Last week, GDLSK achieved two very important victories for our clients at the Court of International Trade (CIT), reversing Department of Commerce (Commerce) decisions regarding the assessment of antidumping duties on merchandise imported from China.  Both of these decisions may have a favorable impact for other exporters/ importers of merchandise subject to antidumping duties.

First, in a GDLSK appeal of a Commerce determination in the annual review of Off-the-Road Tires from China, the CIT instructed Commerce to re-consider all three arguments GDLSK presented on behalf of the plaintiff. In Qingdao Qihang Tyre Co. Ltd. v. United States, Slip Op. 18-35 (April 4, 2018).  Most significantly, the CIT held that Commerce’s calculation of a Value Added Tax (VAT) adjustment was contrary to law.  Because the Commerce VAT policy negatively impacts antidumping calculations in all Chinese antidumping proceedings, this decision could result in reducing antidumping liability for all Chinese exporters in all cases.

Second, in a GDLSK appeal of a Commerce determination in the antidumping investigation of Xanthan Gum from China, the CIT expressly directed Commerce to recalculate the plaintiff’s antidumping margin to conform to the CIT’s holding, rather than remanding the issue raised for further analysis (as is normally the case).  In CP Kelco US, Inc. v. United States, Slip Op. 18-36 (April 6, 2018).  The CIT held that Commerce’s prior analysis was not acceptable:

“This leaves the court with the distinct impression that Commerce has created an arsenal of ‘practices’ that allow it to the craft the record to fit a pre-determined outcome. The court will not sanction this.”

The CIT then discussed the reasons why remand for further analysis was not a viable alternative:

“In light of the embarrassingly lengthy history of this case, the court will not provide the Department any further room to maneuver. Unfortunately, the court has no reasonable expectation that Commerce would provide an even-handed analysis of the available data on the record if given the opportunity, again, to exercise its discretion.”

This decision not only results in a reduction of our client’s antidumping liability in this case, but also can be cited as precedent by other parties in the CIT who are faced with prohibitive antidumping assessments resulting from Commerce’s arbitrary actions.  This case is an important reminder that importers should not give up after receipt of an adverse Commerce decision.

If you have questions regarding these cases, please feel free to contact Ned Marshak ([email protected]), Brandon Petelin ([email protected]), Jordan Kahn ([email protected]), or other attorneys at the Firm.