August Trade Law Update: Court Decisions
On August 1, 2019, the CIT remanded Commerce’s remand redetermination in the administrative review of carbon and certain alloy steel wire rod from Mexico. The court found that Commerce’s remand results did not comply with the court’s order and the decision by Commerce to apply a 40.52% AFA-rate to Plaintiff Deacero is unsupported by substantial evidence.
On August 1, 2019, the court sustained Commerce’s remand redetermination in the first administrative review of steel concrete reinforcing bar from Mexico. The CIT found that Commerce’s decision not to collapse six non-producing fixed asset owning companies on remand complied with the court’s order and was supported by substantial evidence. Additionally, Commerce’s reliance on the cost experiences of the collapsed fixed asset owners to value the non-collapsed companies and decision not to apply total or partial facts available with an adverse inference to the respondent were sustained.
On August 2, 2019, the CIT sustained Commerce’s final negative determination in the countervailing duty investigation of citric acid and certain citrate salts from Thailand. The CIT concluded that Commerce’s determination was supported by substantial evidence and in accordance with the law because the record was “replete” with documents demonstrating that the Respondents’ machinery “originated from China.” Additionally, Commerce properly demonstrated that the imported machinery into Thailand would have a zero duty rate applied whether it was under Thailand’s Investment Promotion Act or the ASEAN-China FTA.
On August 2, 2019, the CIT sustained Commerce’s redetermination upon remand in the third administrative review in the antidumping duty order on large power transformers from the Republic of Korea. On remand, Commerce reconsidered its findings of Plaintiff Hyundai Heavy Industries’ (“HHI”) misreported costs and prices for accessories. Commerce determined that HHI had properly reported accessories consistent with the scope of the issued antidumping duty order. The court sustained the rest of Commerce’s remand results on the grounds that HHI had left sufficient enough gaps in their questionnaires and the documentation they provided. What Plaintiff HHI deemed necessary and sufficient was not recognized by the CIT and for those reasons the CIT sustained the remand results.
On August 6, 2019, the CIT sustained, in part, and remanded Commerce’s final determination in the antidumping duty investigation of certain carbon and alloy steel cut-to-length plate from Taiwan. The Court found that Commerce had made an error when it based part of its difference-in-merchandise (“DIFMER”) analysis on AFA-adjusted data. Because of the error, the CIT remanded the issue back to Commerce; however the remaining issues are sustained on the grounds that Plaintiff China Steel Corp’s arguments lack merit.
On August 8, 2019, the CIT sustained Commerce’s determinations in the administrative review of the countervailing duty order on steel concrete reinforcing bar (rebar) from the Republic of Turkey. Upon review of its order finding a countervailable subsidy for the provision of natural gas to Turkish rebar producers, Commerce calculated a CVD rate using only Azerbaijani domestic prices because they represented the most reliable world market price on the record with an inflow pipeline connection to Turkey. The CIT concluded that the record supports the Department’s findings and the court finds Commerce’s treatment of prices on the record to be reasonable.
On August 8, 2019, the CIT denied the Defendant’s motion to dismiss for lack of subject-matter jurisdiction and granted Plaintiff Oman Fasteners’ unopposed motion to consolidate in the second administrative review of the antidumping duty order on certain steel nails from the Sultanate of Oman.
On August 15, 2019, the CIT granted Commerce’s request for a remand to reassess its VAT calculation and sustained Commerce’s determination on all other present issues in the antidumping duty investigation on aluminum foil from the People’s Republic of China. The CIT found that the methodology that Commerce used for its VAT calculation was incorrect and granted Commerce’s request for remand.
On August 19, 2019, the CIT granted the defendant’s motion to dismiss for lack of subject matter jurisdiction in the antidumping duty case of tapered roller bearings from the People’s Republic of China. The court concluded that because jurisdiction could have been invoked under 28 U.S.C. §1581(c), residual jurisdiction under 28 U.S.C. § 1581(i) is not available. Moreover, although Plaintiff Wanxiang America Corporation contended otherwise, the Commerce guidance to CBP is not a reviewable Administrative Procedure Act (“APA”) final agency action. For those reasons, the court granted the Government’s motion to dismiss for lack of subject matter jurisdiction.
On August 20, 2019, the CIT granted Plaintiff Trendium Pool Products’ motion for judgment on the agency record in the scope ruling case of finished pool kits and pool walls from Canada. The CIT found that Plaintiff Trendium’s pool products do not fit within the plain language of the scope order. Additionally, Commerce’s decision was not in accordance with the law because Trendium’s products were never considered as part of the ITC’s injury analysis.
Court of Appeals for the Federal Circuit
On August 7, 2019, appellants Juancheng Kangtai Chemical Co., Ltd. (“Kangtai Chemical”) and NAC Group Limited (“NAC”) (together, “Kangtai”) appealed from the opinion and order of the U.S. Court of International Trade (“CIT”) dismissing its complaint. The CIT held that it lacked jurisdiction under 28 U.S.C. § 1581(i) (2012) to consider the three counts raised in Kangtai’s complaint relating to certain antidumping duties. The dispute arose over certain entries of chlorinated isocyanurates from the People’s Republic of China. The CIT dismissed the three counts of the complaint for lack of jurisdiction, explaining that the focus of Kangtai’s complaint aimed to challenge Commerce’s evaluation of sales in the ninth administrative review (“AR9”) and entries in tenth administrative review (“AR10”), a claim properly arising out of § 1581(c). According to the CIT, the complaint alleges “that Commerce imposed a liquidation rate that improperly considered already reported sales and entries.” The CIT rejected Kangtai’s challenge “that the sales made during the ninth POR—and considered in AR 9—and then entered during the tenth POR, should have been assigned the AR 9 rate but were improperly liquidated at the AR 10 rate,” reasoning instead that “those eighteen entries went unreported in AR 10, even though they were entered during [the tenth POR]” based on Kangtai’s failure to report them after being directed to do so by Commerce. The CIT further determined that a remedy under § 1581(c) was not manifestly inadequate because Kangtai was “on notice” that duties would be assessed against its entries based on language in the AR 9 Final Results and could have filed “a complaint challenging the results of AR 9.”