Recent Appeals Court Decisions on AD/CV Issues (July - Sept 2009)
The following decisions in antidumping and countervailing duty cases were decided in the period July through September 2009 at the Court of Appeals for the Federal Circuit. (See future issues of ITT for BP summaries of the Court of International Trade decisions for this third quarter.)
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$36 Million Assessments Affirmed in AD Duty Circumvention Case
The CAFC affirmed the judgment of the CIT imposing penalties of $36,632,838 plus interest on two importers of silicon metal from China, for labeling 96 entries as Korean to circumvent 139.49% AD duties from 1999 through 2001. The assessments upheld by the appeals court are: $12,417,039 plus interest for unpaid AD duties and $23,000,293 in penalties from North Star Metals; $417,844 plus interest for unpaid AD duties and $797,662 in penalties from McGuire Steel.1
CIT, ITA Upheld in Polyester Staple Fiber from China Investigation
Ningbo Dafa Chemical Fiber Co., Ltd., and three importers (Consolidated Fibers, Inc., Fibertex Corporation, and Stein Fibers, Ltd.) appealed the judgment of the CIT affirming the ITA's valuation of polyethylene terephthalate, a component of polyester staple fiber (PSF), in the agency's final determination in the fair value investigation of PSF from China. Ningbo had failed to provide the ITA certain production volume data, so the ITA applied non-adverse facts available instead, resulting in a dumping margin of 4.86%. The CAFC affirmed the CIT's ruling that the ITA's approach was supported by substantial evidence and in accordance with law.2
CAFC Dismisses Chinese Honey Importer's Appeal as Premature
The CAFC dismissed an appeal from a consortium of producers, importers and distributors of honey from China, who sought to vacate a CIT judgment on the ITA's finding of critical circumstances in honey imports into the U.S. The appeals court ruled that while the action before the CIT has not yet been concluded, there is no final judgment to review and the CAFC has no jurisdiction to hear the appeal. 3
Courts Uphold ITA's Adverse Facts Rate for Italian Pasta
The CAFC agreed with the CIT's affirmation of the ITA's imposition of a 45.49% adverse facts available margin on an Italian pasta producer/importer, PAM, S.p.A for the period July 1, 2001 through June 30, 2002. The high rates resulted from PAM's failure to report its home market sales in full to the ITA. The CIT had previously remanded the rate finding to the ITA, ordering the agency to corroborate it as required by statute. The CIT subsequently accepted the ITA's remand calculations, which cited instances of comparable margins in the respondent company's sales in an earlier review period.4
Preliminary Injunction Stands in Chinese Hand Trucks Liquidation
The CAFC affirmed the CIT's grant of a preliminary injunction enjoining liquidation of entries of hand trucks manufactured by Qingdao Taifa Group Co., Ltd., and imported into the U.S. in the period December 2005 through November 2006. Upon reviewing and attempting to verify Taifa's AD questionnaire response for that period, the ITA detected concealment, destruction, and tampering with documents pertaining to the AD review, and assigned the company an adverse facts available rate. While Taifa contests this finding, it is reasonable to permit a delay in the liquidation of the entries at issue, the CIT and the appeals court found. 5
1United States v. Martha Matthew et al. (dated July 22, 2009) available at http://www.cafc.uscourts.gov/opinions/09-1106.pdf. CIT slip op. 07-188 (dated 12/28/07) available at http://www.cit.uscourts.gov/slip_op/Slip_op07/07-188.pdf.
2Ningbo Dafa Chemical Fiber Co., Ltd. v. U.S. et al. (dated June 25, 2009) available at http://www.cafc.uscourts.gov/opinions/09-1056.pdf. ITA's final determination in the investigation of PSF from China (dated April 19, 2007) available at: http://ia.ita.doc.gov/frn/2007/0704frn/E7-7386.txt.
3Zhejiang Native Produce and Animal By-Products Import & Export Group Corp. et. al. v. U.S. (dated July 13, 2009) available at http://www.cafc.uscourts.gov/opinions/08-1106.pdf .
4PAM, S.p.A., and JCM, Ltd., v. U.S. (dated September 24, 2009) available at http://www.cafc.uscourts.gov/opinions/09-1066.pdf.
5Qingdao Taifa Group Co., Ltd. V. U.S. (dated September 28, 2009) available at http://www.cafc.uscourts.gov/opinions/09-1103.pdf.