Trade Updates for Week of November 23, 2016

United States Court of International Trade

 

Remand Results Sustained in Part and Remanded in Part

Before the court in Calgon Carbon Corporation & Cabot Norit Americas, Inc. v. United States, Court No. 14-326, Slip Op. 16-107 (November 18, 2016),  was the Department of Commerce’s (“Commerce”) Final Results of Redetermination Pursuant to Court Remand, ECF No. 97 (“Remand Results”), concerning the sixth annual administrative review of the antidumping (“AD”) duty order on certain activated carbon from the People’s Republic of China (“PRC”). See Notice of Antidumping Duty Order: Certain Activated Carbon from the People’s Republic of China, 72 Fed. Reg. 20,988, 20,988 (Dep’t Commerce Apr. 27, 2007). The court previously remanded Commerce’s selection of a surrogate value (“SV”) for anthracite coal and Commerce’s assignment of an all-others rate to Shanxi DMD Corporation (“Shanxi DMD”). Under protest and as part of the remand,  Commerce chose not to put the previous review (POR5-contemporaneous) Philippine GTA data on the record for purposes of SV for anthracite coal, but rather chose to examine thecurrent review’s (POR6-contemporaneous)  GTA data from Thailand, South Africa, Ukraine, Colombia, and Indonesia, and further concluded that all but the Indonesian data were reliable. Moreover, Commerce determined that the four remaining countries had data of “equal reliability.”  As for the Shanxi DMD rate, under protest, Commerce calculated a rate for Shanxi DMD at $0.51 per kilogram. “Specifically, [Commerce] assigned Shanxi DMD a rate calculated using the ranged total U.S. sales quantities from the public versions of the submissions from the individually-examined respondents with weighted-average dumping margins that are not zero or de minimis. . . .” Slip Op., pg. 8. 

The court found that Commerce properly rejected the POR-5 Contemporaneous Philippine GTA data, since it was required to evaluate the propriety of record evidence containing POR-6 Contemporaneous data, before it could consider other non-fairly equal data. Moreover, the U.S. data was rejected as a benchmark or potential SV for anthracite coal, because the U.S. is not at the same economic level as the PRC, where U.S.’s GNI is ten times higher than the PRC.

The court also found substantial evidence that the POR6-contemporaneous Thai GTA data met Commerce’s SV selection criteria and were otherwise reliable. However, in explaining its decision to select Thai GTA because it is the most significant producer of anthracite coal, Commerce has failed to explain, why significant production’s ability to encompass broad-based demand outweighs the representativeness associated with broader market averages. Commerce could have used import value to make that determination.  Substantial evidence review “requires Commerce to examine the record and articulate a satisfactory explanation for its action.” Slip Op. pg. 26 citing Bestpak, 716 F.3d at 1378.

Thus for these reasons, the court remanded Commerce’s explanation of selection methodology and sustained all other decisions made during the remand.

 

Motion to Dismiss Granted

In Jiangsu Tiangong Tools Co. v. United States, Court No. 16-140, Slip Op. 16-106 (November 17, 2016), plaintiff Jiangsu Tiangong Tools Company Limited (“Plaintiff”) brought this action pursuant to 28 U.S.C. § 1581(i)(4) (2012)1 for judicial review of several decisions made by the U.S. Department of Commerce (“Commerce”) during an ongoing antidumping investigation into imports of certain carbon and alloy steel cut-to-length plate from the People’s Republic of China (“PRC”). Plaintiff’s Complaint alleges that Commerce’s decisions to reject Plaintiff’s Quantity and Value (“Q&V”) questionnaire response, separate rate application, voluntary questionnaire responses, and request for individual examination were arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with the law.  However, because plaintiff’s responses were untimely, Commerce rejected the responses, and the only available remedy would be to contest a final determination that results in an antidumping duty order under 28 U.S.C. 1581(c). Section 1581(c) is not manifestly inadequate in this case to permit jurisdiction under section 1581(i)(4), where allegations of financial harm do not establish jurisdiction under section 1581(i)(4) and full relief may be sought under section 1581(c).  For these reasons the case was dismissed.

 

 

United States Court of Appeals for the Federal Circuit

 

Specialized Bulbs Used in Fire Sprinkler and Water Heater Systems Properly Classified as “Articles of Glass”

Glass bulbs containing a tube filled with liquid and an air bubble, and used in fire sprinkler systems and water heaters, were properly classified as “Articles of glass” under Harmonized Tariff Schedule Heading 7020, according to the Court of Appeals for the Federal Circuit (CAFC).

In Tyco Fire Products, L.P. v. United States, No. 2015-1968, 1969 (November 18, 2016), the CAFC upheld a Court of International Trade decision which classified the bulbs as articles of glass, and rejected the importer’s proffered classification under subheading 8424.90.90 as “other parts” of liquid dispersing machinery, fire extinguishers and similar products. The bulbs were designed so that when exposed to heat, the liquid-filled glass tube would shatter, actuating a valve.

The CAFC ruled that the CIT had properly characterized the bulbs as “articles of glass”, and also that the CIT had properly applied an exclusionary note which precluded glass items having technical uses from being classified in HTS Chapter 84.  It rejected Tyco’s arguments, based on the Explanatory Notes to Chapter 84, that the merchandise consisted of glass combined with a “high proportion” of other materials, and could therefore be treated as something other than glass. The liquid component in the bulbs accounted for only about 31% of weight, which the Court did not consider a “high proportion”. The court generally considered 50% or more to be a high proportion, although it said this was not a hard and fast rule.