Trade Updates for Week of April 19, 2017

United States Court of International Trade

 

Defendant United States’ Motion for Summary Judgment Denied

In Irwin Industrial Tool Company v. the United States, Court No. 15-00285, Slip Op. 17-41(April 12, 2017), plaintiff, Irwin, challenged the United States Customs and Border Protection (“Customs”) HTSUS classification of hand tools imported into the United States.  Defendant, the United States moved pursuant to USCIT Rule 56(a) for summary judgment in their favor.  There were four types of tools at issue in this case, large jaw locking pliers, curved jaw locking pliers, long nose locking pliers with wire cutter, and curved jaw locking pliers with wire cutter. When the goods were imported, Customs liquidated them under Harmonized Tariff Schedule of the United States (HTSUS) subheading 8204.12.00, Hand-operated spanners and wrenches (including torque meter wrenches but not including tap wrenches); socket wrenches, with or without handles, drives or extensions; base metal parts thereof: Hand-operated spanners and wrenches, and parts thereof: Adjustable, and parts thereof, with a duty rate of 9% ad valorem.

Plaintiff believed that the goods are properly classifiable under subheading 8203.20.60, which provides for Files, rasps, pliers (including cutting pliers), pincers, tweezers, metal cutting shears, pipe cutters, bolt cutters, perforating punches and similar hand tools, and base metal parts thereof: Pliers (including cutting pliers), pincers, tweezers and similar tools, and parts thereof at 12 cents per a dozen plus 5.5% ad valorem.  In the alternative, plaintiff believes the subject pliers are classified under HTS Subheading or 8205.70.0060,  which provides for Handtools (including glass cutters) not elsewhere specified or included; blow torches and similar self-contained torches; vises, clamps and the like, other than accessories for and parts of machine tools; anvils; portable forges; hand- or pedal-operated grinding wheels with frameworks; base metal parts thereof: Vises, clamps and the like, and parts thereof: Vises: Other, dutiable at 5% ad valorem.  For the following reasons, the Court denied the defendant’s motion for summary judgment.

The Court held that the United States did not prove as a matter of law that the tools at issue are classifiable under 8204.12.00. HTSUS heading 8204 applies to various kinds of wrenches. In determining the common meaning of wrenches, the Court looked at several dictionaries, scientific journals, safety aides, and a mechanical engineering journal for help. The Court held that the use of wrench in the HTSUS refers to “a hand tool composed of a head with jaws or sockets having surfaces adapted to snugly or exactly fit and engage the head of a fastener (such as a bolt-head or nut) and a frame with a singular handle with which to leverage hand pressure to turn the fastener without damaging the fastener’s head.” Slip Op., pg. 7.  The Court said that the defendant had not proved the four types of tools at issue fit into this definition and that the defendant’s reliance on a decision regarding the old TSUS was not applicable to the Harmonized schedule. As a result, the United States was not able to convince the Court to grant summary judgment.

The Court used a similar methodology, looking to dictionaries and trade journals, to analyze the possible classifications that the plaintiff put forward. The Court found that under subheading 8203.20.6030 pliers“refers to a versatile hand tool with two handles and two jaws that are flat or serrated and are on a pivot, which must be squeezed together to enable the tool to grasp an object.” Slip Op, pg. 21. The Court also found that under Subheading 8205.70.0060vises, clamps and the like refer“to tools with a frame and two opposing jaws, at least one of which is adjustable, which are tightened together with a screw, lever, or thumbnut, to press firmly on an object and thereby hold the object securely in place while the user is working “.  The Court said it has “determined that the relevant tariff terms are defined in a manner that would suggest that the subject merchandise is classifiable within one of the plaintiff’s preferred terms.” Slip Op., pg. 24. However, since the plaintiff has not filed for summary judgment, the Court may not make a firm determination for classification purposes.

 

Court Sustained Remand Redetermination

In Davis Wire Corporation and Insteel Wire Products Company v. United States, Court No. 14-131 (April 13, 2017), plaintiffs Davis Wire Corporation and Insteel Wire Products Company contested a negative less-than-fair-value determination (“Final Determination”) issued by the International Trade Administration, U.S. Department of Commerce (“Commerce” or the “Department”) following an antidumping duty investigation of prestressed concrete steel tie wire (“PC tie wire”) from Thailand. Final Determination of Sales at Not Less than Fair Value: Prestressed Concrete Steel Rail Tie Wire from Thailand, 79 Fed. Reg. 25,574 (Int’l Trade Admin. May 5, 2014) (“Final Determination”). In the Final Determination, Commerce calculated a 0.00% weighted-average dumping margin for Siam Industrial Wire Company, Ltd. (“SIW”). Because SIW was the sole exporter/producer investigated, Commerce terminated the investigation without issuing an antidumping duty order.

Plaintiffs had argued that certain wire costs were not included in SIW’s costs of production.  On remand, Commerce found that “wire rod used in the production of PC tie wire was also used to manufacture PC strand” and that “[b]ased on this evidence, the identical raw materials (i.e., grade 82B 13 mm wire rod held in inventory in the PC Strand division) should also be included as part of the weighted-average raw materials consumption cost in the cost of production (COP) calculation, in accordance with the Department’s normal practice.” Slip Op. pg. 5.  Commerce therefore included an upward adjustment in SIW’s wire rod costs and reasonably addressed plaintiffs’ claims. 

Moreover, the second issue on remand pertained to plaintiffs’ argument that the ratio the Department calculated for SIW’s general and administrative (“G&A”) expenses failed to include the value of certain information technology services provided to SIW by its parent company, Tata Steel.  In the Remand Redetermination, Commerce expressly found that Tata Steel invoiced SIW monthly for the costs of the IT services.  Thus, the IT services were included in the G&A expenses.

For all these reasons, the Remand Redetermination was sustained.

 

Revised Liquidation Instructions Sustained

In its previous decision, United Steel and Fasteners, Inc. v. United States, 41 CIT __, 203 F. Supp. 3d 1235 (2017), this Court sustained the U.S. Department of Commerce’s (“Commerce”) conclusion that American Railway Engineering and Maintenance-of-Way Association (“AREMA”) washers were included within the scope of the antidumping duty order covering certain helical spring lock washers from the People’s Republic of China (“China”), but remanded Commerce’s instructions to suspend liquidation of AREMA washers.  This Court had determined that the suspension instructions were unlawful because Commerce exceeded its authority by ordering retroactive suspension of liquidation when issuing a final scope ruling that clarified the scope of an order.  Before the Court was the remand determination.

On remand, Commerce revised instructions to “correct the effective date of the suspension of liquidation” and suspend liquidation of AREMA washers imported by United Steel and Fasteners, Inc. from China entered, or withdrawn from warehouse, for consumption on or after July 8, 2013, which is the date that Commerce issued the final scope ruling.    Given the revised instructions complied with the Court’s order and opinion, the Court sustained the remand redetermination.

 

Remand Redetermination Remanded

In Baoding Mantong Fine Chemistry Co., Ltd. v. United States, Court No. 12-362, Slip Op. 17-44 (April 19, 2017), plaintiff Baoding Mantong Fine Chemistry Co., Ltd. (“Baoding Mantong” or “Baoding”) contested the final determination (“Final Results”) that the International Trade Administration of the U.S. Department of Commerce (“Commerce” or the “Department”) issued to conclude an administrative review of an antidumping duty order (the “Order”) on glycine from the People’s Republic of China (“China” or the “PRC”). Glycine from the People’s Republic of China: Final Results of Antidumping Duty Administrative Review, 77 Fed. Reg. 64,100 (Int’l Trade Admin. Oct. 18, 2012) (“Final Results”). In that review, Commerce issued a weighted averaged dumping margin of 453.79% to Baoding, a Chinese exporter and producer of glycine. The Remand Redetermination calculated a new weighted-average dumping margin of 64.97% for Baoding Mantong.

First and foremost, it must be noted that Nan Ya Plastics Corp. v. United States, 810 F.3d 1333 (Fed. Cir. 2016), does not invalidate the opinion issued by this Court in Baoding Mantong Fine Chemistry Co. v. United States, 39 CIT __, 113 F. Supp. 3d 1332 (2015) (“Baoding Mantong”).  While the Court found that Commerce reasonably used Indonesian financial data of urea, fertilizer, and pupuk to calculate the applicable financial ratios and that the surrogate value for liquid chlorine was supported by substantial evidence, the Court did not find that the Surrogate Value for ammonia was reasonable where it was based on aqueous ammonia rather than anhydrous ammonia.  Moreover, the reasons for using Indonesian Global Trade Atlas (GTA) import data over Philippine GTA import data was inadequate.

Likewise, the Court found the use of Indonesian GTA for purposes of calculating Baoding Mantong’s formaldehyde input to be unreasonable considering that Indonesia was the lowest of the four available data sets that merited consideration, and thus the Indonesian import data may not be the best information with which to value the formaldehyde. Finally, in regards to valuing the steam coal input Commerce must ensure that its choice is the best available information, where the GTA import data for Indonesia appears to be lacking.

For these reasons, Commerce’s Remand Redetermination was remanded.