Trade Courts Update for Week of October 21, 2015

United States Court of International Trade

Remand Ordered for Second Time

In Beijing Tianhai Industry Co., Ltd. v. United States, Court No. 12-203, Slip Op 15-114,  the court reviewed the results of a remand order.  In Beijing Tianhai Industry Co. v. United States, 38 CIT __, 7 F. Supp. 3d 1318 (2014) (“BTIC I”), the court remanded to the United States Department of Commerce (“Commerce” or the “Department”) its final determination in the antidumping duty investigation of high pressure steel cylinders From the People’s Republic of China (“PRC”). See High Pressure Steel Cylinders from the PRC, 77 Fed. Reg. 26,739 (Dep’t of Commerce May 7, 2012) (final determination of sales at less than fair value), and accompanying Issues and Decision Memorandum (“Issues & Dec. Mem.”) (collectively, “Final Determination) On remand, Commerce was directed to further explain the use of the average-to-transaction (“A-T”) methodology for determining the presence of targeted dumping and for calculating plaintiff’s dumping margin.

While Commerce explained why it could not use the transaction to transaction method, it did not fully explain its reasons for failing to use the average-to-transaction method, which “compar[es] the weighted average of the normal values to the weighted average of the export prices (and constructed export prices) for comparable merchandise.” 19 U.S.C. § 1677f-1(d)(1)(A)(i). For purposes of not applying the transaction-to-transaction (“T-T”) method, Commerce explained that there were no “corresponding home market or third country sales database that would allow [the Department] to compare [Tianhai’s] individual home market or third country transactions to its individual U.S. sales transactions.” Thus, no T-T comparison was possible.  As for the A-A method, Commerce simply stated that because it could not find targeted dumping using the A-A method, it used the A-T method.  This explanation was unsatisfactory, and therefore the Court remanded the results again for further explanation. The court stated, “The statute requires that the Department explain why A-A (or T-T) cannot take into account the pattern of pricing differences “among purchasers, regions, or periods of time” before it may proceed to using the A-T methodology. See 19 U.S.C. § 1677f-1(d)(1)(B). Here, Commerce states a fact when it says that it finds substantial dumping using A-T and not when using A-A, but that fact alone does not explain why A-A cannot account for the differences.” Slip Op, pg. 14. 

As for zeroing and alternate explanations for an observed price pattern, the court affirmed Commerce’s determinations. Finally, assuming Commerce may explain A-T methodology, its application is acceptable despites the small number of Tianhai’s targeted sales. 


Defendant’s Motion to Dismiss Granted

In Cámara Nacional de las Industrias Azucarera y Alcoholera v. United States, Court No. 15-123, Slip Op. 15-115 (October 16, 2015), the court granted Defendant United States’ (“Defendant”) motion to dismiss finding injury-in-fact upon which remedy maybe granted.  Plaintiff Cámara Nacional de las Industrias Azucarera y Alcoholera (“Plaintiff” or “Mexican Sugar Chamber”) opposed the motion. Plaintiff brought this action for judicial review of the United States International Trade Commission’s (“ITC” or “Commission”) decision that domestic sugar producers Imperial Sugar Company (“Imperial”) and AmCane Sugar LLC (“AmCane”) had standing to request review of suspension agreements pursuant to 19 U.S.C. §§ 1671c(h),1673c(h). Mexican Sugar Chamber is an association with a majority of its members consisting of Mexican sugar producers. The Mexican Sugar Chamber id a party to the ITC proceeding, which is the subject of this action.  On April 17, 2014, the United States Department of Commerce (“Commerce”) initiated antidumping and countervailing duty (“AD” and “CVD,” respectively) investigations of sugar imported from Mexico.  Even though the ITC found a reasonable indication of material injury because of the imports, and Commerce made affirmative determinations of antidumping and countervailing duty, the United States, the Mexican government, and the Mexican sugar industry initialed proposed agreements suspending the AD and CVD investigations. The final Suspension Agreements were signed on December 19, 2014, and Commerce suspended the AD and CVD investigations accordingly.

On January 8, 2015, Imperial and AmCane petitioned the ITC to review the suspension agreements pursuant to 19 U.S.C. §§ 1671c(h) and 1673c(h) and the ITC subsequently initiated the requested review. The ITC determined that Imperial and AmCane were “interested parties who were parties to the underlying investigations at the time the petitions were filed, and consequently are appropriate petitioning parties.” However, the Mexican Sugar Chamber participated in the reviews and opposed Imperial and AmCane’s petitions, arguing that the Suspension Agreements eliminated the injurious effect of subject imports and should remain in place. While the ITC affirmed its decision that both Imperial and AmCane were interested parties, it agreed with Mexican Sugar Chamber that the suspension agreement eliminated the injurious effect of subject imports.  All parties then separately filed suit.  Imperial and AmCane argued against the determination regarding the injurious effect of the suspension agreement; and the Mexican Sugar Chamber argued that AmCane and Imperial lacked standing to seek review of the agreement.  Specifically, the Mexican Sugar Chamber contends that the determination was unsupported by substantial evidence and otherwise not in accordance with law because, it alleges, Imperial and AmCane were not “parties to the investigations” and thus were not “proper petitioning parties” within the meaning of the applicable statutes.

The court ruled on Defendant’s motion to dismiss and found that plaintiff could not provide any substantial injury-in-fact sufficient to establish constitutional standing. Plaintiff contended, however, that it suffered an injury-in-fact because of the “uncertainty” surrounding the validity of the suspension agreements created by the review and pending appeal. However, the court held that such uncertainty did not establish injury-in-fact for standing purposes, where injury must be actual and imminent. For this reason, the court granted Defendant’s motion.