AD/CVD Court Decisions in First Half of March 2010

The following antidumping or countervailing duty law determinations at the Court of International Trade (CIT) and the Court of Appeals for the Federal Circuit (CAFC) were decided in the first half of March 2010.

Importer of Vietnamese Fish Loses Bid to Escape Doubled AD Rate

A U.S. importer of certain frozen fish fillets from Vietnam, claiming it made an entry one day prior to the review period of January 31, 2003 through July 31, 2004, failed to file a timely "reimbursement statement" (certifying it had not been reimbursed for AD duties). But U.S. Customs and Border Protection found the entry occurred during the period and, with no statement on file, assessed a double AD duty of 98.32%. The CIT dismissed the importer's protest of this measure, but allowed its arguments as to the correct entry date and applicable AD rate to proceed. Nereida Trading Co., Inc. v. U.S., dated March 12, 2010, available at: http://www.cit.uscourts.gov/slip_op/Slip_op10/10-27.pdf

Would-be Amicus Curiae in Chinese Lined-Paper Case Denied Status

The CIT denied a request by the Committee to Support U.S. Trade Laws to appear as amicus curiae, in order to allege fraud on the part of a Chinese respondent in the AD administrative review of certain lined paper products from China for the period April 17, 2006 through August 31, 2007. The court ruled that the group's arguments duplicated those already on the record. (See ITT's Online Archives or 03/08/10 news, 10030845, for BP summary of the Court's denial of a motion to supplement the case record on the same issue.) Association of American School Paper Suppliers v. U.S. et al, dated March 3, 2010, available at: http://www.cit.uscourts.gov/slip_op/Slip_op10/10-22.pdf

Appeals Court Stays AD Reliquidation in Wooden Bedroom Furniture from China

After the ITA issued liquidation instructions with an erroneously low rate for certain entries of wooden bedroom furniture from China in the period January 1, 2006 through December 31, 2006, and failed to correct the mistake within 90 days, an importer sued to prevent the ITA from issuing revised instructions with the correct higher rate. The appeals court, in a reversal, instructed the lower court to grant the importer's request to for a preliminary injunction against any revised liquidation instructions, until the legality of the agency's late correction is settled. American Signature, Inc. v. U.S. et al., dated March 10, 2010, available at: http://www.cafc.uscourts.gov/opinions/10-1023.pdf

Appeals Court Agrees "MNC Provision" Does Not Include Non-market Economies

In the AD administrative review of certain frozen warmwater shrimp from Thailand for the period August 4, 2004 through January 31, 2006, a Thai exporter with no viable home market for price comparison purposes had affiliates in China and Vietnam, and its prices were higher in those markets than its normal value, but the ITA, in a policy change, refused to apply the "MNC Provision"¹ because the third-country prices were in non-market economies. The CAFC, with one dissent, upheld this approach. Ad Hoc Shrimp Trade Action Committee v. U.S. et al., dated March 2 2010, available at: http://www.cafc.uscourts.gov/opinions/09-1375.pdf.

ITA to Amend Final Investigation Results in Diamond Sawblades from Korea

The CIT granted leave to the ITA to correct the omission of a constructed export price offset for two Korean respondents in the final results of the investigation of diamond sawblades and parts thereof from Korea, preserved the domestic industry's right to contest the results, and stayed all other issues in four parallel cases, pending the court appeal of the revised injury determination of the International Trade Commission.²(See ITT's Online Archives or 12/09/09 news, 09120955, for BP summary of the Court's orders to the ITA and the ITC to cease delays.)Diamond Sawblades Manufacturers Coalition v. U.S. et al., dated March 11, 2010, available at: http://www.cit.uscourts.gov/slip_op/Slip_op10/10-23.pdf ;

¹The Multinational Corporation Provision or MNC Rule, 19 USC 1677b(d), provides for the use of a respondent's selling prices in third country markets for purposes of establishing normal value in the dumping calculation, when the home market is not viable and the company's prices are higher in its third country markets than the normal value in the exporting country.

²Three parallel decisions of the same date, on actions initiated by Korean respondents, reflect the same court decision: Ehwa Diamond Industrial Co., Ltd. v. U.S. et al. available at: http://www.cit.uscourts.gov/slip_op/Slip_op10/10-24.pdf; Shinhan Diamond Industrial Co., Ltd. v. U.S. et al. available at: http://www.cit.uscourts.gov/slip_op/Slip_op10/10-25.pdf; Hyosung D & P Co., Ltd. v. U.S. et al. available at: http://www.cit.uscourts.gov/slip_op/Slip_op10/10-26.pdf]