US Trade Law Update: April 2017

This bulletin is courtesy of the Law Offices of Nithya Nagarajan, LLC

U.S. DEPARTMENT OF COMMERCE DECISIONS

Investigations:

  • On March 1, 2017, Commerce preliminarily determined that counteravailable subsidies are being provided to producers and exporters of steel concrete reinforcing bar from the Republic of Turkey.
  • On March 1, 2017, Commerce published its final determination finding that 1,1,1,2 Tetrafluoroethane (R-134a) from the People’s Republic of China are being sold at less than fair value.
  • On March 3, 2017, Commerce issued its antidumping duty order on certain biaxial integral geogrid products from the People’s Republic of China.
  • On March 3, 2017, Commerce issued the final affirmative determination of sales at less than fair value and negative final determination of critical circumstances for phosphor copper from the Republic of Korea.
  • On March 6, 2017, Commerce issued countervailing duty orders on certain new pneumatic off-the-road tires from India and Sri Lanka.
  • On March 7, 2017, Commerce preliminarily determined in the affirmative that steel concrete reinforcing bar from Taiwan, Turkey, and Japan is being sold at less than fair value.
  • On March 9, 2017, Commerce issued antidumping duty and countervailing duty orders on ammonium sulfate from the People’s republic of China.
  • On March 17, 2017, Commerce issued antidumping and countervailing duty orders on certain amorphous silica fabric from the People’s Republic of China.
  • On March 20, 2017, Commerce issued its antidumping and countervailing duty orders on certain carbon and alloy steel cut-to-length plate from the People’s Republic of China.
  • On March 21, 2017, Commerce determined that imports of ferrovanadium from the Republic of Korea are being sold at less than fair value.
  • On March 21, 2017, Commerce made its final determinations that that 1-Hydroxyethylidene-1, 1-Diphosphonic acid from the People’s Republic of China are being sold at less than fair value and are being subsidized
  • On March 28, 2017, Commerce initiated the antidumping and countervailing duty investigations on imports of certain aluminum foil from the People’s Republic of China.
  • On March 29, 2017, Commerce issued a notice of inquiry into the status of the People’s Republic of China as a Non-Market Economy country under the antidumping and countervailing duty laws and comments from interested parties are due 30 days after publication in the Federal Register
  • On March 29, 2017, Commerce initiated the antidumping and countervailing duty investigations on Silicon Metal from Australia, Brazil, Kazakhstan, and Norway

Administrative Reviews:

  • On March 6, 2017, Commerce published its notice of opportunity to request review of antidumping or countervailing duty order, finding, or suspended investigation with February anniversary dates.
  • On March 8, 2017, Commerce issued final results of antidumping duty administrative review of magnesium metal from the People’s Republic of China for 2015-2016.
  • On March 13, 2017, Commerce issued final results of antidumping duty administrative review for large power transformers from the Republic of Korea for 2014-2015.
  • On March 15, 2017, Commerce published its notice of initiation of administrative reviews with January anniversary dates
  • On March 16, 2017, Commerce issued final results of antidumping duty administrative review of uncovered innerspring units from the People’s Republic of China for 2015-2016.
  • On March 17, 2017, Commerce issued final results of antidumping duty administrative review of certain lined paper products from India for 2014-2015.
  • On March 20, 2017, Commerce issued final results of antidumping duty administrative review, final determination of no shipments and final partial rescission of certain steel nails from the People’s Republic of China for 2014-2015.
  • On March 27, 2017, Commerce issued final results and partial rescission of antidumping duty administrative review of certain frozen fish fillets from the Socialist Republic of Vietnam for 2014-2015.

Changed Circumstances Reviews:

  • On March 2, 2017, Commerce issued the final results of changed circumstances review, and revocation of the antidumping duty order on certain cold-rolled steel flat products from Japan.
  • On March 6, 2017, Commerce simultaneously initiated and issued preliminary results of changed circumstances reviews of the antidumping duty order on crystalline silicon photovoltaic cells and products from the People’s Republic of China.
  • On March 21, 2017, Commerce issued notice of preliminary results of antidumping duty changed circumstances review on certain pasta from Italy.
  • On March 22, 2017, Commerce issued final results of changed circumstances reviews of multilayered wood flooring from the People’s Republic of China.

Sunset Reviews:

  • On March 3, 2017, Commerce automatically initiated the five-year review of the AD/CVD orders for brass sheet & strip from France, Germany, Italy, and Japan, and silicon metal from the People’s Republic of China.
  • On March 6, 2017, Commerce issued its final results of expedited first sunset review of the countervailing duty order for multilayered wood flooring from the People’s Republic of China.
  • On March 6, 2017, Commerce issued final results of expedited fourth sunset review of the antidumping duty order for gray portland cement and cement clinker from Japan.
  • On March 7, 2017, Commerce issued final results of the expedited fourth sunset reviews of the antidumping duty orders for welded ASTM A-312 stainless steel pipe from South Korea and Taiwan.
  • On March 7, 2017, Commerce issued final results of the expedited fourth sunset reviews of the antidumping duty orders for certain helical spring lock washers from the People’s Republic of China.
  • On March 9, 2017, Commerce issued its final results of expedited first sunset review of antidumping duty order for multilayered wood flooring from the People’s Republic of China.
  • On March 15, 2017, Commerce announced upcoming sunset reviews for April 2017 of the orders on Garlic from China; Stilbenic Optical Brightening Agents from China and Taiwan and Steel Nails from UAE.
  • On March 21, 2017, Commerce published a notice of continuation of the antidumping duty order for certain artist canvas from the People’s Republic of China.

Scope Rulings & Anticircumvention Determinations:

  • On March 15, 2017, Commerce issued a notice of scope rulings and anticircumvention determinations for:
  • Certain circular welded non-alloy steel pipe from Mexico
  • Aluminum extrusions from the People’s Republic of China
  • Certain lined paper products from the People’s Republic of China
  • Certain oil country tubular goods from the People’s Republic of China
  • Multilayered wood flooring from the People’s Republic of China
  • Non-Malleable cast iron pipe fittings from the People’s Republic of China
  • Seamless carbon and alloy steel standard, line, and pressure pipe from the People’s Republic of China
  • Link to Federal Register

U.S. INTERNATIONAL TRADE COMMISSION

Section 701/731 Proceedings

Investigations

  • On March 3, 2017, the ITC determined that a U.S. industry is materially injured by reason of imports of carbon and alloy steel cut-to-length plate from China.
  • On March 3, 2017, the ITC determined that a U.S. industry is materially injured by reason of imports of stainless steel sheet and strip from China.
  • On March 23, 2017, the ITC determined that a U.S. industry is materially injured by reason of imports 1,1,1,2-tetrafluoroethane (R-134a) from China.
  • On March 30, 2017, the ITC determined that a U.S. Industry is materially injured by reason of imports of phosphor copper from Korea.

Sunset Review Decisions

  • On March 3, 2017, the ITC announced that it will conduct full 5-year Sunset reviews concerning the antidumping and countervailing duty orders on cut-to-length carbon-quality steel plate from India, Indonesia, and Korea.
  • On March 6, 2017, the ITC voted to expedite its five-year Sunset review concerning the antidumping duty order on stainless steel wire rod from India.
  • On March 10, 2017, the ITC determined that revoking the existing antidumping and countervailing duty orders on certain aluminum extrusions from China would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time.
  • On March 15, 2017, the ITC determined that revoking the existing antidumping duty order on pure magnesium from China would be likely to lead to continuation or recurrence of material injury within a reasonable foreseeable time.
  • On March 28, 2017, the ITC determined that revoking the existing antidumping and countervailing duty orders on sulfanilic acid from China and India would likely lead to continuation or recurrence of material injury within a reasonably foreseeable time.
  • On March 30, 2017, the ITC determined that a U.S. industry is materially injured by reason of imports of phosphor copper from Korea.

Section 337 Proceedings

  • On March 6, 2017, the ITC voted to institute an investigation of certain hybrid electric vehicles and components thereof.
  • On March 9, 2017, the ITC voted to institute an investigation of certain electrical connectors, components thereof, and products containing the same.
  • On March 17, 2017, the ITC voted to institute an investigation of certain graphics systems, components thereof, and consumer products containing the same.
  • On March 20, 2017, the ITC voted to institute an investigation of certain document cameras and software for use therewith.

U.S. BUREAU OF CUSTOMS AND BORDER PROTECTION

  • CBP announced that its ACE system will now allow the use of an AD/CVD case number on an entry even when the specific HTS number is not yet listed in ACE as well as a guide on the definition of certain fields in the ACE management portal
  • The Antidumping and Countervailing Duty Enforce Actions and Compliance Initiatives for FY 2015 was published

COURT OF INTERNATIONAL TRADE

The court sustained in part and remanded in part Commerce’s final determination in the 2010-2011 administrative review of ball-bearings from the United Kingdom.  The key issues in the case were the resumption of a review after a hiatus; the use of adverse inferences from facts otherwise available and the assignment of a 254.25 percent margin.  The court found that the omissions resulted from the failure to adequately monitor the case and thus warranted an adverse inference.  The court remanded the case to Commerce to properly corroborate the selected adverse rate.

The Court sustained the final determination in the 9th administrative review of the antidumping duty order on frozen warmwater shrimp from India.  The key issue in the case was a challenge to Commerce’s differential pricing analysis with respect to – (1) the use of annual and quarterly weighted-average prices; (2) the inclusion of all U.S. to offset positive dumping margins with negative dumping margins in the average to average methodology but not in the average to transaction methodology; and (3) the use of the average to transaction methodology for all respondents.

The Court remanded Commerce’s determination in the 5th administrative review of steel wire garment hangers from China.  The issues in the case concern (1) the selection of the primary surrogate country; (2) valuation of the labor factor of production; (3) the calculation of surrogate financial ratios; (4) valuation of certain inputs; and (5) valuation of brokerage and handling.  Given that Commerce did not fully analyze the comparability of the viable surrogate countries, the Court remanded to Commerce to reconsider its selection of the primary surrogate country.

The case was a challenge to the 10th administrative review of wooden bedroom furniture from China.  The plaintiffs challenged the final results of review on the grounds that Commerce failed to examine case specific duty evasion concerns raised during the administrative proceeding and that it also failed to analyze the extent of cooperation before determining that the respondent did not qualify for a separate rate.  The court concluded that the plaintiff has not presented a cause of action stemming from Commerce’s action with respect to the issue of duty evasion.  Due to the fact that there was no challenge to the actual duty rate – the Court found that it lacks subject matter jurisdiction and granted the Government’s motion to dismiss.

The Court sustained the third remand results issued by Commerce in the antidumping duty investigation on wind towers.  The remand was the result of a decision by the Federal Circuit reversing an earlier CIT decision with respect to the use of case-specific surrogate values and calculation of specific factors of production.  As Commerce followed the Federal Circuits directives, the remand results were sustained.

The court remanded the final results of the 9th administrative review of the antidumping duty order on frozen warmwater shrimp from Vietnam.  The key issue in the case was the selection of an industry labor rate as a surrogate value to value the labor FOP due to the aberrational nature of the surrogate labor values.  The court remanded the case to Commerce to explain and reconsider its decision to use the aberrational surrogate labor rates without a full and complete examination of other wage rate data on the record.

The court sustained the remand results in the antidumping duty investigation on OCTG from India.  The key issues governed company specific challenges to the respondents cost reporting methodology; affiliated relationships, and the ratio test of Commerce’s differential pricing analysis.  The Court affirmed Commerce’s remand redetermination on all 3 counts as the explanations provided by Commerce were supported by substantial evidence on the record.

The court remanded for redetermination the cash deposit rate applied to secure estimated antidumping duties in the investigation on passenger car and light truck tires from China.  The court found that the cash-deposit rate of 11.12{bfa08a400c7550404055ff04715e84c9172815d33c25eb3b84e230636ecdc007} was contrary to law on the basis that the plaintiff was treated differently than the 62 other separate rate respondents who received a larger downward adjustment for export subsidies and domestic pass-through subsidy adjustments.  The Court concluded that there was no rational basis to treat the plaintiff differently than the 62 other separate rate companies and that Commerce’s method for determining the Plaintiff’s cash-deposit rate was arbitrary and capricious.

COURT OF APPEALS FOR THE FEDERAL CIRCUIT

The case was a challenge to Commerce’s 3rd remand scope ruling on aluminum trim kit packages.  Commerce initially found the trim kits to be within the scope of the orders and its 3rd remand following instructions from the CIT found that the kits did not fall within the scope of the antidumping duty and countervailing duty orders on aluminum extrusions from China.  The Federal Circuit found that the CIT erred in its interpretation in finding that the trim kits were outside the scope.  The Court agreed with Commerce’s original finding which was supported by substantial evidence on the record, prior scope rulings, and reversed the CIT decision affirming the 3rd remand, vacate all prior CIT decisions in the same matter, and ordered the CIT to reinstate Commerce’s initial scope ruling.

OTHER TRADE MATTERS

  • Commerce Secretary Ross said that NAFTA consultations will begin in mid-March. (Inside US Trade March 3, 2017 page 1).
  • US-Mexico Sugar talks paused due to the turnover resulting from the new administration but hope to resume negotiations after the new team at both Commerce and Agriculture are in place (Inside US Trade March 3, 2017 page 5).
  • House Minority Leader Pelosi supports the push for the Commerce Department to begin self-initiating trade remedy cases. (Inside US Trade March 3, 2017 page 13).
  • Turkey filed a complaint on March 8th at the WTO claiming that the U.S. used improper pricing data to back up its claim of improper subsidization of certain imports of steel pipe and tube products. (Inside US Trade March 10, 2017 page 16).
  • The Chinese government is preparing to request a panel against the EU at the WTO over its treatment of China as a non-market economy in trade remedy cases, but is not yet announced plans to pursue a similar case against the U.S. (Inside US Trade March 17, 2017 page 3).
  • Sherrod Brown held meetings with Commerce Secretary Ross on March 21st to discuss how the Commerce Department will address steel overcapacity and how Ross and lawmakers can coordinate with the new administration to negotiate better trade deals. (Inside US Trade March 24, 2017 page 12).

Nithya Nagarajan

Nithya Nagarajan
Law Offices of Nithya Nagarajan, LLC
Tel: +1 202-656-2448 | Cel: +1 301-807-1286
E: nithya@intl-tradelaw.com | W: www.intl-tradelaw.com