AD/CVD Court Decisions In First Half of September 2010

The Court of International Trade (CIT) and the U.S. Court of Appeals for the Federal Circuit (CAFC) made public the following antidumping and countervailing duty law determinations in the first half of September 2010.

Court Upholds ITA: Transshipment Investigations Belong at CBP

In the course of the AD administrative review of silicon metal from China for June 1, 2006 through May 31, 2007, domestic producer Globe Metallurgical alleged that Ferro-Alliages & Mineraux Inc. had transshipped subject merchandise from China through Canada to avoid AD duties. The ITA determined that to investigate the allegation as part of the AD administrative review would cause it to miss its deadlines. The agency later granted the petitioners a scope review, but ultimately reasoned that by statute, transshipments through third countries, when no work is done on the merchandise, fall to the CBP to examine as mislabeling cases (the ITA can initiate an anti-circumvention investigation only if work is performed on the merchandise in the third country). The court agreed and upheld the ITA’s decisions. (Slip Op. 10-100, dated 09/01/10)

Court Faults Use of “Type 3” Consumption Entry Data to Pick Respondents in Thai Shrimp AD Review

Both sides sued over the final results of the AD administrative review of frozen warmwater shrimp from Thailand for the period February 1, 2007 through January 31, 2008. Domestic producers questioned the use of “Type 3” consumption entry data from U.S. Customs and Border Protection to select the four largest shippers as mandatory respondents, and a price offset for U.S. sales being made at a “lower level of trade” than home market sales. Thai producers challenged the ITA’s refusal to admit late-submitted data or reduce costs to reflect interest earnings. The court remanded to the ITA its use of CBP Type 3 consumption entry data to select mandatory respondents, while conceding that the selected firms would likely not change, but upheld the agency on the other three challenges to its methods. (Slip Op. 10-99, dated 09/01/10)

CAFC Upholds Vietnamese Frozen Shrimp First AD Admin Review Results

In the first AD administrative review of certain frozen warmwater shrimp from Vietnam (which the ITA lists as a non-market economy), covering the period July 16, 2004 through January 31, 2006, domestic producers challenged the ITA’s use of published industry survey data rather than costs from a large single producer, and its elimination of an unprofitable surrogate company in deriving financial expense ratios, an approach the agency had not taken consistently in the past. The CAFC faulted the CIT for dismissing the complaints just because the same issues had already emerged in litigation over later reviews, but opted not to remand the case to the CIT “in the interest of judicial economy,” and ruled in favor of the ITA based on the record. (See ITT’s Online Archives or 11/12/09 news, 09111260, for BP summary of earlier CIT decision.) (Appeal 2010-1027, dated 09/08/10)

Fish Filets from Vietnam AD Admin Review Results Upheld

In the AD administrative review of certain frozen fish fillets from Vietnam for the period August 1, 2006 through July 31, 2007, domestic producers sued over the ITA’s use of Indonesian rather than Bangladeshi fish values, and Vietnamese producer QVD questioned the ITA’s choice of surrogate company financial statements, its calculation of freight expenses and its denial that certain other calculations were ministerial errors. The court upheld the agency on all counts, finding the steps at issue to have been justified by the case facts, and dismissing the late allegation of clerical errors. (Slip Op. 10-101, dated 09/01/10)

Follow-on Challenge to HEDP Investigation Results Dismissed

Following the CIT’s dismissal of their complaints against the ITA’s conduct of the less-than-fair value investigation of hydroxyethylidene-1,1-diphosphonic acid (HEDP) from China, Chinese producers Changzhou Wujin Fine Chemical Factory Co., Ltd. and Jiangsu Jianghai Chemical Group, Ltd. claimed the court erred in sustaining the ITA’s adjustment of U.S. price for a standard industry commission rate. However, the CIT found that the ITA’s price adjustment reflected valid information on the record, and denied the Chinese producers’ motions for reconsideration. (See ITT’s Online Archives or 09/02/10 news, 10090217, for BP summary of prior court decision in litigation on the same review) (Slip Op. 10-103, dated 09/13/10).

Remand Results Upheld in Carbon Steel Flat Products from India CVD Review

Following a remand ordering more support for various adjustments to costs and prices in the final results of the CVD review of certain hot-rolled carbon steel flat products from India for the period January 1, 2006 through December 31, 2006, the court sustained all the ITA’s adjustments, including those to the government and benchmark prices, the addition of Central Sales Tax to iron ore, the inclusion of certain import duties and fees, adjustments for delivery and handling expenses and iron slurry pipe transportation costs, and the choice not to add any value for two state-level Industrial Policy benefits. (See ITT’s Online Archives or 01/05/10 news, 10010550, for BP summary of court remand) (Slip Op. 10-104, dated 09/13/10).