Short Summaries of May 2009 AD/CV Court Cases

Silicon Metal By-Product Value Upheld By CIT Following AD Review Remand

Globe Metallurgical, Inc. challenged the results of redetermination on remand of an AD new shipper review of silicon metal from China for the period June 1, 2005, through May 31, 2006. On remand, the International Trade Administration (ITA) had recalculated the normal value of silcon metal using a lower value for the offsetting silica fume by-product, and though the plaintiffs sought to make ITA lower the by-product value still further, the court upheld ITA's remand calculations. (Globe Metallurgical, Inc. v. U.S., dated 05/05/09, available at http://www.cit.uscourts.gov/slip_op/Slip_op09/09-37.pdf )

Garlic Values, Wage Rates and More Remanded to ITA in Fresh Garlic AD Case

In the AD administrative review of fresh garlic from China for the period November 1, 2003 through October 31, 2004, respondents Zhengzhou Harmoni Spice Co., Ltd., Jinan Yipin Corporation, Ltd., Jining Trans-High Trading Co., Ltd., Jinxiang Shanyang Freezing Storage Co., Ltd., Linshu Dading Private Agricultural Products Co., Ltd., Shanghai LJ International Trading Co., Ltd., and Sunny Import & Export Co., Ltd. challenged parts of the ITA's calculation of normal value. The court remanded the case to ITA regarding its calculations of: garlic values; wage rates; ocean freight; packing cartons and plastic jars; (Zhengzhou Harmoni Spice Co., Ltd., et al., v. U.S., et al. , dated 05/13/09, available athttp://www.cit.uscourts.gov/slip_op/Slip_op09/Slip%20Op.%2009-39.pdf )

Court Rules Domestic Parties' Additional Suit on Byrd Amendment Duties Moot

Thyssenkrupp Mexinox S.A. de C.V., a Mexican producer of stainless steel sheet and strip, sued for a second time the U.S. government and several domestic steel producers who, as petitioners, had received distributions of AD duties from CBP under the Byrd Amendment. Thyssenkrupp sought to require the U.S. companies to disgorge the duty distributions they had received. The CIT ruled the action moot on the grounds that 1) the plaintiffs' unjust enrichment claim duplicated separate litigation by the same plaintiffs; and 2) a provision in the American Recovery and Reinvestment Act of 2009 disallows the recoupment of duties distributed under the Byrd Amendment. (Thyssenkrupp Mexinox S.A. de C.V., et al., v. U.S., et al., dated May 13, 2009, available at http://www.cit.uscourts.gov/slip_op/Slip_op09/Slip%20Op.%2009-41.pdf)

CIT Dismisses Most Byrd Amendment Complaints of Domestic Shrimp Group

An alliance of domestic shrimp producers challenged CBP's method of distributing AD duties collected from the AD orders on certain frozen warmwater shrimp from Brazil, China, Ecuador, India, Thailand, and Vietnam during fiscal years 2006, 2007, and 2008, under the Byrd Amendment, arguing that CBP's method resulted in lower distributions to them for various reasons. The CIT granted the defendants' motions to dismiss all counts except for the claim pertaining to CBP's failure to adequately publish its rulings on distributions from the shrimp AD duty orders. (Southern Shrimp Alliance et al., v. U.S. et al., dated 05/15/09, available at http://www.cit.uscourts.gov/slip_op/Slip_op09/Slip%20Op.%2009-44.pdf )

Court Upholds ITA in Warmwater Shrimp From Thailand Review

An association of domestic producers and processors of warmwater shrimp, and an exporter, challenged certain decisions made by ITA in the AD administrative review of certain frozen warmwater shrimp from Thailand for the period August 4, 2004 to January 31, 2006, seeking to make the ITA calculate higher dumping margins by adjusting its calculations and methodology in 4 different ways. A respondent, Thai -Mei Frozen Foods Co. Ltd. also contested 4 other aspects of ITA's calculations. However, the court upheld ITA's approach. (AD Hoc Shrimp Trade Action Committee v. U.S. et. al., decided May 13, 2009, available at http://www.cit.uscourts.gov/slip_op/Slip_op09/09-42%20%5BPub%5D.pdf )

CAFC Upholds CIT Re No AD Injury for Ferrosilicon from Six Countries

The CAFC affirmed without discussion the CIT's concurrence with the International Trade Commission's fourth remand AD no-injury determination regarding ferrosilicon from Brazil, China, Kazakhstan, Russia, Ukraine, and Venezuela, i.e., that the U.S. ferrosilicon industry was neither injured nor threatened with material injury by reason of imports of subject merchandise from foreign companies. (CAFC decision affirming CIT, dated 05/11/09, available at http://www.cafc.uscourts.gov/opinions/09-1007.pdf ; CIT decision, Elkem Metals, Co., et al. v. U.S. et al., Slip Op. 08-92, dated 09/05/08, available at http://www.cit.uscourts.gov/slip_op/Slip_op08/08-92.pdf )

Court Upholds ITA's use of Data in Brake Rotors from China AD Review

Plaintiffs, respondents in the ITA's 2005-2006 antidumping duty administrative review of brake rotors from China, challenged the ITA's use of certain published Indian import values for valuing pig iron in its redetermination upon remand, arguing that the commodity ITA used as a reference was not specific to the material used in making subject merchandise. However, the court upheld all of ITA's methodology. (Longkou Haimeng Machinery Co., Ltd., et al., v. U.S. et al., dated 05/18/09, available at http://www.cit.uscourts.gov/slip_op/Slip_op09/09-46.pdf )

CIT Declines to Rule on ITA's Limited Use of Offsetting in Dumping Margins

Domestic steel producers challenged the ITA's use of a revised method of calculating dumping margins in investigations (as opposed to reviews), in which it uses average prices rather than specific transaction prices, to calculate dumping margins. In the revised method, ITA offsets positive dumping margins with negative ones. However, the court ruled that since the suit amounts to a challenge of the legality of the ITA's December 27, 2006 determination to end the use of zeroing in AD investigations, adequate relief would be available to the plaintiffs under 28 U.S.C. 1581(c), and therefore the CIT would not rule on the matter in this particular suit. (United States Steel Corporation and ArcelorMittal USA, Inc. v. U.S. et al., dated May 18, 2009, available at http://www.cit.uscourts.gov/slip_op/Slip_op09/09-45.pdf ) (See ITT's Online Archives or 01/08/07 news 07010825 for BP summary of the ITA determination to end use of zeroing in certain investigations.)

CIT Confirms Whirlpool Has Standing in Challenge of Steel AD Review Results

Union Steel challenged several aspects of the ITA's calculations in the administrative review of certain corrosion-resistant carbon steel flat products from Korea for the period August 1, 2006 through July 31, 2007. Whirlpool Corp. sought to appear as a plaintiff-intervenor, but the government claimed the firm lacked standing as an interested party. The court ruled Whirlpool has standing, because it found that Whirlpool's submissions to the ITA, though few in number, were of a substantive nature. The court also granted Whirlpool's request for a preliminary injunction against the liquidation of its entries of subject merchandise. (Union Steel and Whirlpool Corp. v. U.S. et al., dated 05/19/09 available at http://www.cit.uscourts.gov/slip_op/Slip_op09/09-47.pdf )

CIT Dismisses Softwood Lumber Claim by U.S. Producers Challenging SLA

Domestic producers of softwood lumber products challenged a provision of the Softwood Lumber Agreement that provides for the government of Canada to distribute $500 million solely to domestic producers who are members of one group - the Coalition for Fair Lumber Imports. The government sought to have the suit dismissed for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. The CIT granted the government's motion and dismissed the case. (Almond Bros. Lumber Co. et al., v. U.S. et al., dated 05/20/09, available at http://www.cit.uscourts.gov/slip_op/Slip_op09/09-48.pdf

Court Upholds Turkish Rebar Remand Results

Members of the domestic and foreign industries had previously each contested aspects of the AD administrative review of certain steel concrete reinforcing bars from Turkey for the period April 1, 2005, through March 31, 2006. In its redetermination on remand, which the domestic parties challenged, the ITA had recalculated depreciation expense per the court's instruction, while noting dissatisfaction with the approach thus mandated, as not accounting fully for costs. However, the court upheld the remand redeterminations and dismissed both the domestic parties' challenge and the ITA's dispute of the proper accounting method to use. (Nucor Corp. et al. v. U.S. et al., dated 05/22/09, available at http://www.cit.uscourts.gov/slip_op/Slip_op09/09-50.pdf ) (See ITT's Online Archives or 05/22/09 news 09052250 for BP summary of the CIT's remand decision)