113 F.3d 1220 (Fed. Cir. 1997), 95-1437, D & L Supply Co. v. United States

Docket Nº:95-1437, 95-1450.
Citation:113 F.3d 1220
Party Name:D & L SUPPLY CO., Plaintiff-Appellant, and Guandong Metals & Minerals Import & Export Corporation, and Overseas Trade Corporation, Plaintiffs, and U.V. International, Sigma Corporation, Southern Star, Inc., City Pipe & Foundry, Inc., Long Beach Iron Works, Inc., Plaintiffs-Appellants, v. The UNITED STATES, Defendant-Appellee, and Alhambra Foundry I
Case Date:May 08, 1997
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
FREE EXCERPT

Page 1220

113 F.3d 1220 (Fed. Cir. 1997)

D & L SUPPLY CO., Plaintiff-Appellant,

and

Guandong Metals & Minerals Import & Export Corporation, and

Overseas Trade Corporation, Plaintiffs,

and

U.V. International, Sigma Corporation, Southern Star, Inc.,

City Pipe & Foundry, Inc., Long Beach Iron Works,

Inc., Plaintiffs-Appellants,

v.

The UNITED STATES, Defendant-Appellee,

and

Alhambra Foundry Inc., Allegheny Foundry Co., Bingham &

Taylor Division, Virginia Industries, Inc., Charlotte Pipe &

Foundry Co., East Jordan Iron Works, Inc., Lebaron Foundry

Co., Municipal Castings, Inc., Neenah Foundry Co., Opelika

Foundry Co., Inc., Tyler Pipe Industries, Inc., U.S. Foundry

& Manufacturing Co. And Vulcan Foundry, Inc., Defendants-Appellees.

Nos. 95-1437, 95-1450.

United States Court of Appeals, Federal Circuit

May 8, 1997

Page 1221

Dennis James, Jr., Cameron & Hornbostel, Washington, D.C., argued, for plaintiff-appellant D & L Supply Co. Of counsel was Michele C. Sherman.

Christopher M. Curran, White & Case, Washington, D.C., argued, for plaintiffs-appellants U.V. International, et al. With him on the brief were Walter J. Spak, Vincent Bowen, and of counsel, Stephen N. Schaefer.

Henry R. Felix, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, D.C., argued, for defendant-appellee United States. With him on the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, and Jeanne E. Davidson, Assistant Director. Of counsel on the brief was Jeffrey C. Lowe, Attorney-Advisor, Department of Commerce. Of counsel were Berniece A. Brown, Chief Counsel of Import Administration and Stephen J. Powell, Department of Commerce.

Mary T. Staley, Collier, Shannon, Rill & Scott, Washington, D.C., argued, for defendants-appellees Alhambra Foundry Inc., et al. With her on the brief were Paul C. Rosenthal, and Robin H. Gilbert.

Before NEWMAN, LOURIE, and BRYSON, Circuit Judges.

BRYSON, Circuit Judge.

Before its amendment in 1994, the antidumping statute directed that when a party to an antidumping proceeding failed to provide properly requested information, the Commerce Department was required to "use the best information otherwise available" in determining the appropriate antidumping duty rate. 19 U.S.C. § 1677e(c) (1988). Pursuant to that provision, the Commerce Department developed a protocol that allowed it to use the highest dumping margin established in any prior administrative review or in the less-than-fair-value proceeding as the "best information available" (or "BIA") rate for an administrative review in which the foreign exporter did not comply with Commerce's inquiry. The question presented in this case is whether, when the prior antidumping duty rate that Commerce relied upon to establish the BIA rate has been invalidated in the course of judicial review, Commerce may nonetheless continue to rely on that antidumping duty rate as the BIA rate in any pending administrative review proceeding. We hold that it is improper for Commerce to continue to use, as the BIA rate, an antidumping duty rate that has been vacated as erroneous.

I

Appellant D & L Supply Company, an American company, imported iron castings from the People's Republic of China during the period relevant to this case. Plaintiff Guangdong Metals & Minerals Import & Export Corporation, a Chinese exporter, supplied iron castings to D & L during that period.

On March 19, 1986, the Department of Commerce found that iron castings from China were being sold in the United States at less than fair value. After the International Trade Commission determined that those imports were causing injury to U.S. producers of similar castings, Commerce issued an antidumping order and set an antidumping duty rate of 11.66 percent for the Chinese exporters.

In the course of its annual administrative reviews of the antidumping order, Commerce adjusted the antidumping rates for iron castings several times. For 1987-88 Commerce...

To continue reading

FREE SIGN UP