Trade Updates for Week of December 7, 2016

United States Court of International Trade


Plaintiff’s Motion for Judgment on Agency Record Denied

In Neo Solar Powerv. United States et al., Court No. 16-88, Slip Op. 16-111 (December 1, 2016), the court reviewed plaintiff Neo Solar Power Corporation (“NSP”)’s motion for judgment on the agency record pursuant to U.S. Court of International Trade Rule 56.1. The case concerned Certain Crystalline Silicon Photovoltaic Products from Taiwan: Antidumping Duty Order, 80 Fed. Reg. 8596, 8596 (Dep’t Commerce Feb. 18, 2015) (“AD Order”).  NSP asserted that Commerce improperly excluded it from the administrative review of that AD order, which covered entries from July 31, 2014, through January 31, 2016, because its request for review was not submitted by February 29, 2016, the last day of the anniversary month of the order.  According to NSP,  it could not timely file its request for a review, because (1) it did not have access to Commerce’s Antidumping and Countervailing Duty Centralized Electronic Service System (“ACCESS”); and (2) a Taiwan holiday prevented delivery of its request for review. The court did not consider these reasons to be extraordinary circumstances, and therefore agreed with Commerce’s decision to deny the request to file for an extension to file the review request.


Plaintiff’s Motion for Summary Judgment was Denied; Defendant’s Cross Motion for Summary Judgment was Granted

In Special Commodities, Inc. v. United States, Court No. 11-91, Slip Op. 16-114 (December 2, 2016), the court considered the classification of seeds of the Pinus koraiensis tree.  After review of dictionary definitions and industry sources, the court agreed with defendant in finding that while Pinus pinea or pignolia nuts are commercially known as “pine nuts,” not all pine nuts are pignolia nuts classifiable under HTS Subheading 0802.90.25, which provides for classification of “Other nuts, fresh or dried, whether or not shelled or peeled: Other: Pignolia: Shelled.”  According to the court, plaintiff failed to establish that Pinus koraiensis nuts were included in the common and commercial term pignolia nuts.  Moreover, there was no established term for pignolia nuts under the Tariff Schedule of the United States (TSUS) or a definition in Customs rulings that supported plaintiff’s contention that Pinus koriansis seeds are pignolia nuts. Accordingly, with regards to the subject entries, seeds of the Pinus koraiensis, were properly classified under HTSUS 0802.90.97 for “Other nuts, fresh or dried, whether or not shelled or peeled: Other: Other: Shelled: Other.”  For all these reasons, the court granted defendant’s cross motion for summary judgment and denied plaintiff’s motion for summary judgment.


Petition for Mandamus Denied

In Fresh Garlic Producers Association et al. v. United States, et al., Court No. 14-180, Slip Op. 16-115 (December 6, 2016), the court considered consolidated plaintiff Shenzhen Xinboda Industrial Co., Ltd.’s (“Xinboda”) Petition for Writ of Mandamus (“Mandamus Petition”), requesting the court to order the U.S. Department of Commerce (“Commerce”) to not reopen the administrative record in the underlying eighteenth annual administrative review of fresh garlic from the People’s Republic of China (“PRC”).  Xinboda did not have a clear and indisputable right to a second remand proceeding to consider new surrogate country candidates, without a reopened record.  Commerce is permitted to reopen the administrative record on remand, unless the court forbids it, and thus there is no indisputable right afforded for Xinboda here. Moreover, Xinoboda has an alternative remedy to wait for the redetermination to challenge Commerce’s findings. The court found that “[w]ere Xinboda to successfully challenge Commerce’s decision to reopen the record after the issuance of the second remand results, Xinboda would not then have suffered any negative consequences other than the burden and expense of participating in the administrative proceedings.” Slip Op. at pg. 10. Thus, the court denied Xinboda’s Mandamus Petition.


Motion to Dismiss Denied

United States v. International Trading Services, LLC and Julio Lorza, concerns the recovery of unpaid duties and penalties assessed pursuant to 19 U.S.C. § 1592, or, alternatively, the recovery of unpaid duties and mandatory accrued interest pursuant to 19 U.S.C. § 1505, for the misclassification of certain entries of sugar.  Court No. 12-00135, Slip Op. 16-112 (December 2, 2016).  Julio Lorza (“Lorza”), the CEO of International Trade Services (“ITS”) moved to dismiss the Complaint against himself for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted.  Specifically, Lorza argued the court lacked subject matter jurisdiction over him because administrative remedies were not exhausted since he was not named on the pre-penalty and penalties notices.  As such, U.S. Customs and Border Protection’s (“CBP”) failure to perfect its claim against him prior to the institution of the action deprived the court of jurisdiction over him and deprived him of due process.  Furthermore, Lorza argued, the complaint lacked factual allegations necessary to state a claim upon which relief can be granted. The court denied Lorza’s motion.

The court held that while Lorza accurately argued that administrative remedies must be exhausted in order for subject matter jurisdiction to exist, such remedies were indeed exhausted.  Looking to the language of § 1592(b), the court found that issuing a pre-penalty and penalty notice that included specific information as required by the statute satisfied the exhaustion requirement.  Furthermore, the court reasoned, case law precedent has held that the complaint in a § 1592 recovery action need not be brought against the same parties named in the administrative proceeding.  The court relied heavily on the Federal Circuit’s opinion in United States v. Prior Products, 793 F. 2d 296 (Fed. Cir. 1986), which upheld the court’s subject matter jurisdiction over individual shareholders in a § 1592 recovery action when the administrative proceedings solely named the corporation.  There, the Federal Circuit reasoned that while the court may assume jurisdiction over any complaint, the issue of the party or parties responsible for payment of the penalty is subject to de novo consideration.  Thus, the failure to name Lorza during the administrative proceedings did not constitute a failure to exhaust administrative remedies, but instead, at most, represented a procedural defect that amounted to harmless error.

Nor did the failure to name Lorza on the pre-penalty or penalty notice deprive him of due process.  The court reasoned that Lorza received, at a minimum, constructive notice of the recovery action and his potential personal liability.  Not only was he the CEO of ITS and someone directly involved in introducing the misclassified merchandise into the United States, he personally confirmed receipt of the penalty notice and payment demand.  The cover letter of the penalty notice stated that Lorza was jointly and severally liable for the penalty.  Lorza had the opportunity to petition for remission or mitigation of the pre-penalty and penalty notice during the years long process, but did not avail himself of that option or attempt to participate whatsoever at the administrative level.

Finally, the court denied Lorza’s motion to dismiss for failure to state a claim, properly construed motion for judgment on the pleadings given that an answer had already been filed.  The court held that the complaint properly alleged one of the elements of a violation under § 1592, negligence, and therefore stated a claim upon which relief can be granted.  


Action Dismissed for Mootness

In Qingdao Barry Flooring Co., Ltd. v. United States, plaintiff on March 2, 2015 commenced an action pursuant to 28 U.S.C. § 1581(c) and, alternatively, § 1581(i), seeking a writ of mandamus to compel the U.S. Department of Commerce (“Commerce”) to conduct a new shipper’s review of Qingdao Barry’s shipment of multilayered wood flooring (“MLWF”) from the People’s Republic of China (“China”).  Court No. 15-00056, Slip Op. 16-113.  Qingdao Barry had filed with Commerce a request for initiation of a new shipper review prior to commencing the subject action; however, Commerce had not taken action on that request.  Upon commencement of the action, the parties entered into consultation and, with an order from the court that Commerce had the authority to initiate and conduct the review, Commerce announced the initiation of a new shipper review of the antidumping duty order on MLWF from China on October 26, 2015.  On June 2, 2016, Commerce published its preliminary determination to rescind the review on the grounds that there was not a bona fide sale of MLWF, and affirmed that conclusion on July 19, 2016.  Plaintiff argued that Commerce failed to comply with the court’s order and with its own statue and regulations.  The court held that the action was moot and therefore dismissed the case for lack of jurisdiction.

The court reasoned that the injury complained of by the plaintiff, Commerce’s failure to initiate and conduct a new shipper review, had been resolved.  Plaintiff’s present allegations, that the new shipper review was not lawfully conducted, was a new complaint, which could only be asserted in an action contesting the final results of the new shipper review.