AD/CVD Court Decisions for Dec 1-15, 2009
The decisions of the Court of International Trade (CIT) and the Court of Appeals for the Federal Circuit (CAFC) for December 1-15, 2009 involved antidumping or countervailing duty law are summarized as follows:
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Bond Issuer Fully Liable for AD Duties on Chinese Crawfish as No Protest Filed
The Hartford Insurance Company issued bonds on entries of frozen cooked crawfish tail meat imported from China by Sunline Business Solutions Corp. between July 30, 2003 and August 31, 2003, and the entries were liquidated in 2004 and 2005 at an AD duty rate of 223%, after an administrative review. Sunline did not pay the duties assessed, and Customs' sought payment on the bonds, but Hartford sued, arguing that Customs should have advised it that Sunline was already under investigation for illegal importations, before it issued the bonds. The court dismissed Hartford's action because the insurer failed to file a protest within 90 days of Customs' payment demand. Hartford Fire Insurance Company v. U.S., dated December 16, 2009, available at http://www.cit.uscourts.gov/slip_op/Slip_op09/09-142.pdf
Appeals Court Orders Reliquidation of Indian Mushroom Entries at Lower Rate
Following the ITA's final results of review for mushrooms from India for the period February 1, 2000 through January 31, 2001, producer-exporter Agro Dutch Industries filed suit and obtained an injunction against liquidation, but Customs liquidated Agro Dutch's entries at 27.8 percent on the same day as it was served the injunction. The ITA later lowered Agro Dutch's AD duty rate to 1.54% on remand, and Agro Dutch contested the liquidation at the higher rate. The appeals court ruled that when liquidation violates an injunction, a broad array of remedies is available, and ordered Customs to reliquidate at the lower rate. Agro Dutch Industries Ltd. v. U.S. et al, dated December 15, 2009, available at http://www.cafc.uscourts.gov/opinions/09-1127.pdf
Chinese Steel Supplier Was Government Owned, ITA Finds on Remand
In its final affirmative countervailing duty determination for circular welded carbon quality steel line pipe from China, which covered the period January 1, 2007 through December 31, 2007, the ITA found that all the suppliers were government-owned with the exception of one hot-rolled steel supplier to the Huludao Companies. After domestic producers sued over the question of the single producer's government affiliation, the agency reversed its earlier finding and determined that the previously excluded supplier should be included in the subsidy calculations, and the CIT upheld that redetermination. United States Steel Corp. v. U.S., dated December 11, 2009, available at http://www.cit.uscourts.gov/slip_op/Slip_op09/09-137.pdf
ITA's Expense Ratio Adjustments in Indian Lined Paper Upheld by Court
On November 17, 2008 the CIT issued remand instructions pertaining to the ITA's non-standard calculation of a general and administrative expense ratio for Kejriwal Paper Ltd., in the investigation of certain lined paper products from India for the period July 1 2004 through June 30, 2005. Both the domestic producers' association and the Indian exporter faulted the ITA's adjustments to the manufacturer's financial statements in the remand results, but the CIT ruled that the ITA's approach was a reasoned analysis supported by substantial evidence. Association of American School Paper Suppliers v. U.S. and Kejriwal Paper Ltd., dated December 10, 2009, available at http://www.cit.uscourts.gov/slip_op/Slip_op09/09-136.pdf
CIT Denies Attorneys' Fee Reimbursement for Japanese Ball Bearing Producer
After the CAFC ordered Customs to refund Shinyei Corporation of America $2,018,467.39 plus interest for incorrectly assessed AD duties caused by the ITA's having failed to publish complete final results or instruct Customs as to the correct rates, Shinyei sought a reimbursement for the fees and costs it incurred in over ten years of litigation. The CIT ruled out such a payment, finding that the government's behavior as a whole was substantially justified in the context of the then "unsettled legal landscape" in regards to whether duties deemed liquidated could be contested. Shinyei Corporation of America v. U.S., dated December 2, 2009, available at http://www.cit.uscourts.gov/slip_op/Slip_op09/09-135.pdf