CIT Refuses to Dismiss AD Duty Challenge From Chinese Nail Exporter Not Notified of Review Request
The Court of International Trade on Dec. 6 refused to dismiss a challenge to high antidumping duty rates imposed on merchandise from a Chinese exporter of steel nails. In the 2010-11 administrative review of steel nails from China, the Commerce Department had assigned Suntec Industries the 118.04% “China-wide” rate, because the company didn’t file paperwork to show it was independent from state control. But Suntec argued it never got the chance because the petitioners that requested the review never served the company with notice. As a result, Suntec said it didn’t learn of the review until days before it was completed in March 2013.
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The domestic petitioners had attempted to notify Suntec by notifying a China-based attorney that had previously represented Suntec and 13 other exporters, but was in fact no longer representing Suntec. But the petitioners, seeking to dismiss the challenge, said their alleged failure to notify Suntec that it had requested review was irrelevant, because Suntec should have seen Commerce’s initiation notice in the Federal Register.
CIT ruled notification of Suntec of the review request was required by regulation, so the review request was deficient. As such, it refused to dismiss Suntec’s challenge. But the court didn’t fully acquiesce to Suntec’s desire that the review be completely nullified. A review request is separate from an initiation, and Commerce did notify Suntec of initiation of the review through its Federal Register notice, said CIT. To void the final results of the review would require that Suntec show Commerce’s decision to initiate the review despite the lack of notification of the review request caused Suntec “substantial prejudice.” The high AD rate alone is not enough to show that, because it results from Suntec’s ignorance of the Federal Register notice initiating the review, and not from the lack of notification from petitioners. Exactly how much the lack of notification in particular prejudiced Suntec remains an open question, said CIT. “The plaintiff will have its day in court for further exploration of the claim as a matter of fact.”
(Suntec Industries Co. v. U.S., Slip Op. 13-147, dated 12/06/13 (posted 12/10/13), Judge Musgrave)