Trade Court Updates for Week of March 5, 2015

United States Court of International Trade

The Court Sustained Commerce’s Final Remand Results in Polyethylene Terephthalate Film Review

In DuPont Teijin Films China Limited et al. v. United States et al., Court No. 13-229, Slip Op. 15-19 (February 27, 2015), the Court of International Trade sustained Commerce’s remand results.  This court reviewed the U.S. Department of Commerce’s  (“Commerce”) final results in the third antidumping duty administrative review of polyethylene terephthalate (“PET”) film, sheet, and strip from the People’s Republic of China. See DuPont Teijin Films China Ltd. v. United States, 7 F. Supp. 3d 1338 (CIT 2014); Polyethylene Terephthalate Film, Sheet, and Strip From the People’s Republic of China: Final Results of Antidumping Duty Administrative Review; 2010–2011, 78 Fed. Reg. 35,245 (Dep’t Commerce June 12, 2013) (“Final Results”). The court remanded to Commerce for it to reconsider its valuation of DuPont’s recycled PET chip and brokerage and handling issues expenses. Regarding the recycled PET chip, the court held that Commerce’s valuation of DuPont’s recycled PET chip input as virgin PET chip while denying DuPont a by-product offset for the recyclable PET chips produced in the manufacturing process was unreasonable because it resulted in double counting. The court gave Commerce the option of either valuing the recycled PET chip input at zero or providing a by-product offset for the recyclable PET chip produced. Regarding the brokerage and handling expenses, the court held that Commerce’s calculations of DuPont’s customs clearance costs and document preparation expenses were unreasonable because it assumed that these expenses would be based on the weight of a container rather than based on a shipment as a whole. On remand, Commerce granted DuPont a by-product offset for the recyclable PET waste it produces.  Commerce also divided the surrogate values for the document preparation and customs clearance costs by the weight of DuPont’s shipments. DuPont’s dumping margin decreased from 12.80 percent to 4.42 percent. Commerce applied this decrease to Wanhua’s rate as well.  Accordingly, Commerce’s Remand Results complied with the court’s remand order and were supported by substantial evidence, and since no party has objected, the court sustained the results. 

Court Remanded Final Results in Eighth Dumping Review 

In Vinh Hoan Coporation et al. v. United States et al., Court No. 13-156, Slip Op. 15-16, (public version published on February 27, 2015), the court decided USCIT Rule 56.2 motions for judgment on the agency record, challenging the Department of Commerce’s (“Department” or “Commerce”) determination in Certain Frozen Fish Fillets From the Socialist Republic of Vietnam, 78 Fed. Reg. 17,350 (Dep’t Commerce Mar. 21, 2013) (final results of eighth antidumping duty administrative review and ninth new shipper review) (“Final Results”), as amended, 78 Fed. Reg. 29,323 (Dep’t Commerce May 20, 2013) (“Amended Final Results”). Vinh Hoan Corporation (“Vinh Hoan”) commenced this action pursuant to section 516A of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a (2012).  The court consolidated Vinh Hoan’s challenge with actions filed by Vietnam Association of Seafood Exporters and Producers (collectively “VASEP”), Binh An Seafood Joint Stock Company (“Binh An”), Anvifish Joint Stock Company and Vinh Quang Fisheries Corporation (“Anvifish and Vinh Quang”), and Catfish Farmers of America, an association of processors and growers, and individual U.S. catfish processors, America’s Catch, Alabama Catfish Inc. dba Harvest Select Catfish, Inc., Heartland Catfish Company, Magnolia Processing, Inc. dba Pride of Pond, and Simmons Farm Raised Catfish, Inc. (collectively “Catfish Farmers of America”). In addition to the above named parties’ Rule 56.2 motions, Catfish Farmers of America filed a response, as a defendant-intervenor.

First, the court considered Commerce’s methodology in selecting a primary surrogate country as well as Commerce’s analysis of nonfish factors of production, financial statements and whole fish in selecting a primary surrogate country. VASEP argued Commerce’s decision to consider the 2010 GNI data from the OP List, but not to consider 2011 GNI data and 2010 GDP data, and to reject Subsequent Review GNI Lists was contrary to law. The court sustained Commerce’s decisions to disregard the 2010 GDP data, where it has been Commerce’s long standing practice and because GDP data was unreliable as it is derived from two sources, the World Bank and the International Monetary Fund.  Further, the court sustained Commerce’s rejection of Subsequent Review GNI Lists which were considered factual information and were submitted untimely according to Commerce, and it sustained the application of non-fish factors as Vinh Hoan is highly integrated and the largest seller of the subject merchandise.

However, the court found that Commerce’s decision to disregard the 2011 GNI data was contrary to law, where it did not consider such data in determining a primary surrogate country and where Commerce was under obligation to consider all record evidence.  The court further found that the record in this case required Commerce to compare relative economic comparability with the data of the potential surrogate countries. Although Commerce was not required to choose a primary surrogate country that was the most economically comparable, Commerce was required to use the best available information to value the factors of production.  The court therefore remanded the primary surrogate selection back to Commerce.  If Commerce continued to rely on factors other than whole fish to make its primary surrogate country selection, it must explain why Indonesian data for these nonfish FOPs was the best available information.  Moreover, it should explain why the IAS Data was more reliable than the DAM Data in primary surrogate selection.

Second, as to factors of production and Commerce’s analysis of specific surrogate values, the court reserved its decision until after remand and the primary surrogate selection had been revisited by Commerce. The court granted Commerce’s voluntary remand regarding Commerce’s fish oil calculation.

Third, as for Commerce’s treatment of certain sales as consignment sales, the court remanded this decision for Commerce to reconsider its decision to treat all sales to one customer as consignment sales or explain why it is doing so despite record evidence that only some sales to such customers were consignment sales. 

Fourth, the court sustained Commerce’s decision to include sample transactions in its margin calculation where no evidence was provided to support plaintiff’s challenge. 

Finally, the court remanded Commerce’s normal value calculation for Vin Hoan, specifically its refusal to adjust the ratio used to value Vinh Hoan’s FOPs. Catfish Farmers of America demonstrated with record evidence below that “(1) Vinh Hoan’s U.S. sales did not include any glazed sales; and (2) each factor ratio reported by Vinh Hoan was calculated with a denominator that includes glazed weight.”  Commerce did not adequately explain why no adjustment was necessary to make a fair comparison or why it could not make such an adjustment.  For all these reasons, the court remanded the Final Results.

CIT Denies Motion to Strike Summary Judgment Motion in Duty Collection Case

The request of importers and their surety to strike a Summary Judgment motion in a case seeking to collection of duties and penalties was denied, but the Summary Judgment motion was stayed, according to a procedural ruling from the U.S. Court of International Trade. 

In United States v. American Casualty Co. of Reading, PA, Slip Op. 15-20 (March 5, 2015), the defendants objected to a government motion for summary judgment, claiming that the identity of two witnesses whose affidavits were attached to the motion had not previously been disclosed to them, and that the affidavits were intended to prejudice the court. Noting that motions to strike are a drastic and disfavored remedy, the court noted that one of the affiants had not previously been identified to the defendants, and that they should have the opportunity to depose him before being required to respond to the summary judgment motion. The court stayed the motion pending further proceedings. As to the second affiant, the Court found that his identity had been disclosed to the defendants. 

The court stayed the summary judgment motion until after the defendants= pending Motion to dismiss the case is decided. 

CIT Concludes Longstanding Squabble over Bearing Duties

A multi-party dispute over antidumping duties charged on Ball Bearings from Japan was recently put to rest in the U.S. Court of International Trade. In JTEKT Corporation v. United States, the Court reviewed a final remand order dealing with the 16th annual review of the order, and affirmed the Commerce Department's use of Azeroing@ to determine weighted average dumping margins in the review. The court also granted a motion by plaintiff JTEKT to sever its claims from other consolidated claims, so that the company's entries could be liquidated in accordance with the final results of the review. 

 

Note: The information contained in this memorandum is for general information only, and is not intended as advice or counsel regarding any specific situation. If you have an issue relating to the subject matter discussed in this memorandum, you should consult with counsel or your customs advisers concerning the proper course of action to be followed in your case.

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