Trade Courts Updates for Week of May 20, 2015

United States Court of International Trade

Court Judgment Enforced

In GPX International Tire Corporation et al. v. United States et al., Court No. 08-285, Slip Op. 15-46 (May 18, 2015), consolidated plaintiffs Tianjin United Tire & Rubber International Co., Ltd. (“TUTRIC”), moved for enforcement of the court’s judgment entered October 30, 2013.  TUTRIC argued that under either the court’s inherent power to enforce its judgments or through a writ of mandamus, the court should compel defendant, the United States, by and through its executive administrative agency, Commerce, to issue a corrected notice required by 19 U.S.C. § 1516a (2012) (also referred to as a “Timken Notice”).   TUTRIC asked that the Timken Notice instruct U.S. Customs and Border Protection (“CBP”) to require cash deposits for estimated countervailing duties (“CVD”) at 3.93% for TUTRIC’s merchandise subject to the CVD order on Off-the-Road Tires from the People’s Republic of China, Certain New Pneumatic Off-the-Road Tires From the People’s Republic of China: Countervailing Duty Order, 73 Fed. Reg. 51,627 (Dep’t Commerce Sept. 4, 2008) (“OTR CVD Order”), and compelling CBP to refund excess cash deposits collected after October 30, 2013.

However, the government argued that under the Final Results of Redetermination Pursuant to Remand, ECF No. 394 (“Remand Results”), sustained by the court, Commerce properly ordered CBP to collect cash deposits at the 6.85% rate set in the intervening Implementation of Determinations Under Section 129 of the Uruguay Round Agreements Act: Certain New Pneumatic Off-the-Road Tires; Circular Welded Carbon Quality Steel Pipe; Laminated Woven Sacks; and Light-Walled Rectangular Pipe and Tube From the People’s Republic of China, 77 Fed. Reg. 52,683 (Dep’t Commerce Aug. 30, 2012) (“Section 129 Implementation”), for all entries entered or withdrawn from the warehouse for consumption on or after August 21, 2012.  According to the government and defendant intervenor Titan Tire Corporation (“Titan”), because TUTRIC did not challenge the cash deposit rate in the 129 proceeding, it waived its arguments as to that rate.

However, the court disagreed. There was nothing in section 129 or the Statement of Administrative Action (SAA) accompanying the Uruguay Round Agreements Act that would suggest that plaintiffs would waive arguments in litigation if not raised in a section 129 proceeding. Commerce’s past practices indicated that Section 129 proceedings are limited to the issues raised before the WTO. Such a position runs counter to prior agency position, giving TUTRIC no notice that they were to bring all claims, even those non-WTO, before a 129 proceeding.  The court held, that even if TUTRIC had followed the government’s suggestion here that it raise the issue in the Section 129 proceeding, TUTRIC likely would have ended up asking the CIT for the exact same relief it was seeking.

Moreover, the court believed that the same 3.93% cash deposit rate would have been granted to TUTRIC, so the government and Titan would not be prejudiced by applying that rate. While the government and Titan argue, that TUTRIC should have raised these issues in an administrative review, a review would not be an adequate remedy considering the facts at issue.  Finally, the court has authority to interpret its own decisions, and as such found that the rate applied to TUTRIC should have been 3.93% and that TUTRIC’s motion be granted.