CIT Rejects Arguments Against AD New Shipper Review Rescission for 'De Minimis' Sale
The Court of International Trade sustained the Commerce Department’s decision to end an antidumping new shipper review for a Chinese company because of a single sale of subject merchandise produced by a manufacturer subject to the original investigation. Pujiang Talent Diamond Tools challenged the agency’s rescission of a new shipper review of diamond sawblades from China (A-570-900), arguing that, despite such a requirement in Commerce’s regulations, rescinding on the basis of a single sale went too far. But the court found that a decision by Commerce to go against its own regulations and not rescind wasn’t a choice the agency could make.
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Although it acknowledged that, under the antidumping regulations, companies that export subject merchandise produced by a company subject to the original investigation are ineligible for new shipper reviews, Pujiang argued that its single sale of diamond sawblades produced by another company was "de minimis," or so small as to be irrelevant. Noting that the requirement “seems to be aimed at preventing a producer that received a high rate during the investigation or a later review from taking advantage of a newly reviewed exporter’s lower rate,” CIT said Commerce was correct in rescinding the new shipper review based on that sale. “The Department is not free to disregard regulatory requirements simply because a non-complying petitioner will suffer adverse consequences as a result of its non-compliance."
The court also found no merit in Pujiang’s argument that Commerce should have disregarded its questionnaire responses that told the agency of its sale of merchandise produced by another company. Pujiang said that information was given in error, and that Pujiang itself produced the goods. Commerce should have instead looked to the CBP Form 7501 associated with the shipment, which identified Pujiang as the manufacturer. The court said Pujiang never raised the issue with Commerce during the review, and it’s not apparent that the 7501 is correct while the questionnaire response is in error. “Errors not brought to the attention of the Department prior to the issuance of a final determination must be corrected by Commerce only where the error is apparent,” CIT said.
(Pujiang Talent Diamond Tools Co., Ltd. v. United States, Slip Op. 13-58, dated 05/03/13, Public Version 05/23/13, Judge Eaton)
(Attorneys: John Houkom of Quintana Law Group for plaintiff Pujiang Talent Diamond Tools Co., Ltd.; Jane Dempsey for defendant U.S. government)