AD/CV Decisions at the CIT in November 2009

Court Faults ITA's Selection of Only Two Respondents in Indian Stainless Bar

In the administrative review of the AD duty order on imports of stainless steel bar from India for the period February 1, 2005, through January 31, 2006, the ITA selected only two out of a total of eight respondents for individual examination, and the domestic petitioners challenged this narrow sampling. The CIT reminded the ITA that limiting the number of individually examined respondents is intended by Congress to be the exceptional circumstance, not the norm. Ruling that the limited respondent selection was contrary to law, the court remanded the review to the ITA to make a new respondent selection. Carpenter Technology Corporation, et al v U.S, dated November 23, 2009, available at http://www.cit.uscourts.gov/slip_op/Slip_op09/09.134.pdf

Court Will Hear Challenge to ITA Respondent Selection Even After Liquidation

Asahi Seiko Co. challenged the ITA's s decision not to select it for an individually calculated margin in the administrative review of the AD duty order on ball bearings from France, Germany, Italy, Japan, and the U.K. for the period May 1, 2006, through April 30, 2007, arguing that the ITA's sampling approach cost Asahi its only chance to earn revocation of its AD duty order. The ITA claimed that the case was moot since the entries for the period were liquidated, but the CIT agreed to try the issue provided Asahi establishes that it had exhausted all remedies as required. Asahi Seiko Co., Ltd. v. U.S. and the Timken Company. dated November 16, 2009, available at http://www.cit.uscourts.gov/slip_op/Slip_op09/09-131.pdf

CIT Rules Out Byrd Amendment Disbursements in Mexican Stainless Steel Case

Mexican stainless steel and strip importer Thyssenkrup Mexinox S.A. requested an injunction to prevent disbursement, under the Continued Dumping and Subsidy Offset Act of 2000 (Byrd Amendment) of their unliquidated entries, citing Canadian Lumber Trade Alliance v. U.S. The CIT demurred from granting a permanent injunction pending proof that further collections or disbursements of AD duties were likely, but with an eye to the company's unliquidated entries, the court decreed that the Byrd Amendment does not apply to stainless steel sheet and strip from Mexico, and that disbursements of AD duties from those products is illegal. Thyssenkfupp Mexinox S.A. v. U.S et al, dated November 16, 2009, available at http://www.cit.uscourts.gov/slip_op/Slip_op09/Slip%20Op%2009-130.pdf

Court Upholds "Offsetting" of Negative Margins in Dumping Investigations.

For the final results of its investigation of light-walled rectangular pipe and tube from South Korea for the period April 1, 2006 through March 31, 2007, the ITA compared average per-model prices and subtracted negative dumping margins (where U.S prices of the import are actually higher than home market prices) from positive dumping margins in calculating margins. Plaintiffs, domestic producers, challenged this approach, which the ITA implemented in December 2007 following a World Trade Organization dispute settlement. The CIT sustained the ITA's final results and its "offsetting" of margins. Searing Industries et al v. U.S., dated November 6, 2009, available at xhttp://www.cit.uscourts.gov/slip_op/Slip_op09/09-129.pdf

CIT Orders ITA to Proceed with Issuance of AD Orders in Diamond Sawblades

The ITA concluded in June of 2006 that diamond sawblades from China and South Korea were being sold at less than fair value, but the International Trade Commission determined that no injury to the U.S. industry resulted, so the ITA did not issue AD orders. Later, on remand from the CIT, the ITC reversed its position, and as a result the CIT ultimately issued mandamus instructions to both agencies to proceed with the AD order. A group of importers sought a stay of the mandamus pending an appeal of the ITC's injury determination, but the CIT ruled that the appeal is unlikely to win, and ordered the ITA and the ITC to effect the mandamus order. Diamond Sawblades Manufacturers Coalition v. U.S. et al, dated November 4, 2009, available at http://www.cit.uscourts.gov/slip_op/Slip_op09/09-128.pdf