AD/CVD Court Decisions In Second Half of October 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 second half of October 2010.

Chinese Steel Fastener Currency Subsidization Suit “Unfit for Review”

When the International Trade Commission made a negative determination in regards to whether imports of standard steel fasteners from China were injuring U.S. producers, the International Trade Administration (ITA) ended its parallel AD-CVD investigations. Nucor Fastener challenged both the ITC’s negative injury determination and the ITA’s decision not to investigate an alleged subsidization through currency manipulation. However, the CIT has ruled that Nucor’s appeal is unfit for review until it first prevails in its challenge of the ITC’s negative injury determination, since otherwise the ITA would make no final determination of its own. A ruling in the ITC case is expected in December. (See ITT’s Online Archives or 11/10/09 news, 09111040, for BP summary of the ITC’s negative AD and CVD determinations) (Slip Op. 10-121, dated 10/22/2010)

Thai Plastic Bag Producers Lose Bid to Challenge AD Review Results

Thai producers objected to the ITA’s adjustment of overhead and labor costs in the sales-below cost test and the calculation of constructed value, in the AD administrative review of plastic bags from Thailand for the period August 1, 2007 through July 31, 2008. However, the CIT ruled that the plaintiffs’ arguments were in part contradicted by their filings with the agency, and in part were not supported by prior timely arguments in briefs submitted during the review. (Slip Op. 10-122, dated 10/26/10)

Japanese Ball Bearing Importer Prevails in 20-Year Battle on Incorrect Liquidation

The ITA wrongly issued liquidation instructions for ball bearings imported by Shinyei Corp. of America between May 1, 1990 and April 30, 1991 at the cash deposit rate of 45.83% rather than at the correct final AD rates of between 1.8% and 16.71%, despite a pending lawsuit over the rate, then resisted the company’s appeals in part on the basis that “deemed liquidation” had occurred and could not be reversed. In litigation efforts dating from 1998, Shinyei eventually gained a court order for reimbursement. Now, the CAFC has again overruled the CIT and ordered an award of legal fees as well, finding the government’s repeated errors and omissions were not “substantially justified.” (See ITT’s Online Archives or 05/13/08 news, 08051340 for BP summary of prior CAFC ruling in the same case.) (Appeal Number 2010-1178, dated 10/22/10)

Crawfish Producers’ Byrd Amendment Action Will Proceed

After multiple delays, the CAFC ruled that the suit by PS Chez Sidney, LLC against the ITC, the U.S. Customs Service, the Crawfish Professors Alliance and the Louisiana Department of Agriculture and Forestry, over the distribution of AD duties to U.S. crawfish producers, may proceed. The court ordered that arguments addressing the constitutionality of the Continued Dumping and Subsidy Offset Act of 2000 (CDSOA, or Byrd Amendment) must be omitted, since those issues were resolved definitively in separate litigation. (See ITT’s Online Archives or 06/3/08 news, 08063050, for BP summary of CIT ruling upholding CBP’s determination that Sidney must exhaust all appeals before gaining Byrd Amendment distributions.) (Appeal Number 2008-1526, dated 10/22/2010)