In the May 2007 - April 2008 antidumping duty administrative review of ball bearings and parts thereof from Japan, the International Trade Administration selected only the 4 largest producer/exporters as mandatory respondents and reviewed no others, “due to limited resources.” Asahi Seiko Co., Ltd. challenged the results, arguing that by not being selected for review it was deprived of the chance to possibly earn revocation by demonstrating zero or de minimis margins. However, the court ruled that because it withdrew its request for review when the 4 mandatory respondents were selected (in an attempt to avoid being assigned the “all others” rate), Asahi failed to exhaust its administrative remedies and therefore could not challenge the review results. See ITT’s Online Archives or 11/22/10 news, 10112204, for BP summary of similar court decision on the prior year’s review) (Slip Op. 11-24, dated 03/01/11)

In Chubb Insurance Company of Europe S.A., v. UPS Supply Chain Solutions, Inc.¹, the U.S. Court of Appeals for the Central District of California ruled that “third party” suits seeking indemnification² and contribution (compensation) in connection with international air cargo shipments are rights to recourse and therefore, are not subject to the Montreal Convention's two-year statute of limitations on the right to damages.

Domestic producers U.S. Steel Corporation and Nucor Corporation challenged the International Trade Administration’s methods in the final results of the August 2006 -- July 2007 antidumping duty administrative review of corrosion-resistant carbon steel flat products from Korea. The domestic producers faulted the ITA for failing to adjust Union Steel Manufacturing Co., Ltd. of Korea’s costs to account for steel substrate purchases from affiliated suppliers, and for not collapsing or grouping Pohang Iron & Steel Co., Ltd. and Pohang Coated Steel Co., Ltd. (collectively, POSCO) together with Union as a single entity in the AD calculations. The CIT granted the ITA’s voluntary remand request to review its decision not to include an adjustment for the value of steel substrates supplied by affiliates, and ordered the agency to review its decision not to collapse Union and POSCO and treat them as a single entity. (Slip-Op. 11-19, dated 02/15/11)

A Turkish pasta producer, Marsan Gida Sanayi ve Ticaret A.S., under new ownership, Gidasa Sabanci Gida Sanayi ve Ticaret A.S., sought to preserve the company’s prior countervailing duty rate for its goods from Turkey, but the International Trade Administration, using a new CVD changed circumstances methodology it had previously been considering, found that the successor company was no longer the same subsidized entity and instead should get the “all others” cash deposit rate of 9.38%. (The new approach, among other concerns, seeks evidence of “significant changes in operations, ownership, corporate or legal structure” that could affect the nature and extent of a company’s subsidy levels.) The Court of International Trade found the ITA’s interpretation reasonable and upheld its final determination. (Slip-Op. 11-20, dated 02/16/11)

Union Steel Manufacturing Co, Ltd. of Korea sued over the final results of the August 2006 -- July 2007 AD administrative review of corrosion-resistant carbon steel flat products from Korea. Union challenged the International Trade Administration’s calculation of expense ratios; its model match using comparisons of painted products sold in the U.S. to both painted and laminated product sales in Korea; and its “zeroing” of U.S. sales sold at or above fair value (i.e., excluding non-dumped sales) when calculating the weighted average dumping margin. The Court of International Trade denied Union’s expense ratio and zeroing complaints, but granted the plaintiff’s request that the model-matching be reconsidered (the ITA also requested a voluntary remand on the question). (Slip Op. 11-18, dated 02/15/11)

Following earlier court remands that questioned the International Trade Administration’s application of an adverse, China-wide rate of 139.31% to bars and wedges produced and exported by Tianjin Machinery Import and Export Corp. and Shandong Huarong Machinery Co., Ltd., a rate based on the highest margin calculated for Tianjin in a review five years earlier, the ITA repeatedly defended the high rate as tied to the case facts and warranted by the respondents’ participation in a fraudulent invoicing scheme. The Court of International Trade has now sustained the 139.31% rate for Tianjin. However, for bars and wedges produced and exported by Shandong Huarong, the court ordered the ITA to find a lesser adverse rate tied either to a single calculated rate in the period of review or to what the firm would have received had it cooperated, plus “a built-in increase as a deterrent to non-compliance” in either case.

U.S. importers Calgon Carbon Corporation and Norit Americas, Inc., as well as two Chinese producer exporters, in a consolidated suit, challenged different aspects of the final results of the first antidumping administrative review of certain activated carbon from China, covering the period October 11, 2006 through March 31, 2008. The Court of International Trade ruled that the International Trade Administration was not obligated to use combination rates though it had done so in the preceding investigation, finding that nothing on the record showed that the ITA was presented with a case of circumvention. The court also ruled that zeroing (excluding U.S. sales made at or above fair value from the weighted average margin) was permissible at the time of the review. However, the court remanded for further review the ITA’s denial of a separate rate for Chinese producer Hebei Foreign Trade and Advertising Corporation, various surrogate values for principal manufacturing components, and the labor rate for Chinese manufacturing. (Slip-Op. 11-21, dated 02/17/11)

A remand redetermination of the final results of the March 2006 -- February 2007 AD administrative review of carbon steel pipes from Thailand brought appeals from both the Thai producer and domestic producers, over how and whether the ITA should add duty drawback adjustments (which are granted by the exporting country on re-exported materials), to normal value and to the cost-of-production calculations that serve to eliminate below-cost sales from margin calculations. The Court of Appeals for the Federal Circuit ruled that the ITA did not err in granting a duty drawback adjustment, increasing export prices, and increasing the cost of production by the amount of the exempted duties. (See ITT’s Online Archives or 11/24/09 news, 09112440, for BP summary of earlier CIT decision) (Appeal Number 2010-1220, dated 02/14/11.)

Chinese exporters and domestic producers both challenged the final results of the January-December 2007 AD administrative review of wooden bedroom furniture from China, questioning the ITA’s respondent selections, fair value calculations, and adverse rate assignments, among other issues. The Court of International Trade remanded the case to the ITA to 1) consider assigning a separately calculated adverse rate to Orient International Holding Shanghai, rather than the 216.01% country-wide rate, since that rate “greatly exceeds“ the highest individually assigned rate of 29.89% (Orient had duly completed its separate rate questionnaire but later withdrew its cooperation from the review); 2) reconsider the choice of the best set of published prices for wood components; 3) adjust the value for labor per the ITA’s recent redetermination in a prior review under the same order; 4) etc. (See ITT’s Online Archives or 02/11/11 news, 11021111, for BP summary of most recent CIT decision on ITA’s revised approach to NME labor values) (Slip-Op.11-16, decided 02/11/11).

In the May 2007 -- April 2008 AD administrative review of pure magnesium from China, a Chinese exporter reported values for raw materials and by-products supplied to it by an unaffiliated supplier. When the ITA visited the supplier to verify the amounts following the preliminary results, the supplier was not cooperative and provided documents that appeared doctored. The ITA then assigned the Chinese exporter, Tianjin Magnesium, the adverse facts available rate of 111.73%, but the CIT has now remanded the case to the ITA with instructions to make a new finding as to whether the exporting company itself, rather than its unaffiliated supplier, did or did not cooperate to the best of its ability, reasoning that “[t]he court cannot accept a construction…under which the party who suffers the effect of the adverse inference is not the party who failed to cooperate.” (Slip Op. 11-117, dated 02/11/11.)