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Nucor Fastener Appeal Dismissed
The U.S. Court of International Trade dismissed Nucor Fastener’s antidumping appeal, upholding the Department of Commerce’s refusal to initiate consideration of currency undervaluation as a subsidy, trade attorney Matthew McGrath told GlobalFastenerNews.com.
Nucor Fastener still has another appeal pending. The company appealed the International Trade Commission’s unanimous decision that the domestic fastener industry had not been injured by alleged dumping of products on the market. That appeal continues to move forward with full briefs being filed this month. A reply brief is due on October 28 and oral arguments are set to be scheduled after that.
After hearing oral arguments by Nucor Fastener, the U.S. Department of Justice and a coalition of importers on Sept. 16, the judge found Nucor Fastener’s appeal “was moot in light of the ITC’s decision, and not ripe for judicial review, since there was no final agency determination to appeal,” McGrath told FIN. “Therefore, (the court) declined to take jurisdiction.”
McGrath characterized the currency undervaluation appeal as Nucor Fastener’s “‘secondary’ appeal backing up their challenge to the ITC’s unanimous preliminary negative injury decision.”
“Nucor might decide to appeal the court’s decision to dismiss, but it seems unlikely at this point, since their more immediate interest is the policy issue of whether currency undervaluation can be treated as a countervailable subsidy under US law, and there are other investigations working their way through the system that offer better opportunities for court jurisdiction,” McGrath explained.
McGrath, who represents a group of importers in these cases, told FIN in August the judge could find that the ITC failed to consider the affects of product sales declines, though in his opinion a reversal appears unlikely.
In the event the judge ruled in favor of Nucor Fastener, the case would be sent back to the ITC, which would need to reach a 4-2 decision in favor of the judge’s ruling to reinstate the case, McGrath explained.
The original ITC vote against Nucor Fastener’s antidumping petition was 6-0.
On November 6, 2009, the ITC unanimously rejected Nucor Fastener’s claims that standard fastener imports from China and Taiwan were being dumped domestically.
In its petitions, filed in September, Nucor Fastener alleged average dumping margins of 145% for Chinese imports, and 74% for imports from Taiwan.
But the ITC determined “there is not a reasonable indication that a U.S. industry is materially injured or threatened with material injury by reason of imports of certain standard steel fasteners from China that are allegedly subsidized and from China and Taiwan that are allegedly sold in the United States at less than fair value.”
In its 137-page public report “Certain Standard Steel Fasteners from China and Taiwan,” the ITC concluded that standard fastener imports did not gain more market share from 2006 to 2008. Likewise, the commission said Nucor Fastener “failed to provide adequate details” to support allegations that it was losing sales and revenues to cheaper imports.
In the notice of appeal, Price disagreed, saying Nucor Fastener provided “detailed evidence of injury.” He noted that U.S. production and capacity utilization decreased by 50%; Chinese and Taiwanese imports grew to 56.8% of the market by “pervasively underselling U.S. fasteners by significant margins”; and that the U.S. industry lost production jobs, along with declines in shipments, investment, R&D and operating profit at a time when Chinese and Taiwanese producers “substantially increased capacity and inventories.”
“The U.S. fastener industry and its workers deserve a fair opportunity to present their case,” Price emphasized.
According to the ITC, from 2006 to 2008 imports of certain standard steel fasteners from China increased by 4.48% and were valued at an estimated $291 million in 2008. Imports from Taiwan over the same time period decreased by 19.09% and were valued at an estimated $395 million in 2008. ©2010 GlobalFastenerNews.com
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