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November 02, 2008 

U.S. Supreme to Hear First Ever Antidumping Cases

On Tuesday, November 4th, the U.S. Supreme Court will hear oral arguments in the first ever antidumping cases granted certiorari by the Supreme Court.

The consolidated cases, United States v. Eurodif S.A., et al. (Docket No. 07-1059) and USEC, Inc., v. Eurodif S.A., Docket No. (Docket No. 07-1078), involve appeals arising from an antidumping petition filed in December 2000 on imports of low enriched uranium from various countries, including France. The U.S. Court of International Trade and the Court of Appeals for the Federal Circuit, overturning a decision made by the Commerce Department, held that the contracts for the enrichment of uranium entered into by U.S. buyers and Eurodif S.A, an enricher in France, were contracts for services, rather than for the sale of goods. As a result, the courts held that the low enriched uranium (LEU) processed under the contracts was not subject to the antidumping law.

The central issues in this case are whether the low enriched uranium produced through "separative work unit" (SWU) enrichment contracts are goods or services and subject to the antidumping duty laws and the extent of deference the courts are to give to the Commerce Department under the test established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) in making such determinations. In other words, the Supreme Court is being asked to decide if the Commerce Department reasonably determined that the enrichment contracts were sales of goods subject to the antidumping law and if the Court of International Trade and Court of Appeals for the Federal Circuit overreached by overturning the Commerce Department’s decision.

These cases are significant in many respects. Not only do they involve issues addressing an important interpretation of U.S. antidumping law, they will have an impact on international trade, energy and national security policy, all of which were prominent issues in the current presidential election campaign. It is therefore fitting that the oral argument in these cases will be held on Election Day.

From an antidumping law perspective these cases are significant since they mark the first time the Supreme Court has heard a case involving the interpretation of United States antidumping laws. The Supreme Court rarely considers international trade law cases. While the Supreme Court has previously ruled on other aspects of international trade laws, such as the classification of imported merchandise under the customs laws (e.g., United States v. Mead, 533 U.S. 218 (2001) and United States v. Haggar Apparel Co., 526 U.S. 380 (1999)) and whether the harbor maintenance tax imposed on exports violated the Constitution’s export clause (United States v. United States Shoe Corp., 523 U.S. 360 (1998)), never in the long history of the United States antidumping laws has the Supreme Court ruled on a legal issue involving the interpretation of antidumping laws. The Supreme Court has traditionally deferred to the decisions made by judges of the United States Court of International Trade and the United States Court of Appeals for the Federal Circuit.

This case is also being closely watched by practitioners and parties involved on both sides in antidumping cases since the Supreme Court’s decision will affect the scope of products and types of processing arrangements subject to future antidumping investigations and antidumping duties.

This case is also important from an administrative law perspective, as this is the case since the Supreme Court’s 2004 term that it will review a case under the Chevron test. The Court’s opinion in these cases may provide further guidance and elaboration on the degree of deference that the courts owe to administrative agencies whose decisions they are reviewing.

The Supreme Court’s decision in these cases also has several domestic energy and national security policy implications. For example, if the Supreme Court’s chooses to rule in favor of the United States and USEC and impose antidumping duties on the low enriched uranium imports from France at issue in this case, the utility companies will end up paying more for the fuel needed to power their nuclear power costs and will likely pass along those costs to the businesses and consumers that purchase electricity produced by nuclear power plants. By contrast, if the Commerce Department’s decision is upheld by the Supreme Court the United States and USEC are concerned that Russia may choose to increase its output of LEU used to produce electricity, which would decrease the market price and threaten the viability of the domestic enrichment industry and decrease the United States’ ability to acquire nuclear materials critical to conducting military operations.

Finally, the Supreme Court’s decision in these cases will have an impact outside of the borders of the United States as well. If the Supreme Court reverses the Federal Circuit’s ruling and lets stand the Commerce Department’s decision to apply the antidumping law to manufacturing service contracts, the European Union could file a complaint with the World Trade Organization’s Dispute Settlement Body alleging that the decision is contrary to various WTO agreements. In addition, the possibility also exists that other countries could use the Commerce Department’s reasoning to bring antidumping cases against United States products.

The briefs in these case can be found at the following links:

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Effective January 23, 2009, antidumping duty orders on diamond saw blades from the PRC and Korea will be issued. For more information:

-------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-900, A-580-855]

Diamond Sawblades and Parts Thereof from the People's Republic of China and the Republic of Korea: Notice of Court Decision Not In Harmony With Final Determination of the Antidumping Duty Investigations

AGENCY: Import Administration, International Trade Administration, Department of Commerce.

SUMMARY: On January 13, 2009, the United States Court of International Trade ("CIT") affirmed the International Trade Commission's ("ITC") amended determination upon remand that an industry in the United States is threatened with material injury by reason of imports of diamond sawblades and parts thereof ("diamond sawblades") from the People's of China ("PRC") and the Republic of Korea ("Korea"). Diamond Sawblades Mfrs. Coalition v. United States, No. 06-00247, Slip Op. 09-05 (CIT January 13, 2009) ("DSMC"). The case arises out of the ITC's final determination in the antidumping duty investigations. See {Investigations Nos. 731-TA-1092 and 1093 (Final) Diamond Sawblades and Parts Thereof From China and Korea, 71 FR 39128 (July 11, 2006) ("Final Determination").

The judgment in this case was not in harmony with the ITC's Final Determination. If the CIT's opinion in this case is not appealed, or is affirmed on appeal, then antidumping duty orders on diamond sawblades from the PRC and Korea will be issued. In accordance with the decision of the U.S. Court of Appeals for the Federal Circuit ("CAFC") in Timken Co. v. United States, 893 F.2d 337, 341 (Fed. Cir. 1990) ("Timken"), the Department will order the suspension of liquidation of the subject merchandise.

EFFECTIVE DATE: January 23, 2009.

FOR FURTHER INFORMATION CONTACT: Alex Villanueva, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue, NW, Washington, DC 20230, telephone: (202) 482-3208.
SUPPLEMENTARY INFORMATION:
Background
On July 11, 2006, the ITC published its final determination that an industry in the United States was not materially injured or threatened with material injury by reason of imports of diamond sawblades from the PRC and Korea. Final Determination, 71 FR 39128. The petitioners
________________________________________
FOOTNOTE 1 in the antidumping duty investigation instituted an action challenging the ITC's final determination. On February 6, 2008, the CIT issued Diamond Sawblades Mfrs. Coalition v. United States, No. 06-247, Slip Op. 2008-18 (CIT February 6, 2008), which remanded the determination to the ITC for reconsideration. Upon remand, the ITC changed its determination and found that a U.S. industry is threatened with material injury by reason of imports of diamond sawblades from the PRC and Korea. See ITC Pub. 4007 (May 2008), Diamond Sawblades and Parts Thereof from China and Korea: Investigation Nos. 731-TA-1092 and 1093 (Final)(Remand), which can be accessed directly at (http://www.usitc.gov/trade-remedy/731-ad-701-cvd/investigations/index-opinions/index.htm). The CIT issued a confidential opinion regarding the ITC's determination on remand on January 13, 2009. DSMC, Slip Op. 09-05. The ITC informed the Department of Commerce ("Department") by letter dated January 22, 2009, that the CIT's January 13, 2009, opinion in DSMC sustains the ITC's threat-of-material-injury determination. Accordingly, upon notice from the ITC of no appeal or, if appealed, of a "conclusive" decision by the CAFC affirming DSMC, antidumping duty orders on diamond sawblades from the PRC and Korea will be issued.
This interesting news came from http://www.CyberRegs.com

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