AD/CV Decisions at the CIT in the Third Quarter of 2009 (Part I)
The following were among determinations of the Court of International Trade in cases involving antidumping or countervailing duty law in the period July 1-September 30, 2009. (See future issues of ITT for BP summaries of additional CIT decisions in the third quarter.)
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Court Rules 223.01% AD Rate Overly Punitive in Case of Undeclared U.S. Crawfish Sales
Washington International Insurance Company, the surety provider on imports from AD respondent Zuzhou Jinjiang Foodstuffs Co., Ltd, appealed the ITA's determination to apply a total adverse inference, for an AD duty rate of 223.01%, which the agency did after discovering that Zuzhou appeared to have not reported all its U.S. sales in the September 1, 2005 through August 31, 2006 AD administrative review of freshwater crawfish tail meat from China. The court concluded that the 223.01% rate, derived from 8-year old data of other importers, was not a reasonably accurate estimate of the importer's margin. The court directed the ITA to calculate an adverse rate that more closely reflects Zuzhou's market practices.1
Court Remands Final Results of Review of Chlorinated Isocyanurates from China
The CIT upheld the ITA's choices of certain published surrogate values for urea, salt, and steam coal in the first AD administrative review of chlorinated isocyanurates from China (for the period December 16, 2004 through May 31, 2006), but remanded the final results to the ITA to recalculate by-product offsets to normal value. The court ruled it unreasonable for ITA to refuse to accept the respondent's claimed offsets for by-product sales when it had accepted them in the investigation and the preliminary results.2
Court Upholds ITA's Use of Margin Offsetting in LTFV Investigations
U.S. Steel and five other domestic steel producers challenged the ITA's determination under Section 123 of the Uruguay Round Agreements Act to apply a new "offsetting" approach to calculate weighted average dumping margins in investigations involving comparisons of "average-to-average" prices. The CIT determined that the statutes are ambiguous but that the ITA's altered approach, which it adopted to meet WTO obligations, is a reasonable interpretation of the law.
(Offsetting results in lower AD margins and duties, because it is based on the aggregate of all positive and negative dumping margins, whereas in zeroing, negative margins, which would reduce the dumping margin, are excluded from the calculation.)3
Court Dismisses Italian Steel Bar Importer's Challenge of Liquidation
In the January 23, 2002 final results of its investigation of stainless steel bar from Italy, the ITA assigned Italian steelmaker Acciaierie Valbruna S.p.A /Valburna Stainless, Inc. an AD duty rate of 2.5%. The ITA then recalculated this margin to be zero, and the ITA revoked the order for Italian stainless bar, effective April 23, 2007. However, for the period March 2, 2006 through February 28, 2007, the ITA issued liquidation instructions for Valbruna's entries at the 2.5% cash deposit rate in effect at the time of entry. Valbruna sued Customs & Border Protection and the ITA but the actions, reasoning that it did not have jurisdiction over the claims presented.4
Court Remands Part of ITA Findings in Chinese Garlic
The CIT ruled that the ITA's calculations of the value of garlic seed, water, and packing cartons were not based on adequate reasoning or record evidence in the agency's prior redetermination on remand of the final results of review for the period November 1, 2001, through October 31, 2002, and therefore did not comply in all respects with the court's remand. However, the court upheld the ITA's other remand redeterminations.5
1Washington International Insurance Company v. U.S., dated July 29, 2009, available at http://www.cit.uscourts.gov/slip_op/Slip_op09/09-78%20(PUBLIC).pdf
2Arch Chemicals, Inc. and Hebei Jiheng Chemicals Co., Ltd. V. U.S. et al, dated July 13, 2009, available at http://www.cit.uscourts.gov/slip_op/Slip_op09/09-71.pdf
3United States Steel Corporation et al v. U.S. et al, dated July 20, 2009, available at http://www.cit.uscourts.gov/slip_op/Slip_op09/09-74.pdf
4Acciaierie Valbruna S.p.A and Valbruna Stainless, Inc. v. U.S. available at http://www.cit.uscourts.gov/slip_op/Slip_op09/09-77.pdf
5Jinan Yipin Corporation et al v. U.S. et al, dated July 2, 2009, available at http://www.cit.uscourts.gov/slip_op/Slip_op09/09-70.pdf