales. Pasta Zara S.p.A. v. U.S. and American Italian Pasta et al., decided April 7, 2010, available at http://www.cit.uscourts.gov/slip_op/Slip_op10/10-36.pdf

CAFC Agrees ITC Properly Revoked Corrosion-Resistant Steel Orders

In the second sunset determination on the AD and CV duty orders on corrosion-resistant carbon steel products from Australia, Canada, France, Germany, Japan, and Korea (announced December 14, 2006), the International Trade Commission continued the orders for Germany and Korea and revoked the others, drawing a challenge from domestic manufacturers for its decision not to “cumulate,” or group, the imports of the leading exporting countries. The CIT upheld the sunset review results, and the CAFC concurred. Nucor Corp. and Steel Dynamics, Inc. et al. v. U.S. et al., decided April 7, 2010, available at http://www.cafc.uscourts.gov/opinions/09-1234.pdf

CIT Rejects ITC’s Methods in Ball Bearing Sunset Review for Third Time

Following the ITC’s second remand determination in the 2000-2005 sunset review of AD duty orders on ball bearings from Japan and the UK, the CIT once again remanded the case for more evidence on whether to cumulate imports from the UK with those of other countries, and on the likely injury to U.S. industry from increased imports, stating, “the path taken by the administrative body must be reasonably discernible.” NSK Corp. et al. and Fag Italia S.p.A., et al. v. U.S. and Timken Company, decided April 12, 2010, available at http://www.cit.uscourts.gov/slip_op/Slip_op10/10-38.pdf

Diamond Sawblades Coalition Must Await Appeals Rulings

Domestic manufacturers sought to lift the stay on their litigation contesting certain aspects of the ITA’s May 22, 2006 less-than-fair-value investigation of diamond sawblades from China, a stay that dates from October 2006, but the CIT ruled that the stay is still necessary pending appeals of its earlier rulings on the order, now on the docket at the CAFC. Diamond Sawblades Manufacturers’ Coalition v. U.S. et al. decided April 15, 2010, available at http://www.cit.uscourts.gov/slip_op/Slip_op10/10-40.pdf

ITA’s Recalculation of Depreciation in Turkish Rebar Ruled out at CAFC

In the final results of the AD administrative review of certain steel concrete reinforcing bars from Turkey, the ITA increased a Turkish company’s depreciation expenses to include part of a foreign exchange loss the company carried on its balance sheet indefinitely, against accounting norms. The adjustment resulted in a dumping margin, and on remand the CIT ordered the ITA to remove it. The CAFC has now upheld that remand order. (See ITT’s Online Archives or 05/22/09 news, (Ref: 09052250), for BP summary of the CIT’s remand.)Nucor Corp, Inc. et al. v. U.S. et al., decided April 12, 2010, available at http://www.cafc.uscourts.gov/opinions/09-1476.pdf

¹Dusted shrimp is a shrimp-based product (1) that is produced from fresh (or thawed-from-frozen) and peeled shrimp; (2) to which a “dusting” layer of rice or wheat flour of at least 95% purity has been applied, so that the entire surface of the shrimp flesh is thoroughly and evenly coated with the flour; (3) that the non-shrimp content of the end product constitutes between 4% to 10% of the product’s total weight after being dusted, but prior to being frozen; and (4) that is subjected to IQF freezing immediately after application of the dusting layer.