Trade Courts Update for Week of April 20, 2016

United States Court of International Trade


Court Remanded Findings in Final Determination

In Itochu Building Products, Co., Inc. v. United States, Court No. 15-9, Slip Op. 16-37 (April 15, 2016), plaintiff, Itochu Building Products Company, Inc. (“Plaintiff” or “Itochu”) challenged the final determination of the U.S. Department of Commerce (“Defendant” or “Commerce”) in the first administrative review of the antidumping duty order on certain steel nails from the United Arab Emirates (UAE) (“AD order”). Plaintiff claims that Commerce should not have found an affiliation between Dubai Wire FZE (“Dubai Wire”) and Itochu, and, alternatively, that Commerce should not have based normal value on third country sales to Canada and should have used constructed value instead.

Plaintiff did not contest the existence of the joint venture or that Itochu and Dubai Wire both were legally in a position to exert control over PSW. However, it did contest the assertion that Itochu had control over the production, pricing, or cost of nails produced by Dubai Wire. Itochu claimed that the record demonstrated that Dubai Wire dealt with Itochu in an arms-length manner, both before and after the formation of the joint-venture, and that the sales process between the two companies, including prices paid for merchandise, was no different than the sales process between IBP, a part of the Itochu group of companies, and its other vendors.

Commerce’s regulation required Commerce to find that the relationship between Itochu and Dubai Wire has the potential to impact decisions concerning the production, pricing, or cost of the subject merchandise or the foreign like product.  It did not do so, and has been asked by the court on remand to explain how the record supports its finding.   For these reasons, the Court remanded the decision back to Commerce.

Additionally, the court deferred ruling on Plaintiff’s alternative argument regarding application of sales to Canada in normal value calculation, pending the remand determination.


Final Determination Sustained

Before the court in Districargo, Inc. v. United States, Court No. 14-208, Slip Op. 16-38 (April 20, 2016), was plaintiff Districargo Inc.’s USCIT Rule 56.2 motion for judgment on the agency record.  The applicable antidumping and countervailing duty Orders cover “aluminum extrusions,” which are “shapes and forms, produced by an extrusion process, made from [certain] aluminum alloys.” AD Order, 76 Fed. Reg. at 30,650; CVD Order, 76 Fed. Reg. at 30,653. The scope of the applicable Orders “excludes finished goods containing aluminum extrusions that are entered unassembled in a ‘finished goods kit’” (“exclusion”). AD Order, 76 Fed. Reg. at 30,651; CVD Order, 76 Fed. Reg. at 30,654. A “finished goods kit” is a “packaged combination of parts that contains, at the time of importation, all of the necessary parts to fully assemble a final finished good and requires no further finishing or fabrication, such as cutting or punching, and is assembled ‘as is’ into a finished product.” AD Order, 76 Fed. Reg. at 30,651; CVD Order, 76 Fed. Reg. at 30,654.  Because plaintiff’s exhibition booth kits were rearranged into kits after importation and, analogizing this case to its prior cases, Commerce concluded that the exhibition booth kits are not “finished goods kits” as defined in the Orders.  The court found this decision to be supported by substantial evidence. Because the goods did not fit into the exclusion, the court declined to find whether the subject goods fell into the exception to the exclusion.


Final Scope Determination Sustained

In Circle Glass Company v. United States, Court No. 15-2, Slip Op. 16-39 (April 20, 2015), the court considered the scope of the antidumping and countervailing duty orders on aluminum extrusions from the People’s Republic of China.  At issue was whether the subject patio screen door kit without a screen was a finished good, as the scope of the orders excludes “finished goods containing aluminum extrusions that are entered unassembled in a ‘finished goods kit.’”  Plaintiff argued that its merchandise was a patio screen door kit without the “screen” and that such a product was a “final finished good” excluded from the scope of the Orders. Plaintiff took great care never to describe its product as a door frame, always maintaining that its product is a patio screen door just without the screen. However, like Commerce, the court did not agree with plaintiff.  Commerce reasonably explained that plaintiff’s “patio door kit,” using only the parts available upon importation, essentially assembled into an empty frame made of extruded aluminum, not into a finished door. For this reason, the court sustained the scope determination.