Trade Updates for Week of April 26, 2017

United States Court of International Trade

 

Determination Remanded

In Borusan Mannesmann Boru Sanayi ve Ticaret A.S. v. United States, Court No. 14-00009, Slip Op. 17-45 (April 20, 2017), plaintiff Borusan Mannesmann Boru Sanayi ve Ticaret A.S. (“Borusan”), a Turkish producer and exporter of standard pipe – contests the final results of the U.S. Department of Commerce’s 2011-2012 administrative review of the antidumping duty order covering welded carbon steel standard pipe and tube products from Turkey (“standard pipe”).  Specifically, Borusan contested Commerce’s decision to exclude yield loss such as scrap and second quality pipe from duty drawback adjustment in calculating the company’s dumping margin.  Borusan argued that the exclusion would create an “imbalance” between export price and normal value, thereby inflating the dumping margin. The duty rate applicable to scrap and second quality pipe during the 2011-2012 period was 0%.   Remand was, therefore, warranted to address Borusan’s argument regarding the zero duty rate.  Moreover, Commerce’s decision misstated Turkish law, stating that any scrap or byproduct not exported would be subject to duties, when in fact only those goods which were actually sold in the Turkish domestic market would be subject to import duties and VAT.   For these reasons Commerce’s determination was remanded.

 

Sustained Remand Results

Before the Court in Hangzhou Yingqing Material Co. And Hangzhou Qingqing Mechanical Co., v. United States, Slip Op., 17-147, Court No. 14-133 were the Remand Results in Steel Wire Garment Hangers from the People’s Republic of China, 79 Fed. Reg. 31,298 (Dep’t Commerce June 2, 2014) (final results 4th admin. rev. and new shipper rev).  In the Remand Results, Commerce reconsidered its allocation of labor costs, determined that it would continue not to adjust the financial ratios, and provided further explanation for its departure from its decision to adjust the financial ratios based on similar labor expenses in the Certain Nails from the People’s Republic of China, 79 Fed. Reg. 19316 (Dep’t Commerce April 8, 2014) (final results 4th admin. rev.). Commerce also reconsidered its valuation of brokerage and handling (“B&H”) costs, deducted the cost of obtaining a letter of credit from the total amount of B&H expenses, and revised the combination rate weighted-average dumping margin accordingly.  All parties agreed that these results addressed the Court’s decision below. For these reasons the Remand Results were sustained.

 

Exporter Who Received Zero Countervailing Duty Margins Lacks Standing to Sue

An exporter who received a favorable determination in a countervailing duty case lacks “injury in fact” and standing to sue, according to a pair of decisions from the United States Court of International Trade.

In PAO Severstal v. United States, Slip. Op. 17-50 (April 25, 2017) an exporter of cold-rolled steel from Russia who had received a de minimis margin in a countervailing duty proceeding, and was thus not subject to special duties, sued to challenge various legal and factual determinations which the Commerce Department made in the CVD proceeding. On the government’s motion, the Court, per Judge Gary Katzmann, dismissed the plaintiff’s case without prejudice, indicating that the exporter, having received a favorable determination, lacked “injury in fact” and thus standing to sue.

In Arcelormittal USA Inc. v. United States, Slip Op. 17-49 (April 25, 2017), the court dismissed Severstal’s cross-claims in the domestic industry’s challenge to the CVD findings, on largely the same grounds. While Severstal could participate in the case and defend against the domestic industry’s challenge, it could not raise its own claims when it had not been subjected to special duties. Those claims were dismissed, without prejudice for Severstal to renew them, in the event that company became subject to a countervailing duty order in the future.

 

“New Shipper Review” Recipient Should Have Been Given Chance at Zero Rate

A company who received a zero antidumping rate in a “new shipper review” involving hardwood flooring should have been given a chance to retain that rate in a subsequent administrative review of the antidumping order, the Court of International Trade recently held.

In Linyi Bonn Flooring v. United States, Slip Op. 17-46 (April 21, 2017), an exporter sought a “new shipper review” and secured its own antidumping rate of 0.0%. While this proceeding was ongoing, the Commerce Department initiated an annual review of the order. Since Linyi Bonn did not enter an appearance in that proceeding and assert its right to a separate rate, Commerce subjected the company to the “China-wide” antidumping rate.  The exporter sued, and Commerce held that, because the company had not timely provided a certificate of no sales for the period in question, it was not entitled to a separate rate.

However, the CIT, per Chief Judge Timothy Stanceu, held that Commerce had erred by not providing the plaintiff, and other interested parties, with notice of an alternative procedure which would have allowed them to file a “partial no shipments” certification in the annual review. The court remanded the case to Commerce with instructions to allow the company to submit the certification.

 

Decision in Antidumping Review of MSG Remanded for Correction

While some of Commerce’s determinations in an annual review of the antidumping order against Monosodium Glutamate from China were supported by “substantial evidence”, others were not, according to a recent decision of the Court of International Trade.

In Ajinomoto North America v. United States, Slip Op. 17-48 (April 25, 2017), a domestic producer challenged Commerce’s determination of certain “surrogate values” used in the antidumping calculation. First, the Court granted a motion by the government for voluntary remand so that the government could recalculate the value of certain corn used in the production process, to reflect the producer’s actual consumption rather than a standard value.  However, the court sustained Commerce’s selection of an index to determine the value of coal used in the production process, as well as the department’s selection of data to value certain “high protein scrap”.

But the court remanded to Commerce the question of how it calculated inland freight charges, claiming that the agency had used some impermissibly fuzzy data centered on the “Jakarta periurban area”, while some of the production facilities were located relatively far from Jakarta.