AD/CVD Court Decisions In First Half of August 2010
The Court of International Trade (CIT) and the Court of Appeals for the Federal Circuit (CAFC) made the following antidumping and countervailing duty law determinations in the first half of August 2010.
CIT Rejects Combo AD and CV Duties for NME’s in Chinese Off-Road Tires Case
Chinese producers in the ITA’s 2007-2008 AD and CV investigations of off-the-road (OTR) tires challenged the ITA’s use of combined AD and CV margins in non-market economy cases, among other issues. In its remand redetermination, the ITA had proposed offsetting CV margins against AD margins, but the court found that this approach would burden respondents with two investigations, while the combined rates would always equal the NME AD margin. In a ruling likely to mean lower combined rates in the future for diverse imports from China and other non-market economy countries1, the CIT rejected outright the combining of AD and CV tariffs on imports from NME’s, and ordered the agency to forego imposing CV duties on OTR tires from China. (See ITT’s Online Archives or 08/09/10 news, 10080911, for detailed summary of CIT decision.) http://www.cit.uscourts.gov/slip_op/Slip_op10/10-84.pdf
For Chlorinated Isocyanurates from China, CIT Ends Requirement to Serve Liquidation Injunctions on Named Individuals at Agencies
The ITA sought to dismiss a suit by Chinese producer Jiheng Chemical over the AD administrative review of chlorinated isocyanurates (pool chlorine) from China for the period June 1, 2006 through May 31, 2007. The ITA claimed that the firm had failed to properly serve copies of the court injunction on two specific government officials, and as a result, “deemed liquidation”2 had occurred, rendering the complaints moot. However, the CIT reasoned that the injunction was intended to prevent liquidation for any reason, whether “deemed” or based on instructions from the ITA, and denied the ITA’s motion to dismiss. The court instead amended the injunction to eliminate the requirement to serve the specific officials. http://www.cit.uscourts.gov/slip_op/Slip_op10/10-86.pdf
CIT Backs ITA’s Reversal in Re-initiating Magnesium from China AD Review
Tianjin Magnesium International requested a one-year deferral of the ITA’s AD administrative review of pure magnesium from China for the period May 1, 2006 through April 30, 2007, and the agency granted it, but reversed itself when a domestic petitioner objected. Tianjin sued over this step, among other issues. U.S. Magnesium LLC also challenged several ITA calculations and the agency’s refusal to issue a combination rate to Tianjin (to give a higher rate than 0.63%). The court ruled that Tianjin’s complaints over the re-initiation of the review could not be heard since the company failed to include them in its briefs in the course of the review. The court also directed the ITA to revise or redo its valuation of scrap produced in magnesium production and its selection of Indian surrogate magnesium producers, and dismissed the U.S. producers’ claim that the ITA should assign a combination rate to Tianjin. http://www.cit.uscourts.gov/slip_op/Slip_op10/10-87.pdf
In Heavy Forged Hand Tools from China, Court Selects Lower Country-Wide Rate
In the AD administrative review of heavy forged hand tools from China for February 1, 2005 through January 31, 2006, the ITA gave Shandong Machinery a country-wide rate of 45.42%, a rate from the 1991 investigation. In an earlier remand the court found the 1991 rate to be unverified and directed the ITA to find a different rate “that has been corroborated according to its reliability and relevance to the country-wide entity as a whole.” The ITA, after finding that all rates from the current review would be lower than the previous rate and thus would reward a failure to cooperate, submitted for its remand results a rate of 109.16%, based on one sale in a more recent prior review. However, the court found this higher rate even less acceptable, and instructed the ITA, in a further remand, to revert to the 45.42% rate after all, but with more corroboration. http://www.cit.uscourts.gov/slip_op/Slip_op10/10-88.pdf
Appeals Court Overrules CIT, Upholds ITA in Thai Shrimp AD Investigation
In the less-than-fair-value investigation of certain frozen warmwater shrimp from Thailand, the ITA determined there was no viable home market and based fair value on constructed value. To derive a profit ratio for producer Thai-I-Mei, the ITA used profit data from the third country sales of two other respondents, after first excluding sales made below cost or between affiliates. The CIT disallowed this approach as not strictly called for by the agency’s regulations. However, the CAFC, reasoning that “[c]onstructing values for use in antidumping investigations is by necessity imperfect,” found the ITA’s exclusion of sales made outside the ordinary course of trade in deriving a profit ratio to be reasonable, and reversed the CIT’s ruling. http://www.cafc.uscourts.gov/images/stories/opinions-orders/09-1516.pdf
1The current list of NME countries is Armenia, Azerbaijan, Belarus, China, Georgia, the Kyrgyz Republic, Moldova, Tajikistan, Uzbekistan, and Vietnam.
2Under deemed liquidation, entries not liquidated within six months of the removal of suspension of liquidation, as occurs following the final results of an AD administrative review, are deemed liquidated at the entered rate.