CAFC Overturns Dismissal of China Nails AD Case on Partial Revocation Effective Date
The U.S. Court of Appeals for the Federal Circuit reversed on Aug. 19 the Court of International Trade’s dismissal of an antidumping duty lawsuit on steel nails from China. The lower court had declined to rule on Itochu Building Products’ challenge to the revocation date for four types of nails, citing a failure to fully argue its case before Commerce. Itochu had only argued for an earlier revocation date before the preliminary results of the changed circumstances review, and not in the run-up to the final results, so it didn’t exhaust its administrative remedies, CIT had said (see 12092127). But the appeals court reversed on Aug. 19, because submitting comments after Commerce had already rejected Itochu’s arguments at the preliminary stage would have served no purpose, and actually would have harmed the company.
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Domestic company Mid Continent Nail and trading company Itochu had in 2011 asked Commerce to end the China steel nails order’s AD duty coverage of four types of nails. Both asked for partial revocation effective on Jan. 23, 2008, the date the order came into effect. But Commerce instead revoked the order for the four types of nails effective Aug. 1, 2009, the day after the end of the first administrative review period. The agency cited its practice of not revoking orders for entries subject to a completed administrative review, which stemmed from its interpretation of the underlying law. Commerce had completed its 2008-09 review on steel nails from China less than one month before the revocation review's preliminary results.
In September 2012, The Court of International Trade dismissed Itochu’s challenge of the later effective date for failure to exhaust administrative remedies. Although it extensively argued for the 2008 revocation date during the changed circumstances review’s preliminary stage, it submitted no comments between the preliminary and final results, despite Commerce’s request.
On Aug. 19, CAFC reversed the dismissal because any further argument by Itochu would have been futile. Commerce cited to its interpretation of the law, holding it didn’t have discretion to use the earlier effective date. That wouldn’t have changed in the final results even if Itochu would have submitted comments, the appeals court said. And Itochu held back on filing comments with reason -- in the preliminary results, Commerce had said it would finalize the revocation after 270 days if comments were filed, but 45 days if they weren’t. If the company would have submitted comments, it would have had to continue paying cash deposits on entries of the four types of nails, without the possible benefit of Commerce changing its opinion, CAFC said.
(Itochu Building Products v. U.S., CAFC No. 2013-1044, dated 08/19/13, Judges Taranto, Lourie and Bryson)
(Attorneys: Ned Marshak of Grunfeld Desiderio for plaintiff-appellant Itochu Building Products; Ryan Majerus for defendant U.S. government)