Trade Updates for Week of March 15, 2017

United States Court of International Trade


Motion to Dismiss Granted

Before the Court in American Furniture Manufacturers Committee for Legal Trade et al. v. United States, Court No. 16-70, Slip Op. 17-25 (March 13, 2017), was defendant United States (“the government”)’s motion to dismiss a complaint filed by plaintiffs American Furniture Manufacturers Committee for Legal Trade and Vaughan-Bassett Furniture Company, Inc. (collectively, “AFMC”), for lack of subject-matter jurisdiction pursuant to U.S. Court of International Trade Rule 12(b)(1).  AFMC contested the Final Results of the tenth administrative review of Commerce, claiming in essence that Commerce failed to fully investigate AFMC’s evasion allegations, and that Commerce failed to suggest that actions be taken by Customs as a result.  Moreover, Commerce did not address Shanghai Jian Pu Import & Export Co., Ltd.’s(“Jian Pu”) failure to cooperate.

In the review, Commerce selected Jian Pu as the sole mandatory respondent because it was the only respondent for which a request for review had not been withdrawn and Jian Pu had provided the information required by Commerce to be considered for status separate from the PRC-wide entity.  After reviewing the evidence, Commerce determined that Jian Pu was part of the PRC-wide entity because it did “not satisfy the criteria demonstrating an absence of de facto government control over export activities” as the government of the PRC has a “significant ownership interest in Jian Pu,” and therefore, applied a PRC-wide rate of 216.01% to Jian Pu’s exports.

The Court held that no action by Commerce gives rise to AFMC’s alleged injury of lost sales due to duty evasion, where Commerce found that Jian Pu was subject to the PRC wide rate of 216% and accomplished its obligations under the statute to review each respondent and assess the proper rate. According to the Court there is no other remedy to be afforded by AFMC where a party lacks “standing to challenge a subsidiary finding in an administrative determination in which it prevailed on the merits.”  Slip Op. pg. 7 citing Cámara Nacional de las Industrias Azucarera y Alcoholera v. United States, 118 F. Supp. 3d 1360, 1365 (CIT 2015). Moreover, the “ ‘determinative or coercive effect’ of Commerce investigating the allegations is not the issuance of penalties by Customs.”  Slip Op. pg.  7.  Therefore, the Court found that it lacked subject matter jurisdiction over AFMC’s complaint.