The Court of International Trade upheld a Department of Commerce dumping penalty using the zeroing method. This despite the ruling by the WTO that the use of zeroing was contrary to our international treaty obligations and the February 2007 statement by the U.S. Mission to the WTO declaring that the U.S. intended to meet its treaty obligations.
The Court was bound by the ruling of the Federal Court of Appeals finding that zeroing was a permissive interpretation of the Federal Anti-Dumping statute. Absence of any change in statute they could not over rule the higher court.
Would an appeal finally kill zeroing in the US? Maybe its time to break out the Charming Betsy Doctrine.
The court Also ruled 15 day was to short of a time period to liquidate anti-dumping entries after issuing Final result.
Tuesday, April 28, 2009
Friday, April 3, 2009
Bags on the Net: Final Scope Rulings Need to be Challenged Withing 30 Days
CIT Slip Op 09-24.
The court denied jurisdiction of a challenge to a scope ruling that was 75 days after the mailing because a challenge must be filed within 30 days of the mailing of the Final Ruling.
The "scope" of an anti-dumping is an extremely important part an anti-dumping case. Once and anti-dumping case is created the scope can not be altered because two agencies of government make independent decisions on a limited range of products. Once the range of products is decided it can not be increased later to include more products nor can it be lessen later to exclude products. To do so would mean one agency would be in effect illegally overruling the other agency. Although at the conclusion of the order the petitioner, or parties seeking the extra duties, may request that certain products covered by ruling removed because they are no longer injuring their industry.
In this case Bags on the Net requested the agency to rule on whether their products of "holiday inn" bags were covered in the scope of the anti-dumping investigation. There is some question about which attorney was supposed to get the Final Ruling Notice. But it was mailed out on July 15th and the challenge to the ruling was not filed until September.
According to the regulations a importer has only 30 days after the mailing of a Final Ruling to appeal to the Court of International Trade. It is hard to tell if the attorney received the Final Ruling in time or if one attorney who received the Final ruling did not promptly communicate it to the client. It is also impossible to know whether a timely appeal made to the Court of International Trade would have resulted in a ruling favor of Bags on the Net.
However, it is a reminder that even in today's fast paced world 30 days after mailing is not that much time to decide whether to appeal a scope ruling or not. Especially when such decision is likely to be made by already very busy business professionals. Perhaps the legal cost, likelihood of victory, and other considerations should be discussed well before the time a Final ruling is mailed.
The court denied jurisdiction of a challenge to a scope ruling that was 75 days after the mailing because a challenge must be filed within 30 days of the mailing of the Final Ruling.
The "scope" of an anti-dumping is an extremely important part an anti-dumping case. Once and anti-dumping case is created the scope can not be altered because two agencies of government make independent decisions on a limited range of products. Once the range of products is decided it can not be increased later to include more products nor can it be lessen later to exclude products. To do so would mean one agency would be in effect illegally overruling the other agency. Although at the conclusion of the order the petitioner, or parties seeking the extra duties, may request that certain products covered by ruling removed because they are no longer injuring their industry.
In this case Bags on the Net requested the agency to rule on whether their products of "holiday inn" bags were covered in the scope of the anti-dumping investigation. There is some question about which attorney was supposed to get the Final Ruling Notice. But it was mailed out on July 15th and the challenge to the ruling was not filed until September.
According to the regulations a importer has only 30 days after the mailing of a Final Ruling to appeal to the Court of International Trade. It is hard to tell if the attorney received the Final Ruling in time or if one attorney who received the Final ruling did not promptly communicate it to the client. It is also impossible to know whether a timely appeal made to the Court of International Trade would have resulted in a ruling favor of Bags on the Net.
However, it is a reminder that even in today's fast paced world 30 days after mailing is not that much time to decide whether to appeal a scope ruling or not. Especially when such decision is likely to be made by already very busy business professionals. Perhaps the legal cost, likelihood of victory, and other considerations should be discussed well before the time a Final ruling is mailed.
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