AD/CVD Court Decisions in Second Half of June 2010
The Court of International Trade (CIT) and the Court of Appeals for the Federal Circuit (CAFC) made the following antidumping and countervailing duty law determinations in the second half of June 2010.
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CIT Holds ITA may not use AD Margins from Prior Years to Avoid Zero Rates
In the AD administrative review of warmwater shrimp from Vietnam for the period February 1, 2006 through January 31, 2007, the Vietnamese exporters not selected for individual review challenged the agency's refusal to give them the de minimis rate it calculated for the two selected mandatory respondents, and the CIT in 2009 ordered the ITA to either assign the weighted average rate it calculated for the mandatory respondents or justify using other rates. Now the court has rejected as unreasonable the ITA’s renewed attempt to apply rates from prior proceedings to avoid zero or de minimis margins, and in a new remand suggested again that the ITA should use the weighted average dumping margins for the firms reviewed. http://www.cit.uscourts.gov/slip_op/Slip_op10/10-69.pdf
Appeals Court Affirms Mixed Wax Candles are Included in AD Order
The CAFC upheld a finding by the CIT in favor of an ITA determination that mixed-wax candles imported by Target Corporation from China are “later-developed merchandise” that are legitimately included in the AD order on petroleum wax candles from China. The court agreed that mixed wax candles were not commercially available at the time of the original investigation in 1985-1986, and took note of the ITA’s citations of patents and press releases in the 1990’s announcing commercial production and availability of new types of mixed-wax candles. (See ITT’s Online Archives or 07/16/09 news, 09071635 for BP summary of earlier CIT decision). http://www.cafc.uscourts.gov/opinions/09-1518.pdf
Chinese Heavy Forged Hand Tools Importer may not Contest AD Review Results
An importer of axes and adzes produced by two manufacturers that did not participate in the AD administrative review of heavy forged hand tools from China for the period February 1, 2005 through January 31, 2006, may not contest the ITA’s assignment of the China-wide rate1 to entries of merchandise from those firms in that period, the CIT ruled. By not participating in the ITA’s review, the importer failed to satisfy a statutory prerequisite for judicial review and lacked standing to bring a complaint, the court reasoned. http://www.cit.uscourts.gov/slip_op/Slip_op10/10-71.pdf
1 Applying a presumption of state control in non-market economies (NMEs), the ITA has a practice of “conditionally” covering, in an administrative review, an NME-wide entity, even when no review of an NME-wide entity has been requested. After the ITA gives notice of the initiation of an NME administrative review in the Federal Register, if at least one named exporter fails to demonstrate independence from government control, the NME-wide entity, and all exporters who fail to demonstrate their independence, including those who do not request to participate in a review, are also covered by the results of the review.