AD/CV Decisions at the CIT in the Third Quarter of 2009 (Part 3)

CIT Decision Could Make NAFTA Panel Decisions Retroactive

The Canadian Wheat Board, the Canadian Government, and three provincial governments sought to make the ITA liquidate entries of hard red spring wheat following the termination of an AD administrative review. The CIT, after extended rounds of litigation, has handed down a ruling that could, if it withstands appeal, have the effect of making NAFTA panel decisions apply retroactively to unliquidated entries that are the subject of such panels, not just "prospective" entries made after such decisions.¹

Collapsible Luggage Cart May Not Fall in Hand-Truck Scope, CIT Rules

A New York importer of folding carts designed for luggage and sales kits disputed the ITA's determination that the item is covered by the AD duty order on hand trucks from China despite that order's exclusion of most such collapsible carts and the disputed cart's inability to slide under loads with a kick from behind, a key feature cited in the AD duty order. The CIT found the agency's analysis "verged on the disingenuous," and remanded the matter to the ITA.²

Vietnamese Fish AD Review Results Largely Sustained

The CIT sustained for the most part the ITA's methodology in its AD margin determinations for the final results of the AD administrative review of certain frozen fish fillets from Vietnam for the period August 1, 2004 through July 31, 2005, but remanded to the ITA for further consideration its analyses of the surrogate value for fish oil and the freight and label costs of the Vietnamese exporter QVD Food Co. Other issues parties raised, but on which the court affirmed the ITA's approach, included the bonafide nature of certain U.S. sales, the U.S. and home market corporate affiliations of QVD, the surrogate value of whole fish, and the calculation of surrogate financial ratios. ³

Court Upholds ITA's Value for Vietnamese Fish Fillets in New Shipper Review

In the final results of the AD new shipper review of frozen fish fillets from Vietnam for the period August 1, 2006 through January 31, 2007, the ITA valued unprocessed fish waste produced as a by-product (and therefore an offset to normal value which reduces the AD margin) using two price quotes from India supplied by the domestic petitioners rather than the values proffered by Vietnamese exporter Vinh Quang Fisheries Corp., which were for processed fish waste products. The CIT upheld the agency's determination in full.⁴

Utility Group's Repeated Challenges of Uranium Dumping Case Denied

The International Trade Commission determined on August 6, 2006 that termination of the investigation on uranium from Russia would be likely to lead to injury to the U.S. uranium industry, and a group of American utilities sought a review of this decision, as it had also done with respect to an ITA determination that termination of the investigation would likely lead to continued dumping of Russian uranium. The CIT denied the utility group's action for lack of statutory standing, as it did in response to the group's parallel challenge of the dumping likelihood determination. ⁵

Court Remands Model-Match in Korean Flat Steel, but Upholds "Zeroing"

In the ITA's final results of AD administrative review of certain corrosion-resistant carbon steel flat products from Korea for the period August 1, 2005 through July 31, 2006, Union Steel, a Korean producer/exporter, challenged the ITA's comparison of U.S. sales of painted corrosion-resistant products to home market sales that included steel with plastic laminate coatings. The ITA requested a voluntary remand to reconsider that approach, and the court ordered the remand. Union Steel also contested the ITA's use of "zeroing," or disregarding U.S. sales above normal value, in its margin calculation, but the court found the practice, as used in AD administrative reviews, to have been upheld by the Court of Appeal. ⁶

Court Remands ITA's Findings in Vietnamese Shrimp

In the AD administrative review of warmwater shrimp from Vietnam for the period February 1, 2006 through January 31, 2007, domestic producers challenged the use of Bangladesh as the surrogate country despite India's more comparable economic level, and the use of a 2006 aquaculture industry study to set raw shrimp values. The Vietnamese exporters not selected for review challenged the agency's refusal to give them the deminimis rate it calculated for the two selected mandatory respondents, after the preliminary results showed zero margins for these two companies. The CIT ordered the ITA to justify or revise its surrogate country choice, and ordered it to either assign the weighted average rate it calculated for the mandatory respondents to the other eligible firms, or more fully justify using other rates. ⁷

Court Orders ITA to Collect AD Duties for Diamond Sawblades from China, Korea

On remand from the CIT following an earlier negative determination, the ITC determined that imports of diamond sawblades from China and Korea threatened the U.S. industry with material injury. However, the ITA refrained from publishing an AD duty order and from imposing cash deposits on such imports, pending an appeal of the CIT's remand. The CIT, with a writ of mandamus, ordered the ITA to proceed with publication of an AD duty order and to require the collection of AD duties on subject merchandise. ⁸

¹Canadian Wheat Board and the Government of Canada v. U.S. and U.S. Department of Commerce, dated September 1, 2009, available at http://www.cit.uscourts.gov/slip_op/Slip_op09/09-92.pdf

²Bond Street, Ltd. v. U.S. et al, dated September 8, 2009, available at http://www.cit.uscourts.gov/slip_op/Slip_op09/Slip%20Op.%209-95.pdf

³Catfish Farmers of America v. U.S., dated September 14, 2009, available at http://www.cit.uscourts.gov/slip_op/Slip_op09/Slip%20Op%2009-96.pdf

⁴Vinh Quang Fisheries Corp. v. U.S., dated September 14, 2009, available at http://www.cit.uscourts.gov/slip_op/Slip_op09/Slip%20Op%2009-97.pdf

⁵Ad hoc Utilities Group v. U.S. et al, dated September 15, 2009, available at http://www.cit.uscourts.gov/slip_op/Slip_op09/Slip%20Op.%2009-98.pdf

⁶Union Steel v. U.S. et al, dated September 28, 2009, available at http://www.cit.uscourts.gov/slip_op/Slip_op09/09-105.pdf

⁷Amanda Foods (Vietnam) Ltd. et al v. U.S., dated September 29, 2009, available at http://www.cit.uscourts.gov/slip_op/Slip_op09/09-106.pdf .

⁸Diamond Sawblades Manufacturers Coalition v. U.S. et al, dated September 30, 2009, available at http://www.cit.uscourts.gov/slip_op/Slip_op09/09-107.pdf