AD/CVD Court Decisions In First Half of October 2010

The Court of International Trade (CIT) and the U.S. Court of Appeals for the Federal Circuit (CAFC) made the following antidumping and countervailing law determinations, or released the public versions of such, in the first half of October 2010.

CBP’s Deemed Liquidation Unlawful, No Protest Needed, in AD Spain Isocyanurates

American importer Alden Leeds posted AD cash deposits at 24.83% for entries of chlorinated isocyanurates manufactured in Spain by Aragonesas Industrias in the AD administrative review period of June 1, 2006 through May 31, 2007, and the ITA later determined the assessment at 4.07%. Although liquidation was suspended during the review in progress, U.S. Customs and Border Protection nevertheless posted a Bulletin Notice stating the importer’s entries were deemed liquidated. When the importer then sued to recover the approximately $400,000 in excess cash deposits, CBP claimed the importer had failed to file a timely protest to its bulletin. However, the court ruled that since liquidation had been suspended, no deemed liquidation could have taken place (and no protestable event existed), and denied Customs’ motion to dismiss the importer’s suit. (Slip Op. 10-102, dated 09/07/10).

China OTR Tires Must Still Pay CV Duties as “Double Counting” Appeal Pending

Having won an earlier ruling to remove CV duties that would overlap with AD duties, Chinese off-the-road tire producers sought an injunction to lift CV duty deposits from their imports prior to the final results of redetermination on second remand of the AD determination. But the court, citing the unsettled state of the law, a pending appeal by the government, and the absence of irreparable harm, denied the motion. (See ITT’s Online Archives or 08/09/10 news, 10080911, for BP summary of CIT ruling against the ITA’s approach of assigning both AD and CV duties.) (Slip Op. 10-112 dated 10/01/10).

China Ironing Tables Producer Gave False Info, but May Get Own Adverse AD Rate

Chinese manufacturer Since Hardware (Guangzhou) Co. Ltd. challenged the ITA’s application of an adverse, China-wide rate of 157.68% in the final results of the AD administrative review of floor standing metal-top ironing tables and certain parts thereof from China for the period August 1, 2006 through July 31, 2007. The firm’s questionnaire responses and accounting records included “unreliable and incomplete” documentation, including fraudulent price and country of origin data for claimed market economy purchases, the ITA found. The court agreed some kind of adverse facts available were justified but remanded to the ITA the question of whether the company should lose its separate rate (to be assigned the China-wide rate) or be given a different, individually calculated adverse rate (Slip Op. 10-108 dated 09/27/10)

Walgreens Loses Appeal of Chinese Tissue Paper AD Scope Ruling

Walgreen Co. appealed a decision by the CIT upholding the ITA’s finding that Chinese tissue paper in the drug chain’s gift bag sets is covered by the AD order on certain tissue paper products from China. The drug chain argued that the paper made up only six to eleven percent of the cost of the gift bag sets, but the ITA held that since the paper on its own is covered merchandise, it does not get excluded from the scope of the order just by being included with other gift-wrap items in a set. The CAFC affirmed the CIT’s stance in favor of the ITA. (See ITT’s Online Archives or 11/24/09 news, 09112440, for BP summary of CIT ruling.) (Opinion 2010-1136, dated 10/08/10)

ITA’s Discontinuation of “Zeroing” in AD Investigations Upheld on Steel Appeal

U.S. Steel and Nucor Corp. appealed the CIT’s decision in favor of the ITA and its abandonment of “zeroing” in certain AD investigations following a 2006 WTO ruling. (Zeroing is the practice of excluding negative or non-dumped margins in calculating overall dumping margins, usually resulting in higher margins and higher duties: the ITA continues to use zeroing in AD administrative and new shipper reviews.) The plaintiffs argued that Congress intended that all dumping margins be calculated using the zeroing approach, but both the CIT and the CAFC disagreed, and upheld the ITA’s new approach. (See ITT’s Online Archives or 08/03/09 news, 09080340, for BP summary of CIT ruling. See ITT’s Online Archives or 01/08/07 news, 07010825, for BP summary of ITA’s elimination of zeroing for average-to-average comparisons in AD investigations) (Opinion 2009-1572, -1573, dated 10/04/10)

In Ball Bearings Suit, CIT Again Upholds “Zeroing” in AD Administrative Reviews

Following the AD administrative review of ball bearings and parts thereof from France, Germany, Italy, Japan, & the U.K. for the period May 1, 2008 through April 30, 2009, NSK Bearings Europe Ltd. challenged the ITA’s practice of zeroing negative dumping margins and moved for a preliminary injunction against liquidation of its entries. NSK cited a NAFTA bi-national panel ruling which disallowed zeroing in the 2004-2005 AD administrative review of stainless steel sheet and strip from Mexico, and cited also a press report suggesting that the U.S. intends to comply soon with WTO policy against zeroing in AD reviews. The court however noted that NAFTA panel rulings need not be consistent with U.S. court rulings, and upheld the zeroing practice as applied by the ITA. See ITT’s Online Archives or 01/08/07 news, 07010825, for BP reference to WTO’s ruling against certain U.S. zeroing in AD administrative reviews) (Slip Ops. 10-117 and 10-118, dated 10/15/10).

No Liquidation in Thai Shrimp Pending Appeal of 2006-2007 AD Review

A coalition of U.S. shrimp producers sued unsuccessfully over the results of the AD administrative review of certain frozen warmwater shrimp from Thailand for the period February 1, 2006 through January 31, 2007, in which the ITA chose a sample of four respondent companies based on import volume. With an appeal underway at the CAFC, five Thai producers sought to have their entries liquidated without awaiting the appeal, arguing that their dumping margins were not at issue, only the ITA’s respondent selection method. The court declined to alter the injunction on liquidation, ruling that the CAFC could void the final results and restart the administrative process. (Slip Op. 10-109, dated 09/27/10).