US Trade Law Update: June 2017

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

U.S. DEPARTMENT OF COMMERCE DECISIONS

Investigations:

  • On May 3, 2017, Commerce issued a notice of extension of time for public comment regarding status of the People’s Republic of China as a nonmarket economy country under the antidumping and countervailing duty laws for certain aluminum foil from the People’s Republic of China.
  • On May 9, 2017, Commerce initiated a less-than-fair-value, and countervailing duty investigations of certain tool chests and cabinets from the People’s Republic of China and the Socialist Republic of Vietnam.
  • On May 15, 2017, Commerce issued an antidumping duty order for ferrovanadium from the Republic of Korea.
  • On May 16, 2017, Commerce initiated a less-than-fair-value, and countervailing duty investigations of certain cold-drawn mechanical tubing of carbon and alloy steel from the Federal Republic of Germany, India, Italy, the Republic of Korea, the People’s Republic of China, and Switzerland.
  • On May 18, 2017, Commerce issued a countervailing duty order on 1-hydroxyethylidene-a, 1-disphosphonic acid from the People’s Republic of China.
  • On May 18, 2017 Commerce amended its final determination of sales at less than fair value, and issued an antidumping duty order for 1-hydroxyethylidene-a, 1-disphosphonic acid from the People’s Republic of China
  • On May 22, 2017, Commerce issued its final determination of sales at less than fair vaue on steel concrete reinforcing bar from the Republic of Turkey and Japan.
  • On May 22, 2017, Commerce issued final affirmative countervailing duty determination for steel concrete reinforcing bar from the Republic of Turkey and Japan.
  • On May 25, 2017, Commerce issued a countervailing duty order for certain carbon and alloy steel cut-to-length plate from the Republic of Korea.
  • On May 25, 2017, Commerce amended its final affirmative antidumping determinations for France, the Federal Republic of Germany, the Republic of Korea and Taiwan, and issued antidumping duty order for certain carbon and alloy steel cut-to-length plate from Austria, Belgium, France, the Federal Repubic of Germany, Italy, Japan, the Republic of Korea, and Taiwan.
  • On May 26, 2017, Commerce initiated a countervailing duty investigation of 100 to 150-seat large civil aircraft from Canada.

Administrative Reviews:

 

  • On May 15, 2017, Commerce issued its final results and partial rescission of countervailing duty administrative review for multilayered wood flooring from the People’s Republic of China.
  • On May 19, 2017, Commerce issued its final results of antidumping duty administrative review and final determination of no shipments; 2014-2015 for welded ASTM A-312 stainless steel pipe from the Republic of Korea.
  • On May 22, 2017, Commerce issued its final results of the antidumping duty administrative review for certain polyester staple fiber from the People’s Republic of China.
  • On May 22, 2017, Commerce issued its final results of antidumping duty administrative review and final determination of no shipments; 2014-2015 for carbon and certain alloy steel wires rod from Mexico.
  • On May 23, 2017, Commerce issued its final results of antidumping duty administrative review of polyethylene retail carrier bags from Malaysia.
  • On May 30, 2017, Commerce issued its final results of antidumping duty administrative review 2014-2015 for certain cased pencils from the People’s Republic of China.
  • On May 31, 2017, Commerce issued a notice of correction to the final results of countervailing duty administrative review for multilayered wood flooring from the People’s Republic of China.

 

Sunset Reviews:

 

  • On May 9, 2017, Commerce issued a continuation of antidumping duty and countervailing duty orders for sulfanic acid from India and the People’s Republic of China.
  • On May 9, 2017, Commerce issued final results of the expedited fourth sunset review of the antidumping duty order for light-walled welded rectangular carbon steel tubing from Taiwan.
  • On May 22, 2017, Commerce initiated an expedited review of the countervailing duty order for certain carbon and alloy steel cut-to-length plate from the People’s Republic of China.
  • On May 26, 2017, Commerce continued the antidumping duty order for certain helical spring lock washers from the People’s Republic of China and Taiwan.

U.S. INTERNATIONAL TRADE COMMISSION

Section 701/731 Proceedings

Investigations

  • On May 5, 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 Austria, Belgium, France, Germany, Italy, Japan, Korea, and Taiwan.
  • On May 5, 2017, the ITC determined that there is a reasonable indication that a U.S. industry is materially injured by reason of imports of biodiesel from Argentina and Indonesia.
  • On May 8, 2017, the ITC determined that there is reasonable indication that a U.S. industry is materially injured or threatened with material injury by reason of imports of carbon and certain alloy steel wire rod from Belarus, Italy, Korea, Russia, South Africa, Spain, Turkey, Ukraine, the United Arab Emirates, and the U.K.
  • On May 12, 2017, the ITC determined that there is a reasonable indication that a U.S. industry is materially injured by reason of imports of carton closing staples from China.
  • On May 24, 2017, ITC determined that a U.S. industry is materially injured by reason of imports of finished carbon steel flanges from Spain.
  • On May 25, 2017, ITC determined that there is a reasonable indication that a U.S. industry is materially injured by reason of imports of tool chests and cabinets from China and Vietnam.

Sunset Review Decisions

 

  • On May 2, 2017, the ITC determined that revoking the existing antidumping duty orders on imports of frozen warmwater shrimp from China, India, Thailand, and Vietnam would likely lead to continuation or recurrence of material injury.
  • On May 2, 2017, the ITC determined that revoking the existing antidumping duty orders on helical spring lock washers from China and Taiwan would likely lead to continuation or recurrence of material injury.
  • On May 8, 2017, the ITC voted to expedite it’s five-year (“sunset”) review concerning the suspended investigation of uranium from Russia.
  • On May 18, 2017, ITC Determined rhat revoking the existing antidumping duty order of imports of stainless steel wire rod from India is materially injuring.

Section 337 Proceedings

  • On May 1, 2017, the ITC voted to institute an investigation of certain height-adjustable desk platforms and components thereof.
  • On May 2, 2017, the ITC voted to institute an investigation of certain mirrors with internal illumination and components thereof.
  • On May 10, 2017, the ITC voted to institute an investigation of certain collapsible sockets for electronic devices and components thereof.
  • On May 17, 2017, ITC voted to institute an investigation of certain robotic vacuum cleaning devices and components thereof such as spare parts.
  • On May 26, 2017, ITC voted to institute an investigation of certain magnetic tape cartridges and components thereof.
  • On May 26, 2017, ITC voted to institute an investigation of certain digital cameras, software, and components thereof.

 

U.S. BUREAU OF CUSTOMS AND BORDER PROTECTION

 

  • On May 1, 2017, the Department of Justice announced that two individuals agreed to pay penalties for the evation of customs duties on imports of wooden bedroom furniture from China under the False Claims Act.

 

 

 

COURT OF INTERNATIONAL TRADE

Summary of Opinions

 

The court sustained an order with respect to a new shipper review of the antidumping duty order on Garlic from China.  Under protest Commerce reversed its earlier decision to rescind the review and calculated a producer specific dumping margin which the court sustained.  The key issue in Commerce’s analysis and the litigation was whether or not the sale in question was a bona fide sale using Commerce’s own criteria.

The case was a challenge to the antidumping duty investigation on solar panels from China issued in December 2014.  The key issue in the case was whether or not Commerce correctly treated several companies as a single entity and other case specific calculation issues.  After review, the court remanded to Commerce to further explain its decision to collapse two sets of companies and the decision to value certain inputs using an alternative surrogate value as both decisions were not supported by substantial evidence.

The court sustained Commerce’s remand with respect to its final determination in the countervailing duty investigation on OCTG from China.  The key issues in the case was (1) the use of December 11, 2011 as the cut-off date for identifying and measuring countervailable subsidies; (2) use of disparate freight rates for valuation of a benchmark; and other case specific calculation issues.  The selection of the cut-off-date for meausuring subsidies was remanded by the court as Commerce had not articulated a cogent relationship between China’s WTO accession and the ability to identify and measure subsidies.  On remand the court had instructed Commerce to investigate each program and make a determination after examination.

 

court of appeals for the federal circuit

summary of opinions

 

The appeal concerned the award of equitable prejudgment interest and the date from which statutory prejudgment interest accrued.  The court relied on a earlier ruling and found that equitable pre-judgment interest was not warranted  where the Government received 6{bfa08a400c7550404055ff04715e84c9172815d33c25eb3b84e230636ecdc007} interest pursuant to §580 and that §580 interest accruse from the date of Customs’ first, pre-protest demand.

Borusan Mannessman and the Government of Turkey challenged the CIT’s decision to uphold the application of adverse facts available and that the Turkish market prices were distorted in the original investigation on OCTG from Turkey (July 2014).  The CIT determined that the use of AFA was appropriate as the law did not require Commerce to do more than it had already done given that Borusan did not provide the information requested even after multiple requests. However, the court found that Commerce’s conclusion amounted to a per se rule of market distortion and was not supported by substantial evidence.  The CIT decision was affirmed in entirety.

The case was a challenge to the 3rd administrative review of steel nails from China.  The plaintiff-appellant Suntec argued that it was prejudiced by the fact that Mid-Continent did not serve its original request for review on Suntec.  The CIT and the Federal Circuit both found that publication of the notice of initiation in the Federal Register amounted to notice as a matter of law and thus Suntec’s failure to participate in the review did not show any prejudice from non knowing about the review pre-initiation.

The appeal was a challenge to the CIT’s judgment that the government is not entitled to non-statutory equitable interest for unpaid antidumping duties on imported goods.  While the TFTEA provides for the grant of equitable and statutory prejudgment interest, there is no requirement that the grant of interest is a must.  The Federal Circuit concluded that the CIT retained broad discretion to apply non-statutory prejudgment interest according to traditional equitable princples and affirmed the lower court ruling.

The case turned on the issue of exhaustion of administrative remedies.  The Federal Circuit vacated and remanded the CIT’s decision on the grounds that parties failed to exhaust their arguments before Commerce by raising a question of affiliation and that the CIT abused its discretion by reviewing the appeal on this issue.

 

OTHER TRADE MATTERS

 

  • The United Staes will terminate the agreements suspending the antidumping and countervailing duties on Mexican sugar and reimpose duties unless both governments agree on renegotiated versionsof the deals. The agreements have been in renegotiation discussions for over a year with limited or no agreement on the negotiating conditions.  (Insice US Trade May 5, 2017 at 6).
  • The Commerce’s Departments decision to apply higher antidumping duties based on “a particular market situation” in the Korean OCTG case issued in April is causing concern at the WTO. China, Russia, and South Korea all expressed concern that it has serious impolications for the global trading system.  The question of whether the use of this particular statutory provision is WTO compliant and is up in the air pending an appeal to the CIT and/or the WTO.  (Inside US Trade May 5, 2017 at 16).
  • The Chinese government has refused to respond to requests for comment on China’s non-market economy status because it believes that the statutory treatment of China as a non-market economy is overridden by the WTO accession protocol. (Inside US Trade May 12, 2017 at 1).
  • Mexico may be planning a retaliatory antidumping case on U.S. corn syrup as talks on the sugar suspension agreements falter. The planned action is directly linked to the failure to reach an agreement on sugar.  (Inside US Trade May 12, 2017 at 3).
  • The United Steel Workers urges CFIUS to block the acquisition of Aleris Corporation (a aluminum maker) by Zhongwang USA a subsidiary of a major Chinese producer of aluminum extrusions. (Inside US Trade May 12, 2017 at 13).
  • The Counsil of the Europoean Union as approved a position by which it plans on reforming the EU’s list of non-market economy countries but would still allow a construction of prices if significant market distortions are found. (Inside US Trade May 12, 2017 at 17).
  • USTR on May 18, 2017, formally notified Congress of its intention to renegotiate NAFTA. (Inside US Trade May 19, 2017 at 1).
  • The WTO Appellate Body in DS471 found that Commerce’s use of adverse facts available in antidumping investigations is open to a wide “as such” challenge that could have far reaching implications. (Inside US Trade May 19, 2017 at 13)
  • The new administrations budget for FY 2018 calls for major cuts to the Commerce Department except for the agency tasked with handling Antidumping and Countervailing duty trade actions which received a $4.5 million budget increase. (Inside US Trade May 26, 2017 at 1).
  • On May 24, 2017, the Commerce Department held a 4.5 hour public hearing in its Section 232 Investigation which the Commerce Secretary Wilbur Ross hopes to complete by the end of June 2017. The normal schedule is 270 days which is being truncated and expedited significantly in a push by the new administration.  Several U.S. producers; U.S. importers and representatives of foreign governments and exporters gave testimony.  (Inside US Trade May 26, 2017 at 5).
  • The Chinese solar company – Wuxi Suntech – is claiming that the law firm – Mayer Brown – which represents the U.S. manufacturer Suniva in the Section 201 proceecing has a conflict of interest and that the because of the conflict the case should be dismissed. (Inside US Trade May 26, 2017 at 19).
  • House of Representative members have written a letter to Commerce urging the settling of the sugar dispute and expressing concern that the reimposition of AD and CVD duties would likely cut off a significant amount of trade with Mexico. The letter also raises concerns over the potential effect on other agricultural exports by the U.S. to Mexico and the use of sugar by companies which manufacture food products for American consumers.  (Inside US Trade May 26, 2017 at 26).

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