2010 Court of International Trade decisions reviewing dumping or countervailing duty orders on goods from market economy countries.

Author:Burke, Claudia

TABLE OF CONTENTS I. INTRODUCTION II. INJUNCTIONS III. EXHAUSTION IV. MERITS ISSUES A. Selecting Mandatory Respondents B. Zeroing C. Consideration and Rejection of International Agreements D. Reaching Issues not Raised by the Parties E. Consideration of Previous or Subsequent Administrative Reviews F. Judicial Findings of Fact V. REVOCATION VI. CONCLUSION I. INTRODUCTION

Despite being overshadowed by the volume of Court of International Trade decisions reviewing the Department of Commerce's ("Commerce") assessment of duties on goods from non-market economy countries, a good amount of noteworthy case law affecting market economies developed in 2010. Indeed, the two cases from 2010 that will continue to have the most impact on one of the most contentious (and longest litigated) topics in trade law--zeroing--are included in this body of case law. Even apart from zeroing, the Court's 2010 decisions revealed interesting and sometimes conflicting conclusions on a wide range of procedural and substantive issues before the Court.

This article seeks to provide a useful overview of the Court's 2010 decisions, and approaches the decisions thematically and in the order in which the issues would generally appear in litigation, beginning with an analysis of decisions concerning injunctions, proceeding to procedural/jurisdictional issues such as exhaustion, and concluding with an in-depth review of the more significant merits issues addressed by the Court in 2010. (1)


    As they have for the past several years, in 2010 parties continued to challenge the availability and scope of preliminary injunctions. In Union Steel v. United States, (2) the Court for the third time since 2008 allowed a plaintiff-intervenor to obtain a preliminary injunction enjoining the liquidation of its entries. (3) Longstanding Supreme Court precedent requires that a plaintiff-intervenor be admitted to the proceeding as it stands and prohibits a plaintiff from enlarging those issues. (4)

    In Union Steel, the United States contended that the suspension of liquidation for entries not referenced in the plaintiff's complaint constituted an enlargement of the issues raised in the complaint. (5) In other words, the government argued that the complaint contested the treatment of the plaintiff's entries, not the intervenor's entries. As it did in its 2008 decision in NSK Corp. v. United States, (6) and the previous administrative review concerning Union Steel, (7) the Court rejected the United States' contention, distinguishing substantive issues from an injunction; the latter of which, in the Court's view, merely allows a party to preserve the ability to obtain a meaningful remedy. (8) Although at first glance the decision is just a threshold determination regarding what entries will benefit from or be affected by the Court's decision, on a closer look the decision joins a growing discussion about the scope and intention of injunctions obtained under 19 U.S.C. [section] 1516a.

    For example, in 2010, the Court noted the tension between the Supreme Court's 2008 decision in Munaf v. Green (9) and the purpose and role of injunctions under section 1516a. In Ad-Hoc Shrimp Trade Action Commission v. United States, (10) the Court restated the Court of Appeals for the Federal Circuit's 2009 discussion in Qingdao Taifa Group Co. v. United States (11) that it "takes very seriously the Supreme Court's recent emphasis on the importance of the likelihood of success in the preliminary injunction calculus. But the court also recognizes that 19 U.S.C. [section] 1516a(c)(2) envisions the use of preliminary injunctions in the antidumping context to preserve proper legal options...." (12) The Court in Ad-Hoc Shrimp ultimately held that as long as a party's entries could potentially be affected by the resolution of a pending appeal, there were no changed circumstances warranting modification of a preliminary injunction. (13)

    These decisions, as well as the many decisions concerning Commerce's fifteen-day liquidation policy, (14) have put the Court at something of a crossroads where it remains to be seen whether the Court will ultimately determine that injunctions in the dumping context are more like typical injunctions--requiring stringent adherence to the requisite, traditional factors--or are wholly unique to the dumping scheme.


    The statute directs the court to, "where appropriate, require the exhaustion of administrative remedies." (15) Although the requirement is discretionary, (16) the Court has nevertheless held that exhaustion is "generally appropriate in the antidumping context" (17) and is "almost always appropriate in the countervailing duty context," (18) because exhaustion "allows the agency to apply its expertise, rectify administrative mistakes, and compile a record adequate for judicial review advancing the twin purposes of protecting administrative agency authority and promoting judicial efficiency." (19) Where the Court has required exhaustion, it has often faulted the party for not complying with Commerce's regulation that issues be presented in the party's case brief. (20)

    Because the statute requires exhaustion only "where appropriate," in 2010 the Court recognized that "a party's failure to exhaust its administrative remedies should not preclude judicial review of its claims where the benefits of exhaustion are inapplicable or outweighed by other concerns." (21)

    However, the Court took a very different approach in another 2010 case, one that has had ripple effects ever since. As discussed in more detail below, Dongbu Steel v. United States (Dongbu I) (22) involved a challenge to Commerce's application of zeroing in administrative reviews in light of Commerce's change in zeroing policy in investigations using average-to-average comparisons. The respondents in Dongbu I did not challenge, in either their case briefs or reply briefs before Commerce, any aspect of Commerce's application of zeroing in the administrative review at issue because Commerce had not yet issued notice of the change for certain types of investigations. (23) The Court noted that there was "nothing to exhaust" until Commerce issued its final determination, despite the fact that Commerce had already published its intent to cease zeroing in certain investigations. (24) The Court noted that at the time Dongbu was required to file its case briefs before Commerce, "no official determination had been made" and objections to Commerce's zeroing practice were, therefore, "not yet ripe at the time case briefs were due." (25) The Court went on to conclude that, in any event, the issue raised a "pure question of law" (26) and thus should be exempted from the exhaustion requirement. (27) According to the Court, the pure question of law was the proper interpretation of 19 U.S.C. [section] 1677(35). (28) Despite the total absence of Commerce's interpretation on the record, and despite the Federal Circuit's repeated holding that the provision was ambiguous (and therefore subject to the Chevron step two analysis), (29) the Court adjudicated the question as a pure question of law, ultimately sustaining Commerce's use of zeroing. (30)

    As discussed more fully below, the Federal Circuit vacated and remanded for Commerce to explain, in the first instance, why it was reasonable to continue using zeroing in administrative reviews. (31) The Federal Circuit's holding, requiring Commerce to present its interpretation of an ambiguous statute, implicitly rejected the Court's determination that a Chevron step two statutory question can present a pure question of law. (32) This is more consistent with the Court's 9010 invocation of the "pure question of law exception" in ATAR, S.r.l. v. United States, (33) in which the Court applied the exception only because the issue could be resolved on the statutory language alone. (34)

    The Court took a far more typical approach when it came to applying the other, often-cited exception to exhaustion--"futility." (35) Unlike in Dongbu I, in Pakfood Public Co. v. United States (36) and Asahi Seiko Co. v. United States (37) the Court required exhaustion even in the face of parties' futility arguments. Pursuant to regulation, a party must raise issues in its case brief even if Commerce has previously rejected the issue in the same administrative proceeding. (38) In Pakfood, the plaintiff sought to escape administrative exhaustion arguing that it was not required to raise the issue of contractual exchange rates because it would have been futile, given Commerce's rejection of that contention at an earlier stage of the administrative proceeding. (39) The Court rejected plaintiff's argument, insisting that the plaintiff was required to raise in its case briefs "even arguments Commerce ha[d] repeatedly dismissed." (40)

    Along similar lines, Asahi Seiko established that a would-be mandatory respondent could not raise the futility exception when it withdrew its participation in a review, regardless of whether it was likely that Commerce would individually examine the respondent as a voluntary respondent and provide it an individual dumping margin. (41) In Asahi Seiko, after selecting three mandatory respondents for individual review, not including the plaintiff, Commerce indicated that the possibility of selection of voluntary respondents for review, though remote, was not foreclosed. (42) Commerce stated that it may select a voluntary respondent if upon re-examination it determined to do so, or if a mandatory respondent withdrew from the investigation or otherwise failed to cooperate. (43) The Court held that the record "d[id] not support a conclusion that Asahi's seeking voluntary respondent status would have been futile." (44)


    1. Selecting Mandatory Respondents

      The question of how many mandatory respondents Commerce may choose has also been addressed head on, and not simply in the confines of the exhaustion analysis. Section 1677f-1(c)(2)...

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