AD/CV Decisions at the CIT in October 2009

Customs Broker Surprised by High Assessments has no Recourse, CIT Rules

San Juan, PR, customs broker Grisel Padilla was assessed AD duties of 122.88%, amounting to $92,176.99, for entries of polyethylene retail carrier bags from Thailand, for which the broker had posted cash deposits at the rate of 2.80%. Padilla sued to try to stop Customs and Border Protection from liquidating at the higher rate and to make the ITA impose a "cap" on his assessment at the cash-deposit rate. The CIT ruled that the suit lacked any jurisdictional basis on which to stop Customs from carrying out the ITA's instructions, and that the period during which liquidation rates were capped at cash deposit rates ended the date the ITC published its affirmative injury determination, which was prior to the dates of the entries.¹

ITA's Subsidy Determinations in Indian Poly Film Upheld by CIT

Indian polyethylene film, sheet and strip producer/exporter MTZ Polyfilms contested the ITA's calculation of the benefits and subsidies it receives under Indian Government programs, as reflected in CV Duty administrative review final results for the period January 1, 2005 through December 31, 2005. At issue was the amount of benefits accruing from the Duty Entitlement Passbook Scheme and the Export Promotion Capital Goods Scheme, as well as whether the Advance License Program and the Union Territory Central Sales Tax Exemption constituted subsidies. The court upheld the ITA's determinations and calculations entirely.²

Duty Drawback Calculations Contested in Thai Steel Pipes Review

Both the domestic and the foreign interested parties contested aspects of the ITA's treatment of duty drawback in the final results of the AD administrative review of circular welded carbon steel pipes and tubes from Thailand for the period March 1, 2006 through February 28, 2007. The domestic parties contended that adding drawback to export prices must be based on proof that import duties were actually paid or incurred, and Saha Thai protested against the ITA's inclusion of "exempted, unpaid" duties in the cost of production and constructed value. The CIT upheld the ITA's overall approach but ordered it to revise its calculations according to Government of Thailand accounting standards and refrain from making its own yield-loss adjustments to the drawback amounts.³

Challenge to Diamond Sawblades Timkin Notice Premature, CIT Rules

Following the court's January 13, 2009 upholding of the determination by the International Trade Commission, on remand, that the U.S. diamond sawblade industry was threatened with injury because of imports from China and Korea, the ITA issued a "Timken" notice to the effect that court decisions had changed the effect of the ITC's original determination, and that, absent a successful appeal, it would proceed to publish an AD order. A coalition including Chinese producer/exporters sued to challenge the ITA's dumping determination, but the court agreed with the ITA that the action is premature and must await the issuance of the actual order.⁴

ITA Gets 2nd Remand in Stainless Butt-weld Pipe Fittings From Taiwan

For the 13th AD administrative review of stainless steel butt-weld pipe fittings for Taiwan, covering the period June 1, 2005 through May 31, 2006, the CIT issued remand instructions to the ITA to justify or alter its profit adjustment to the constructed export prices of Ta Chen Stainless Pipe Co., Ltd. The ITA again failed to explain how its standard methodology accounts for thedisputed inventory carrying costs and credit costs, the CIT held, ordering ITA once more to better explain or revise its approach.⁵

Tissue Paper in Gift Bag Sets is Within Scope of Chinese Tissue AD Order

Walgreen's challenged a September 19, 2008 amended final scope ruling from the ITA holding that tissue paper included in gift bag sets falls within the AD duty order on certain tissue paper products from China. Walgreen's argued that the paper is a minor component of its gift sets, and cited instances in which pencils in art and compass kits were excluded from the Chinese pencils AD order. But the CIT reasoned that the only issue to resolve was whether the ITA's determination to include the item in the AD duty order was supported by substantial evidence in the record, and upheld the agency's decision.⁶

6-Month AD Liquidation Time Limit Starts from Final Results of Review, CIT Rules

Following the AD administrative review of ball bearings, cylindrical roller bearings, and spherical plain bearings from Japan for the period May 1, 2003 through April 30, 2004, the ITA published Final Results, then Amended Final Results, and finally, a Correction to the Amended Final Results. When CBP liquidated Mazak's review period entries, more than 6 months had passed since the final results. The court ruled that the 6-month statutory time limit for liquidation of entries commences on the publication date of the final results, and not the date of any amended, or corrected amended, final results. Therefore, the court ruled that Mazak's entries were liquidated too late and that Mazak should be assessed only the cash deposit rates in effect at the time of entry.⁷

¹Grisel Padilla D/B/A G. Padilla & Company v. U.S. (dated 10/08/09) available at http://www.cit.uscourts.gov/slip_op/Slip_op09/09-112.pdf

²MTZ Polyfilms, Ltd. v. U.S. (dated 10/15/09) available at http://www.cit.uscourts.gov/slip_op/Slip_op09/Slip%20Op%2009-118.pdf

³Saha Thai Steel Pile (Public) Company Ltd., v. U.S. et al. (dated 10/15/09) available at http://www.cit.uscourts.gov/slip_op/Slip_op09/09-116.pdf

⁴Advanced Technology & Materials Co., Ltd., et al v. U.S. and Diamond Sawblades Manufacturers Coalition (dated 10/15/09) available at http://www.cit.uscourts.gov/slip_op/Slip_op09/09-115.pdf

⁵Alloy Piping Products, In. et al. v. U.S. and Ta Chen Stainless Steel Pipe Co., Ltd. (dated 1000/20/09) available at http://www.cit.uscourts.gov/slip_op/Slip_op09/09-119.pdf

⁶Walgreen Co. of Deerfield, Il., v. U.S. and Seaman Paper Co. of Mass. (dated 10/28/09) available at http://www.cit.uscourts.gov/slip_op/Slip_op09/09-122.pdf

⁷Mazak Corporation v. U.S. (dated 10/29/09) available at http://www.cit.uscourts.gov/slip_op/Slip_op09/09-124.pdf