28 U.S.C. (Section) 1581(c): Judicial Review of Antidumping and Countervailing Duty Determinations Issued by the Department of Commerce

Article excerpt

INTRODUCTION
I. ZEROING AND GRANTING OFFSETS FOR NON-DUMPED
   COMPARISONS
II. ADVERSE FACTS AVAILABLE
III. RESPONDENT SELECTION
IV. DATE OF SALE
V. MODEL-MATCH METHODOLOGY
VI. CONSTRUCTED EXPORT PRICE (CEP) OFFSET AND CEP PROFIT
VII. SELLING, GENERAL & ADMINISTRATIVE (SG&A) EXPENSES
VIII. SELECTION OF SURROGATE COMPANIES FOR SG&A RATIOS
IX. POR AVERAGE COSTS
X. FOREIGN EXCHANGE GAINS AND INTEREST INCOME
XI. DUTY DRAWBACK
XII. PROCEDURAL ISSUES
CONCLUSION

INTRODUCTION

In 2009, the United States Court of International Trade ("CIT") issued 152 slip opinions, many of which involved the court's jurisdictional grant under 28 U.S.C. [section] 1581 (c). Title 28 of the United States Code [section] 1581(c) vests the court with jurisdiction to review civil actions arising pursuant to section 516A of the Tariff Act of 1930, i.e., actions challenging determinations made by the U.S. Department of Commerce ("Commerce") administering the unfair trade laws. Individually, each of the 152 cases is important to its litigants, but for purposes of this article the authors have addressed those antidumping cases that may or should be significant to the trade bar, generally.

The article is structured so that it addresses substantive antidumping issues first before surveying calculation and procedural issues. We begin with a brief discussion of zeroing, an issue that has been addressed in prior years by both the CIT and the U.S. Court of Appeals for the Federal Circuit ("Federal Circuit"), but notwithstanding the settled law on this issue, in 2009 parties continued to challenge the methodology alleging that it was not permitted by the statute. Ironically, parties also challenged Commerce's decision not to zero in certain investigations on the same basis, i.e., that such action similarly was precluded by the statute. As discussed below, the CIT recognized that Commerce properly had exercised its discretion in both types of cases. Another hotly contested substantive issue in 2009 was Commerce's application of adverse facts available ("AFA") when responding parties failed to cooperate to the best of their ability in the underlying administrative proceeding. AFA certainly is not a new issue before the court, yet its parameters continue to be explored by the court, the agency, and the parties. The court's response to Commerce's selection of mandatory respondents was another important area that the CIT addressed in 2009, as was selecting the date of sale and Commerce's model-matching criteria. Finally, we address opinions that examined certain calculation and procedural issues including constructed export price ("CEP") offset, CEP profit, duty drawback, selection of surrogate countries for purposes of Selling, General and Administrative ("SG&A") expense ratios, calculation of the SG&A ratio, the importance of deadlines for submission of information to the agency, and revocation.

I. ZEROING AND GRANTING OFFSETS FOR NON-DUMPED COMPARISONS

Commerce's continued application of its zeroing methodology in administrative reviews and its implementation of an adverse World Trade Organization ("WTO") dispute settlement report which was narrowly crafted to apply only with respect to calculations of average-to-average margins in investigations continued to be hotly contested at the court in 2009. With respect to zeroing in administrative reviews, notwithstanding the Federal Circuit's consistent and repeated affirmance of Commerce's longstanding methodology, i.e., in which Commerce calculates average dumping margins using only positive margins, declining to offset such margins with any so-called "negative margins" for non-dumped sales, the court was still faced with the issue in 2009. As evidenced below, in light of the statements in the courts' opinions, one wonders what advantage parties gained through their continued disregard of appellate precedent and CIT jurisprudence.

In addition to upholding Commerce's zeroing methodology in administrative reviews, the court also decided two cases in which Commerce applied its recently implemented approach to come into compliance with a WTO dispute settlement report and calculate dumping margins in investigations by including so-called "negative dumping margins" in the calculation of the average dumping margin. …