April 2009 Antidumping and Countervailing Court Decisions
The following cases involving antidumping or countervailing duty (AD/CVD) issues were decided at the Court of International Trade (CIT) and the Court of Appeals for the Federal Circuit (CAFC) in April 2009.
Sign up for a free preview to unlock the rest of this article
If your job depends on informed compliance, you need International Trade Today. Delivered every business day and available any time online, only International Trade Today helps you stay current on the increasingly complex international trade regulatory environment.
CIT Upholds ITA's Packaging Values in Mushrooms-from-China AD Case
In the administrative review of certain preserved mushrooms from China for the period February 1, 2005 through January 31, 2006, China Processed Food Import & Export Company and affiliates (COFCO) challenged ITA's choice of values for glass jars and its attribution of costs and profits to packaging items supplied for free by the U.S. customers. However, the CIT found the agency's methods consistent with its practice and the AD statute. (China Processed Food Import & Export Company v. United States, CIT Slip Op. 09-34, dated 04/30/09, available at http://www.cit.uscourts.gov/slip_op/Slip_op09/Slip%20Op%2009-34.pdf.)
CIT Affirms "Zeroing" in Dumping Calculations
Respondents in the AD administrative review of ball bearings from France, Germany, Italy, Japan, and the U.K., for the period May 1, 2004 through April 30, 2005, contested ITA's practice of excluding U.S. sales made at prices above normal value (i.e., not dumped), in its calculations, arguing that ITA should calculate a weighted average dumping margin using all transactions, per WTO rules, not only those with positive dumping margins. However, the court denied the challenge to ITA's "zeroing' policy (SKF USA INC., SKF France S.A., SKF Aerospace France S.A.S., SKF GmbH, and SKF Industrie S.p.A., v. United States, CIT Slip Op. 09-32, dated 04/17/09 available at http://www.cit.uscourts.gov/slip_op/Slip_op09/Slip-Op%2009-32.pdf.)
CIT Rejects ITA's15-Day Period for Seeking Injunctions as Too Short
In the above suit, SKF also argued that ITA's practice of issuing liquidation instructions to U.S. Customs & Border Protection within 15 days of its final determinations is contrary to statutory requirements for 60 days in which to seek an injunction to contest the agency's results. The court agreed with plaintiffs that 15-days is too short, but disagreed that the statute requires 60 days, and remanded the issue to ITA. (SKF USA INC., SKF France S.A., SKF Aerospace France S.A.S., SKF GmbH, and SKF Industrie S.p.A., v. United States, CIT Slip Op. 09-32, dated 04/17/09 available at http://www.cit.uscourts.gov/slip_op/Slip_op09/Slip-Op%2009-32.pdf.)
CIT Disallows ITA Recalculation of AD Respondent's Depreciation Expense
ITA erred when it opted to recalculate the depreciation expenses of Ekinciler Demir ve Celik Sanyi A.S. and Ekinciler Dis Tacaret A.S. in the AD administrative review of certain steel concrete reinforcing bars from Turkey for the period April 1, 2005 through March 31, 2006, the CIT held, reminding ITA of its statutory duty to "reasonably reflect the costs associated with the production and sale of the merchandise," and not to act as "financial statements police." (Nucor Corp., Gerdau Ameristeel, Inc., and Commercial Metals Co. v. U.S et al., CIT Slip Op. 09-30, dated 04/14/09 available at http://www.cit.uscourts.gov/slip_op/Slip_op09/09-30.pdf.)
ITA Choice of "Date of Sale" Upheld by Court
In the second remand determination of the final results of the AD administrative review of hot-rolled carbon steel flat products from Thailand for the period of November 1, 2004 through October 31, 2005, respondent Nakornthai Strip Mill Public Co., Ltd. (now known as G J Steel Public Co. Ltd.) challenged ITA's choice of the invoice date, rather than the contract date, as the date when terms and quantities were set, but the CIT approved ITA's method. (Nakornthai Strip Mill Public Co., Ltd. v. U.S. et al., CIT Slip Op 09-27m dated 04/07/09 available at http://www.cit.uscourts.gov/slip_op/Slip_op09/Slip%20Op.%2009-27%20Public.pdf.)
Court Partly Approves ITA Constructed Export Price Methodology
In the administrative review of the AD order on stainless steel butt-weld pipe fittings from Taiwan for the period June 1, 2005 to May 31, 2006, domestic petitioners challenged ITA's constructed export price ("CEP") offset adjustment to normal value and its profit adjustment to same. The court affirmed the CEP offset adjustment but remanded the profit adjustment to ITA to either justify or alter it. (Alloy Piping Products, Inc. et al. v. U.S. et al., CIT Slip OP 09-29, dated 04/14/09 available athttp://www.cit.uscourts.gov/slip_op/Slip_op09/09-29.pdf.)