Antidumping/Countervailing Duties

 

Federal Circuit Affirms Commerce's Anti-Dumping Duty on Honey from China. Zhejiang Native Produce & Animal By-Products Imp. & Exp. Grp. Corp. v. United States, [Prost, C.J., O'Malley, Stoll, JJ.] In a per curiam decision issued on September 10, 2018, the Court of Appeals for the Federal Circuit affirmed the Court of International Trade's judgment sustaining Commerce's recalculation of anti-dumping duties imposed on imports of honey from China. Following a stay pending appeal in a related case, and a voluntary remand for further administrative proceedings, the trade court sustained Commerce's selection of valuation data and financial statements and the methodology to adjust for inflation.

 

Court of International Trade Sustains Commerce Department's Remand Decision Regarding Antidumping Duties on Xanthan Gum from China. CP Kelco US, Inc. v. United States [Goldberg, S.J.]. On September 17, 2018, the Court of International Trade sustained Commerce's remand redetermination regarding imports of xanthan gum from China. Earlier in the case, the court sustained certain aspects of Commerce's surrogate value determination, but remanded Commerce's determination to reject a financial statement of a Thai company that was not completely translated. Finding the incomplete translation unacceptable, Commerce had relied instead on a financial statement of a different Thai company despite evidence that the company had received distortive subsidies from the Thai government. The court rejected Commerce's rationales, and ultimately directed Commerce to use the not-fully-translated statement, which Commerce then did in the fourth remand, reducing respondent's dumping margin to zero. The court sustained the remand determination and entered judgment.

  

Court of International Trade Grants Motion to Dismiss Antidumping Challenge for Lack of Jurisdiction. National Nail Corp. v. United States, No. 18-00053 [Barnett, J.]. On September 24, 2018, the Court of International Trade granted the government's motion to dismiss plaintiff's complaint for lack of subject-matter jurisdiction. National Nail, an importer of steel nails from Taiwan, sought to challenge Commerce's antidumping results. National Nail had not participated in the underlying administrative proceeding, as required by statute to seek judicial review. Because judicial review would have been available had National Nail satisfied the statutory requirement applicable to antidumping proceedings, the court rejected National Nail's attempt to invoke the court's "catch-all" jurisdictional provision, which is only available when no other provision is or could have been available.

 

Court of International Trade Sustains Commerce's Countervailing Duty Investigation of Steel Concrete Reinforcing Bar from Turkey.   RTAC v. United States, No. 17-00157 [Gordon, J.]. On September 20, 2018, the Court of International Trade sustained Commerce's final determination in a countervailing duty investigation of rebar from Turkey. The court sustained Commerce's decision that the Turkish government's operation of an electricity grid through which electricity is bought and sold by private parties at market prices did not constitute a countervailable subsidy to rebar producers who sell electricity on that grid. The court also sustained Commerce's determination that electricity sales to public entities were not presumptively for more than adequate remuneration simply because the rates negotiated between the parties were based on prices set by a national price schedule, when the record did not indicate that the national prices were anything other than market-based.

 

Court of International Trade Sustains Determination of Masked Dumping in Administrative Review of Nails from China. The Stanley Works (Langfang) Fastening Systems Co., Ltd. v. United States [Eaton, J.]. On August 13, 2018, the Court of International Trade sustained Commerce's imposition of antidumping duties on imports of Chinese nails. The Chinese exporter, Stanley, had challenged Commerce's methodology for determining the rate of dumping, which is generally the difference between the average prices paid for subject merchandise in the home and United States markets. The court sustained Commerce's masked dumping methodology, in which the agency used the Cohen's- d test and other statistical thresholds to determine whether Stanley had differentially priced nails to certain regions, customers, or over certain periods of time. In such cases, instead of comparing average values, Commerce compares individual United States transaction values to the average foreign market value and sets all negative rates of dumping to zero, thereby increasing the rate of duty. The court agreed that Commerce had permissibly exercised its gap-filling authority in devising its methodology to unmask hidden dumping and applying it to this case.

  

Court of International Trade Sustains Commerce's Administrative Review of Antidumping Order Covering Certain Steel Nails From The People's Republic Of China. Mid Continent Steel & Wire, Inc. v. United States, No. 17-00051, [Eaton, SJ]. On June 19, the Court of International Trade susatained in their entirety the final results of Commerce's 2014-2015 administrative review of the antidumping duty order covering certain steel nails from China. Commerce had calculated a dumping margin of 5.78 percent for mandatory respondent The Stanley Works (Langfang) Fastening Systems Co., Ltd. and Stanley Black & Decker, Inc. (Stanley). The other mandatory respondent, Tianjin Lianda Group Co., Ltd., was assigned the China-wide rate of 188.04 percent because it had failed to establish independence from the Chinese government. Commerce established the all-others rate for separate rate companies as 5.78 percent, the rate calculated for Stanley, because the general rule for calculating the all-others rate is to average the margins for mandatory respondents, excluding zero and de minimis margins, and margins based on adverse facts available. Mid Continent argued that the 5.78 percent margin assigned to the separate rate companies did not reflect their economic reality, and that Commerce erred in valuing the surrogate data inputs for Stanley's sealing tape and plastic granules. The court upheld Commerce's decision to apply the general rule in assigning the all-others rate and also held that Commerce's choice of surrogate data inputs for Stanley's sealing tape and plastic granules was supported by substantial evidence.

 

Court of International Trade Dismisses Complaint Brought by Producers and Importers of Chlorinated Isocyanurates from China Under 28 U.S.C. §1581(i) . Juancheng Kangtai Chemical Co., Ltd. and NAC Group, Ltd. v. United States, [Goldberg, SJ.] On June 19, 2018, the Court of International Trade granted the United States' motion to dismiss two Chinese producers and importers' complaint brought under 28 U.S.C. §1581(i). The court found that residual jurisdiction was not available under section 1581(i) with respect to the first three counts of the complaint. In general, jurisdiction is available under section 1581(i) only when jurisdiction is not and could not have been available under another subsection of section 1581, or when another subsection provides an inadequate remedy. The court determined that an adequate remedy was available under section 1581(c) with respect to the first three counts of the complaint, which contested various aspects of an antidumping duty order. With respect to the final count of plaintiffs' complaint challenging a Commerce procedure, the court dismissed the count because plaintiffs had not articulated any injury resulting from the procedure.

  

Customs

 

Federal Circuit Affirms Court of International Trade's Judgment Upholding the Government's Classification of LED Tea Lights and Candles . The Gerson Company v. United States. On August 6, 2018, the Court of Appeals for the Federal Circuit affirmed the Court of International Trade's grant of summary judgment for the government, finding that certain imported LED tea lights and candles are classifiable for tariff purposes as "lamps and lighting fittings" under heading 9405, Harmonized Tariff Schedule of the United States (HTSUS), rather than as "electrical machines and apparatus, having individual functions" under heading 8543, HTSUS, or as "diodes, transistors and similar semiconductor devices; . . . light-emitting diodes" under heading 8541, HTSUS, as claimed by the plaintiff. The court rejected the importer's broad interpretation of heading 8543 ("electrical machines and apparatus") to include the products at issue and found that such an interpretation would impose a "specific, and drastic, limitation" on the scope of heading 9405, which is not supported by the terms of the heading itself. The decision means that importers will continue to pay duties at a rate of 3.9 percent, instead of 2 percent rate.

 

Court of International Trade Grants Government's Motion to Dismiss Action Challenging Denial of Request for Retroactive GSP Treatment . Industrial Chemicals, Inc. v. United States (Ct. No. 17-00177) [Choe-Groves, J.]. On September 24, 2018, the Court of International Trade granted the government's motion to dismiss this action for lack of subject matter jurisdiction and failure to state a claim. The court found that U.S Customs and Border Protection (CBP) had properly denied plaintiff's request for retroactive duty free treatment under the Generalized System of Preferences (GSP) because the request was made after the statutory deadline for filing such claims. The court also found that a handwritten note from CBP informing plaintiff of the statutory deadline for retroactive GSP claims did not constitute a decision that could be protested. As a result, the court lacked jurisdiction because plaintiff's protest was untimely, having been made more than 180 days after liquidation.

  

Court of International Trade Dismisses Complaint for Failure to Satisfy Pre-Filing Requirements. Dis Vintage, LLC v. United States, Court No. 16-00085 [Stanceu, CJ]. Plaintiff, an importer, brought this action to challenge the denial of an administrative protest by Customs and Border Protection (CBP). By statute, an importer must pay "all liquidated duties, charges, or exactions" before seeking judicial review of CBP's protest decision. On August 18, the court granted the government's motion to dismiss for lack of jurisdiction upon finding that plaintiff had failed to pay all amounts assessed by CBP prior to filing the action. Although the outstanding balance was minimal ($26.16 in interest), and plaintiff eventually paid the full amount owed, the court held that, because the payment requirement is jurisdictional, it must be satisfied before the action is initiated. The court rejected plaintiff's contentions, sounding in equitable estoppel, that it was not provided with adequate notice of the exact amount owed and that email communications from CBP did not alert it to the open status of its bill. The court also noted that, when plaintiff finally paid the amount owed, it still had time to dismiss the action and commence a new one.

  

Court of International Trade Asserts Jurisdiction to Entertain Actions Seeking to Collect Federal Excise Taxes on Imported Tobacco Products. United States v. Maverick Marketing LLC, et al. (Ct. Int'l Trade) [Kelly, J.]. On July 7, 2018, the Court of International Trade held that Federal Excise Tax (FET) on imported tobacco products collected by CBP shall be treated as a "customs duty" for the purposes of the court's jurisdiction. The government had alleged that an importer and domestic cigar distributor had unlawfully conspired to shield the true value of imported cigars to evade FET, which is based on the price of the first arms-length sale after importation.