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Canadian Wheat Board v. United States

April 19, 2011


Appeal from the United States Court of International Trade in consolidated case nos. 07-CV-0058 and 07-CV-0059, Judge Richard K. Eaton.

The opinion of the court was delivered by: Friedman, Circuit Judge.

Before NEWMAN, FRIEDMAN, and LOURIE, Circuit Judges.

The principal question is whether, after a North American Free Trade Agreement ("NAFTA") binational panel has invalidated a federal antidumping duty order and the Department of Commerce ("Commerce") has revoked the order, the invalidated duties that had been deposited prior to the date of that determination but that had not been liquidated, may be recovered from the United States by the depositors of those duties. The Court of International Trade (sometimes "Trade Court") held that the government could not retain those anti-dumping duties, and that the depositors could recover them. We affirm.


A. A brief summary of the statutory and administrative provisions governing antidumping duties and their judicial review is necessary to understand our decision.

Upon Commerce finding that a product from a foreign country has been "dumped," i.e., sold at less than fair value, in the United States and the International Trade Commission ("Commission") finding that such "dumping" has "materially injured" or "threatened with material injury" a domestic industry, Commerce issues an anti-dumping duty order intended to rectify the unfair trade practice. 19 U.S.C. §§ 1673b(b)(1)(A) (preliminary dumping determination), 1673d (final dumping determination);

1673b(a)(1) (preliminary injury determination), 1673d(b)(1) (final injury determination). Upon issuance of such order, the additional duties must be deposited with United States Customs and Border Protection ("Customs") "pending liquidation." Id. § 1673e(a)(3). "Liquidation means the final computation or ascertainment of duties on entries." 19 C.F.R. § 159.1.

If a party to the antidumping proceeding so requests, Commerce conducts an annual administrative review of the dumping margins for the product. 19 U.S.C. § 1675(a). A request for such review suspends liquidation of the duties while such review takes place. 19 U.S.C. § 1675(a)(2)(C); see also Int'l Trading Co. v. United States, 281 F.3d 1268, 1272 (Fed. Cir. 2002); 19 C.F.R. § 351.212(c)(1).

Similar provisions also cover countervailing duty orders, which are issued when a foreign government has subsidized sales in the United States. The same legal principles govern such duties. Although this case involves both types of duties, we do not discuss them separately and refer to them collectively as "antidumping duties."

Someone wishing to challenge an antidumping duty order has a choice of two methods of doing so. In any case, suit may be brought before the Court of International Trade. 28 U.S.C. § 1581(c); 19 U.S.C. § 1516a(2)(B). The Trade Court may enjoin liquidation of duties pending its decision. 19 U.S.C. § 1516a(c)(2).

If the "dumped" goods originated in Mexico or Canada, however, the antidumping order may be challenged before a NAFTA binational panel. 19 U.S.C. § 1516a(g). In certain circumstances, liquidation of entries may be suspended pending review by a NAFTA panel. 19 U.S.C. § 1516a(g)(5).

Congress has implemented both the NAFTA agreement and its predecessor through enacting legislation. See United States-Canada Free-Trade Agreement Implementation Act of 1988, Pub. L. No. 100-449, 102 Stat. 1851; NAFTA Implementation Act of 1993, Pub. L. No. 103-182, 107 Stat. 2057. Among other things, these statutes amended Section 516A of the Tariff Act of 1930, which governs judicial review of antidumping challenges.

B. In 2003 Commerce, acting in response to a petition

by the United States domestic wheat industry, found that Canadian wheat had been sold in the United States at less than fair value. Canadian Wheat Bd. v. United States, 580 F. Supp. 2d 1350, 1354 (Ct. Int'l Trade 2008) (hereinafter "Canadian Wheat Bd. II"). The Commission determined that the dumping of the wheat had "materially injured" the United States' domestic wheat industry. Durum and Hard Red Spring Wheat from Canada, Inv. Nos. 701-TA-430A and 430B and 731-TA-1019A and 1019B, USITC Pub. 3639 (Oct. 2003). Commerce then issued an antidumping order. Notice of Antidumping Duty Order: Hard Red Spring Wheat from Canada, 68 Fed. Reg. 60,641.

The present case involves Canadian wheat that entered the United States in 2004, subject to Commerce's 2003 antidumping duty order. Canadian Wheat Bd. v. United States, 491 F. Supp. 2d 1234, 1239 (Ct. Int'l Trade 2007) (hereinafter "Canadian Wheat Bd. I"). The appellee Canadian Wheat Board deposited the antidumping duties on the entries. Liquidation of those duties was suspended when Canadian Wheat Board subsequently requested an annual administrative review thereof. Id.

The Canadians challenged the Commission's injury determination before a NAFTA binational panel, which found that there was not substantial evidence in the record that the "dumping" had materially injured the domestic wheat industry, and remanded the case to the Commission for further consideration. In the Matter of: Hard Red Spring Wheat from Canada, USA-CDA-2003-1904-06 (June 7, 2005). On remand, the Commission found that the domestic industry was not "materially injured" by the importation of the Canadian wheat. Hard Spring Wheat from Canada, Inv. Nos. 701-TA-430B and 731-TA-1019B, USITC Pub. 3806 (Oct. 2005). The domestic wheat industry challenged the Commission's remand-determination, but a NAFTA panel affirmed the finding, effective January 2, 2006. In the Matter of: Hard Red Spring Wheat from Canada, USA-CDA-2003-1904-06 (Dec. 12, 2005).

Commerce then revoked the antidumping duty order. Revocation of Countervailing and Antidumping Duty Orders, 71 Fed. Reg. 8,275 (Dep't of Commerce Feb. 16, 2006). Commerce instructed Customs to "terminate the suspension of liquidation of hard red spring wheat from Canada" and "cease collection of cash deposits" as of January 2, 2006. Commerce stated, however, that the "revocation does not affect the liquidation of entries made prior to January ...

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