In a per curiam opinion, the Federal Circuit recently affirmed the U.S. Court of International Trade’s (CIT) decision and rejected the Chinese plaintiffs’ challenge of the U.S. Department of Commerce’s (Commerce) dumping finding in its original 2000-2001 antidumping investigation on honey from China. See Zhejiang Native Produce & Animal By-Prods. Imp. & Exp. Corp. v. United States, Appeal No. 13-1574, 2014 U.S. App. LEXIS 19902 (Fed. Cir. Oct. 10, 2014) (per curiam).
The Chinese producers and importer claimed that language from a 2005 Federal Circuit ruling that imports covered by a suspension agreement on honey from China could not be used to impute knowledge of dumping to importers in Commerce’s critical circumstances determination in a subsequent antidumping duty investigation. The Chinese plaintiff sought to have the original determination of dumping and subsequent antidumping duty order on honey from China revoked ab initio.
The CIT had ruled against plaintiffs, finding that the 2005 Federal Circuit decision regarding critical circumstances did not address the issue of whether sales subject to a suspension agreement could be used to establish dumping in a subsequent investigation and that, in any event, the plaintiffs had waived the issue by not appealing it to the Federal Circuit at the same time as the critical circumstances challenge.
This a significant victory for the domestic honey industry as it ends a longstanding litigation and leaves intact Commerce’s original dumping determination and resultant dumping order.
On September 16, 2014, the Federal Circuit affirmed the Department of Commerce’s application of total adverse facts available (“AFA”) to Indian bar producer Mukand Ltd. in an antidumping administrative review, which resulted in 21.02 percent dumping margin for Mukand. See Mukand, Ltd. v. United States, Appeal No. 13-1425, 767 F.3d 1300 (Fed. Cir. Sept. 16, 2014). This case is noteworthy because, unlike most total AFA cases, Mukand’s failure in the underlying administrative review was limited to its not reporting unique cost data attributable to producing the various sizes of stainless steel bar. The Federal Circuit agreed with Commerce that total AFA, as opposed to partial AFA, was warranted in this case because the missing cost information was “essential” to Commerce’s antidumping analysis.
Kelley Drye & Warren represented the stainless bar and honey industries in the appeals.