AD/CVD Court Decisions in First Half of May 2010

The Court of International Trade and the Court of Appeals for the Federal Circuit decided the following antidumping and countervailing duty law determinations in the first half of May 2010.

ITA Regs and China AD Wooden Bedroom Furniture Labor Rate Unlawful

Rejecting the use of labor rate data from high-income countries, and from countries that do not produce comparable merchandise in valuing Chinese wooden bedroom furniture, the CAFC concluded that Congress intended to require the use of data from economically comparable countries in non-market economy AD calculations, except where such data are not available. The CAFC therefore ruled that the ITA’s NME labor rates regulation is unlawful. Dorbest et al v. U.S. et al, decided May 14, 2010, available at http://www.cafc.uscourts.gov/opinions/09-1257.pdf

Poly Bag Importer Gets Second Chance at Individually Calculated AD Rates

In the August 1, 2006 through July 31, 2007 AD administrative review of polyethylene retail carrier bags from Thailand, an importer who sought unsuccessfully to be included in the review, and gave all its sales data to the ITA as a voluntary respondent, ended up facing a liquidation rate of 122.88% as a result of its Thai supplier, a mandatory respondent, opting not to cooperate with the ITA. But the ITA “should have either considered the importer’s information or explained why it declined to do so”, pursuant to the statute, the CIT ruled, in remanding the case to the ITA. KYD, Inc. v. U.S. et al,decided May 6, 2010, available at http://www.cit.uscourts.gov/slip_op/Slip_op10/Slip%20Op%2010-50%20PUBLIC.pdf

ITA Told to Re-examine Chinese Hand Truck Maker’s Government Ties, Again

In the AD administrative review of hand trucks and certain parts thereof from China for the period December 1, 2005 through November 30, 2006, the ITA assigned Qingdao Taifa a PRC-wide dumping margin of 383.60% based on total adverse facts available, because of multiple attempted deceptions and because the local town government owned a majority of the firm’s shares. In a prior remand, the CIT ordered the ITA to determine the level of government control over the firm and possibly calculate a separate AD rate. Dissatisfied with the ITA’s first remand effort, the court has now renewed these instructions. Qingdao Taifa Group Co., Ltd. v. U.S. et al, decided May 12, 2010, available at http://www.cit.uscourts.gov/slip_op/Slip_op10/10-53.pdf

Whirlpool Gains Injunction in Korean Corrosion Resistant Steel

Following the final results of the AD administrative review of certain corrosion resistant carbon steel flat products from Korea for the period August 1, 2007 through July 31, 2008, Whirlpool Corp moved for a temporary restraining order and preliminary injunction to prevent the liquidation of its entries subject to the review, pending further litigation. The CIT ruled that Whirlpool had shown that it would be immediately and irreparably injured, and that the other judicial criteria for granting an injunction were met, and granted it. Union Steel and Whirlpool Corp. v. U.S. et al, decided May 13, 2010, available at http://www.cit.uscourts.gov/slip_op/Slip_op10/10-54.pdf

Steel Nails from UAE Investigation’s Zero Rate Left Unchanged by CIT

A group of domestic producers objected to the ITA’s final 0% AD duty rate determination in the AD investigation of certain steel nails from the United Arab Emirates, for which the agency used a revised method for conducting targeted dumping analysis (examining individual prices instead of only averages). The ITA gave interested parties only 16 days to comment on the new method, but the court denied the domestic parties’ challenge to the ITA’s approach. Mid Continent Nail Corp. et al. v. U.S, decided May 4, 2010, available at http://www.cit.uscourts.gov/slip_op/Slip_op10/10-47.pdf

Remand Results With 10% AD Rate Upheld in Chinese OTR Tires Investigation

Domestic producers contested the ITA’s determination that fifteen of the raw material inputs a Chinese producer used were indirect materials, in the October 2006 through March 2007 investigation of off-the-road tires from China, which yielded a 0% AD rate. After a CIT remand, the ITA altered its calculations and found an AD margin of 10%. Now, a Chinese manufacturer has unsuccessfully challenged the remand results, which the CIT upheld. Bridgestone Americas, Inc. v. U.S. decided May 14 , 2010, available at http://www.cit.uscourts.gov/slip_op/Slip_op10/10-55%20with%20errata.pdf

Canadian Citric Acid Maker Denied Standing in Challenge to ITC Injury Determination

After Chinese producers and exporters of citric acid challenged the final affirmative injury determination of the International Trade Commission on imports of citric acid from China and Canada, Canadian producer Jungbunzlauer Canada Inc. (JBL) sought to “intervene as a matter of right” with respect to Chinese imports only. However, the court ruled that “[I]n a civil action under 19 USC 1516a, only an interested party who was a party to the proceeding in connection with which the matter arose may intervene,” and denied JBL’s motion. Shandong TTCA Biochemistry Co. v. U.S., decided May 14, 2010, available at http://www.cit.uscourts.gov/slip_op/Slip_op10/10-56.pdf