Trade Courts Update for the Week of October 28, 2015

United States Court of International Trade

 Remand Results Affirmed

The court in Wheatland Tube Company v. United States, Court No. 12-296, Slip Op. 15-118 (October 21, 2015) sustained the Final Redetermination Pursuant to a Court Remand in the circular welded pipe imported from China investigation.  Additionally, the court in MacLean-Fog Co. v. United States et al., Court No. 11-209, Slip Op. 15-119 (October 23, 2015) affirmed the Final Second Results of Redetermination in the aluminum extrusions imported from the People’s Republic of China countervailing duty investigation. 

 

Cross Motions for Summary Judgment Granted in Part

In United States v. American Home Assurance Company, Court No. 10-179, Slip Op. 15-120 (October 28, 2015), the court granted in part both cross-motions for summary judgment of plaintiff, the United States (“plaintiff” or the “United States”), on behalf of the United States Customs and Border Protection Agency (“Customs”), and defendant American Home Assurance Company (“defendant” or “AHAC”). United States sought to recover on a continuous transaction bond, issued by AHAC to secure unpaid duties and interest on freshwater crawfish tail meat imported into the United States from the People’s Republic of China (“PRC”). In January 2001, AHAC, a company authorized to issue surety bonds, entered into a continuous transaction bond3 with importer Grand Nova International Inc. (“Grand Nova”) to  secure duties owed on the entry of its imported merchandise.  When Grand Nova entered 23 entries of freshwater crawfish tail meat form the PRC subject to the order in Freshwater Crawfish Tail Meat from the PRC, 62 Fed. Reg. 48,218 (Dep’t of Commerce Sept. 15, 1997) (notice of amendment to final determination of sales at less than fair value and antidumping duty order) (“Order”), and defaulted on payment of duties owed, the government after attempts to collect, filed this suit.

Twenty-two of the entries were exported by Qingdao Zhengri Seafood Co., Ltd. (“Qingdao Zhengri”) and the other entry was exported by Yancheng Yaou Seafood Co., Ltd. (“Yancheng Yaou”). On May 21, 2003, Qingdao Zhengri, Yancheng Yaou, and a third exporter, China Kingdom Import & Export Co., Ltd. (“China Kingdom”), whose merchandise was subject to the Final Results, brought suit in this Court, challenging the PRC wide rates of 223% they were assigned by Commerce. See China Kingdom Imp. & Exp. Co.v. United States (China Kingdom I), 31 CIT 1329, 1330, 507 F. Supp. 2d 1337, 1340 (2007). On September 4, 2007, the Court sustained the PRC-wide rate of 223.01% assigned to Qingdao Zhengri and Yancheng Yaou in the Final Results. See China Kingdom, 31 CIT at 1366, 507 F. Supp. 2d at 1370–71. The Court also remanded to Commerce China Kingdom’s rate, directing the Department to calculate and assign a new antidumping duty rate for that company.  See id. at 1366, 507 F. Supp. 2d at 1370–71. After this decision, no appeal to the Federal Circuit was taken.  On January 23, 2009, following the entry of judgment in China Kingdom, Customs liquidated Yancheng Yaou’s entry of freshwater crawfish tail meat, and on April 3, 2009, Customs liquidated the other twenty-two entries exported by Qingdao Zhengri.

AHAC argued that Customs did not timely liquidate the entries, because Customs failed to liquidate the entries within six months of the expiration of the period during which an appeal from the September 4, 2007 Opinion and Order could have been taken to the Federal Circuit (i.e., on November 3, 2007).  Thus, according to AHAC, a deemed liquidation occurred by operation of law under 1504(d) in May of 2009 as a result of the failure to liquidate. However, the court held that a proper liquidation occurred on April 3, 2009 where under 1504(d) Customs was not notified of the lifting of the suspension to liquidate until December 8, 2008, when the Amended Final Results were published in the Federal Register. The six month period then begun to run, and the April 3, 2009 date for liquidation of the entries was thus timely.

As for AHAC’s argument that another company Lincoln General, who provided Grand Nova with single transaction bonds, more specifically covered the antidumping liability, the court made no such finding.  The court held that it was proper for the government to seek recovery first from AHAC without demanding payment from Lincoln General.  The court also held that the government could under statute (19 U.S.C. § 580 and 19 U.S.C. § 1505(d)) collect from AHAC both prejudgment and post liquidation interest for the duty owed by Grand Nova.  However, because the government fully recovered what it was owed under applicable statutes, no equitable prejudgment interest could be awarded.