CIT Dismisses Challenge of ITA Refusal to Conduct Changed Cir Review for Russia Company
The Court of International Trade dismissed JSC Acron’s challenge of the International Trade Administration’s refusal to conduct an antidumping changed circumstances review of solid fertilizer-grade ammonium nitrate from Russia (A-801-811). Acron requested the review to change its AD rate from the 253.98 percent Russia-wide entity rate, assigned while the ITA still considered Russia to be a non-market economy, to an individual market economy rate. After the ITA refused its request, Acron challenged the determination at CIT under 28 USC 1581(i) residual jurisdiction. But CIT said the ITA’s action couldn’t be challenged under Section 1581(i) because residual jurisdiction only applies when no other remedies are available, and Acron could have instead requested an administrative review.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
Acron refused to participate in the 1999 investigation of ammonium nitrate from Russia, and was assigned to the Russia-wide entity as a result. Following the ITA’s final dumping determination and the International Trade Commission’s affirmative injury determination, the U.S. and Russia entered into a suspension agreement setting a minimum price for the subject merchandise, so the ITA did not issue an AD duty order. The suspension agreement was later revoked, and an AD order was issued effective May 2011.
The ITA subsequently initiated an administrative review following its 2011 AD duty order, with a period of review of May 2, 2011, to March 31, 2012. The ITA later rescinded its administrative review with respect to Acron, because Acron’s only entry after the AD duty order was in April 2012, which was outside of the period of review. In September 2011, Acron requested the changed circumstances review because its rate was determined according to non-market economy methodology, while Russia had been a market economy since 2001.
Acron claimed that CIT had residual jurisdiction under 28 USC 1581(i), because the company was challenging the ITA’s enforcement of trade laws, but no other jurisdiction provision covered refusals to conduct changed circumstances reviews. CIT disagreed because Acron could have made a reviewable sale during the period of review, and obtained a market economy separate rate through an administrative review. Acron argued that such a sale would have been impossible with a 253.98 cash deposit rate, but CIT said Acron provided no evidence to prove its point, and ruled in favor of the government.
(JSC Acron v. United States, Slip Op. 13-12, dated 01/25/13, Judge Stanceu)
(Attorneys: Daniel Cannistra of Crowell & Moring for plaintiff JSC Acron; Michael Panzera for defendant U.S. government; Valerie Slater of Akin Gump for defendant-intervenor Committee for Fair Ammonium Nitrate Trade)