CIT Says Commerce Can't Expand AD Duties to Third Countries Unless Circumvention Found
The Commerce Department can’t expand the scope of antidumping or countervailing duty orders to include third-country merchandise unless it conducts an anticircumvention inquiry, said the Court of International Trade on June 10 as it ordered the agency to reconsider the 2008-09 antidumping duty administrative review on tapered roller bearings from China. Commerce had found roller bearings that had been finished in Thailand to be subject to duties on Chinese product, after concluding that under the “totality of the circumstances” they hadn’t much changed from their Chinese-made inputs. But Commerce ignored the established procedure for making third-country merchandise subject to AD duties, possibly because an anticircumvention inquiry would have yielded a different result, said CIT.
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The Thai bearings had been made by a PBCD affiliate in Thailand from inputs sourced from PBCD in China. The operations performed in Thailand included grinding and honing of unfinished Chinese-origin cups and cones, and assembly operations using the finished cups and cones and Chinese-origin cages and rollers. In the administrative review, Commerce had said that the roller bearings didn’t undergo a substantial transformation in Thailand, and so were still Chinese-origin roller bearings subject to AD duties.
But the court said the scope of the order is clear in only imposing duties on roller bearings from China. Commerce is free to interpret the scope, but not modify it, said CIT. And a procedure already exists for finding the Thai bearings are from China, in the form of an anticircumvention inquiry.
By authorizing anticircumvention inquiries, Congress made it clear where and under what criteria it wanted analysis of third-country merchandise to take place. In this case, Commerce didn’t follow Congress’ AD duty scheme. CIT noted that there may have been a reason for that: given the grinding and honing that took place in Thailand, Commerce would have found it difficult to say the Thai operations were “minor or insignificant.” It also would have been difficult to meet the requirement that the inquiry was necessary to prevent evasion, given that Commerce said the opposite during the review, CIT said.
(Peer Bearing Company v. U.S., Slip Op. 14-62, 11-00022, dated 06/10/14, Judge Stanceu)