US Trade Law Update: May 2017

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

U.S. DEPARTMENT OF COMMERCE DECISIONS

Investigations:

  • On April 3, 2017, Commerce issued a countervailing duty order on stainless steel sheet and strip from the People’s Republic of China.
  • On April 3, 2017, Commerce initiated an inquiry into the status of the People’s Republic of China as a nonmarket economy country under the antidumping and countervailing duty laws.
  • On April 4, 2017, Commerce published its initiation notice for the less-than-fair-value and countervailing duty investigations of silicon metal from Australia, Brazil, and Norway.
  • On April 4, 2017, Commerce issued its final determination in the less-than-fair-value investigation of certain carbon and alloy steel cut-to-length plate from the Federal Republic of Germany, France, Italy, and Japan.
  • On April 17, 2017, Commerce issued its final determination of sales at less than fair value for finished carbon steel flanges from Spain.
  • On April 19, 2017, Commerce issued the antidumping duty order on 1,1,1,2 tetrafluroethane (R-134a) from the People’s Republic of China.
  • On April 19, 2017, Commerce published its notice of initiation of countervailing duty investigations for biodiesel from Argentina and Indonesia.
  • On April 19, 2017, Commerce initiated less-than-fair-value and unfair subsidization investigations on biodiesel from Argentina and Indonesia.
  • On April 24, 2017, Commerce issued an antidumping duty order on Phosphor Copper from the Republic of Korea.
  • On April 25, 2017, Commerce initiated a countervailing duty investigation into carbon and alloy steel wire rod from Italy and Turkey.
  • On April 27, 2017, Commerce initiated a less-than-fair-value investigation for carton-closing staples from the People’s Republic of China.
  • On April 28, 2017, Commerce preliminarily determined that counteravailable subsidies are being provided on certain softwood lumber products from Canada.

Administrative Reviews:

  • On April 3, 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 April 10, 2017, Commerce published its notice of initiation of antidumping and countervailing duty administrative reviews with February anniversary dates.
  • On April 12, 2017, Commerce issued its final results of antidumping duty administrative review and new shipper review of freshwater crawfish tail meat from the People’s Republic of China.
  • On April 12, 2017, Commerce issued final results of antidumping duty administrative review for polyethylene terephthalate film, sheet, and strip from the United Arab Emirates.
  • On April 17, 2017, Commerce issued final results of countervailing duty administrative review for certain lined paper products from India.
  • On April 17, 2017, Commerce issued final results of antidumping duty administrative review for certain oil country tubular goods from the Republic of Korea.
  • On April 17, 2017, Commerce issued final results of antidumping duty administrative review for steel wire garment hangers from the People’s Republic of China.
  • On April 18, 2017, Commerce issued final results of countervailing duty administrative review for certain new pneumatic off-the-road tires from the People’s Republic of China.
  • On April 18, 2017, Commerce issued final results of countervailing duty administrative review for certain oil country tubular goods from India.
  • On April 18, 2017, Commerce issued final results of countervailing duty administrative review for citric acid and certain citrate salts from Canada.
  • On April 19, 2017, Commerce issued final results of antidumping duty administrative review and final determination for narrow woven ribbons with woven selvedge from Taiwan.
  • On April 20, 2017, Commerce issued final results of antidumping duty administrative review for certain oil tubular goods from the Socialist Republic of Vietnam.
  • On April 21, 2017, Commerce issued final results of antidumping duty administrative review for certain new pneumatic off-the-road tires from the People’s Republic of China.
  • On April 26, 2017, Commerce amended its final results of antidumping duty administrative review for certain steel nails from the People’s republic of China.

Changed Circumstances Reviews:

  • On April 4, 2017, Commerce issued its final determination of sales at less than fair value and final affirmative determination of critical circumstances for certain carbon and alloy steel cut-to-length plate from Italy, the Republic of Korea, and Taiwan.
  • On April 4, 2017, Commerce issued a final affirmative countervailing duty determination and final negative critical circumstances determination of certain carbon and alloy steel cut-to-length plate from the Republic of Korea.
  • On April 5, 2017, Commerce issued final results of changed circumstances reviews, and revoked the antidumping duty order and countervailing duty order, in part for certain crystalline silicon photovoltaic products from the People’s Republic of China and from Taiwan.
  • On April 13, 2017, Commerce issued final results of changed circumstances reviews for antidumping duty orders on crystalline silicon photovoltaic cells, whether or not assembled into modules, from the People’s Republic of China and antidumping duty orders on certain crystalline silicon photovoltaic products from the People’s Republic of China.
  • On April 25, 2017, Commerce preliminary determined that counteravailable subsidies are being provided to producers and exporters of certain hardwood plywood products from the People’s Republic of China.
  • On April 26, 2017, Commerce preliminary determined that critical circumstances exist for imports of softwood lumber from certain producers and exporters from Canada.

Sunset Reviews:

  • On April 3, 2017, Commerce automatically initiated the five-year review of the AD/CVD orders for fresh garlic, stilbenic optical brightening agents, and steel nails from the People’s Republic of China, Taiwan, and United Arab Emirates.
  • On April 6, 2017, Commerce issued final results of expedited third sunset reviews of countervailing duty orders for certain cut-to-length carbon-quality steel plate from India, Indonesia, and the Republic of Korea.
  • On April 6, 2017, Commerce issued final results of the expedited fourth sunset review of the antidumping duty order for certain stainless steel wire rods from India.
  • On April 17, 2017, Commerce published notice of continuation of the antidumping duty order for pure magnesium from the People’s Republic of China.
  • On April 24, 2017, Commerce issued final results of the expedited sunset reviews of the antidumping duty orders for certain cut-to-length carbon-quality steel plate from India, Indonesia, and the Republic of Korea.
  • On April 24, 2017, Commerce issued its final results of countervailing duty expedited review of supercalendered paper from Canada.
  • On April 25, 2017, Commerce issued the notice of continuation of antidumping and countervailing duty orders of aluminum extrusions from the People’s Republic of China.

Scope Rulings & Anticircumvention Determinations:

  • No decisions were issued in April 2017

U.S. INTERNATIONAL TRADE COMMISSION

Section 701/731 Proceedings

Investigations

  • On April 19, 2017, the ITC determined that a U.S. industry is materially injured by reason of imports of ferrovanadium from Korea.
  • On April 21, 2017, the ITC determined that there is a reasonable indication that a U.S. Industry is materially inured by reason of imports of silicon metal from Australia, Brazil, and Norway.
  • On April 21, 2017, the ITC determined that there is a reasonable indication that a U.S. industry is materially injured by reason of imports of aluminum foil from China.
  • On April 21, 2017, the ITC determined that a U.S. industry is materially injured by reason of imports of 1-hydroxyethylidene-1, 1-disphosphonic acid (HEDP) from China.

Sunset Review Decisions

  • On April 10, 2017, the ITC voted to expedite its five-year sunset review concerning the antidumping duty order on Fufuryl Alcohol from China.
  • On April 10, 2017, the ITC voted to expedite its five-year sunset review concerning the antidumping duty order on Light-Walled Rectangular Pipe and Tube from Taiwan.
  • On April 27, 2017, the ITC determined that revoking the existing antidumping duty orders on welded ASTM A-312 stainless steel pipe from Korea and Taiwan would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time.

Section 337 Proceedings

  • On April 6, 2017, the ITC voted to institute an investigation of certain non-volatile memory devices and products containing the same.
  • On April 6, 2017, the ITC voted to institute an investigation of certain semiconductor devices and consumer audiovisual products containing the same.
  • On April 11, 2017, the ITC voted to institute an investigation of certain intravascular administration sets and components thereof.
  • On April 12, 2017, the ITC voted to institute an investigation of certain digital cable and satellite products, set-top-boxes, gateways, and components thereof.
  • On April 19, 2017, the ITC voted to institute an investigation of certain dental ceramics, products thereof, and methods of making the same.
  • On April 26, 2017, the ITC voted to institute an investigation of certain LTE wireless communication devices and components thereof.
  • On April 28, 2017, the ITC voted to institute an investigation of certain thermoplastic encapsulated electronic motors, components thereof, and products and vehicles containing the same.
  • On April 28, 2017, the ITC voted to institute an investigation of certain two-way radio equipment and systems, related software, and components thereof.

U.S. BUREAU OF CUSTOMS AND BORDER PROTECTION

  • CBP was authorized via an Executive Order to establish enhanced collection and enforcement of Antidumping and Countervailing Duties and violations of trade and customs laws.

COURT OF INTERNATIONAL TRADE

Summary of Opinions

The Court sustained the ITC’s final affirmative injury determination in the 2001 petition on Honey from Argentina and China.  The key issue in the case is whether the ITC properly evaluated the impact of the suspension agreement in its cumulation and injury determination.  The Court found that the ITC evaluated all evidence before it in its cumulation determination and the Court sustained the ITC’s final injury determination.

The Court sustained in part Commerce’s final determination in the antidumping investigation of steel nails from Taiwan.  The main challenges for the Court’s consisderation were the application of the differential pricing analysis;  the adjustment of transfer prices for raw material inputs; and the use of certain company specific costs/expenses.  The court sustained Commerce’s final determination with respect to all issues except for the case-specific allocation of certain expenses.

The case was an appeal of the 7th administrative review of the AD order on activated carbon from China.  The case centered around the case-specific selection of the surrogate country and specific surrogate values.  The court remanded the matter to revise its findings with respect to the selection of the surrogate country on issues related to economic comparability and significant production.

The case concerns a challenge to the 4th review of the CVD order on citric acid from China.  The court had initially remanded the case for Commerce to reevaluate whether it could make a decision without the use of adverse inferences.  Commerce in its remanded concluded the there was insufficient record evidence whereby it could not make a determination without resorting to adverse facts available.  The court sustained the remand results based upon Commerce’s explanations.

The case was a challenge to the 4th administrative review of diamond sawblades from China.  The key issues related to case-specific concerns arising from the selection of surrogate values and surrogate financial statements.  In addition, the court evaluated the assignment of the China-wide rate to one of the respondents as it did not qualify for a separate rate.  The Court remanded the matter to Commerce to provide additional support and explanations with respect to its determination.

The Court sustained Commerce’s remand issuing customs instructions to collect cash deposits effective the date on which it issued its final scope ruling and not retroactive to the date of the original order.

The court remanded for a second time Commerce’s determination in the administrative review of glycine from China.  The initial remand instructed Commerce to correct serious and fundamental deficiencies in its final results on the grounds that it failed to calculate the most accurate dumping margin possible.  After review, the Court found that Commerce had not sufficiently supported its use of certain surrogate values and thus the matter was remanded for further explanation.

The decision focuses on the final results of review of the AD order on carbon steel standard pipe from Turkey.  The case focused on a single issue of whether Commerce correctly declined to adjust Borusan’s duty drawback adjustment for specific scrap by-products.  Essentially the court found that Commerce had not fully supported its decisions with a full explanation with evidence on the record and remanded the mantter for further explanation.

The case revolved around the issue as to whether a respondent was not afforded sufficient notice to file a separate rate application in an administrative review when it was concurrently participating in a new shipper review where it received a received a zero rate but was not permitted to retain the rate as a result of being pulled back into the China-wide rate at the conclusion of the administrative review.  The new shipper review and administrative review periods overlapped and the single shipment was being reviewed as part of the new shipper review.  The court found that Commerce failed to provide adequate notice to the plaintiff to provide sufficient information of no shipments in the administrative review and remanded the matter to reach a new determination.

OTHER TRADE MATTERS

  • Commerce Secretary Wilbur Ross stated that the Commerce Department is considering whether to proceed with other Section 232 national security trade investigations including potentially aluminum imports which has important national security concerns. (Inside US Trade April 28, 2017 at page 3)
  • Commerce has invited interested parties to comment on the section 232 investigation on whether imports of foreign steel pose a national security threat to the U.S. Comments are to be submitted no later than May 31st and a public hearing will be held on May 24th.

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