Trade Updates for Week of May 3, 2017

United States Court of International Trade

 

Redetermination Sustained.

Before the court in Albemarle Corp. and Ningxia Huahui Activated Carbon Co., Ltd., v. United States, Court No. 11-451, Slip Op. 17-51 (April 28, 2017) were the Final Results of Redetermination Pursuant to Court Remand (Oct. 14, 2016), ECF No. 135 (“Remand Redetermination”), which the International Trade Administration, U.S. Department of Commerce (“Commerce”) issued in response to the court’s Opinion and Order in Albemarle Corp. v. United States, __ CIT __, Slip Op. 16-84 (Sept. 7, 2016). Because all parties commented in favor of the remand redetermination which assigned Ningxia Huahui Activated Carbon Co., Ltd. a redetermined weighted average dumping margin of zero, the remand redetermination was sustained.

 

Sustained Remand Results

In CC Metals and Alloys, LLC and Globe Specialty Metals, Inc. v. United States, Court No. 14-202, Slip Op. 17-52 (April 28, 2017), the Court sustained the final remand results.  Commerce in its final determination, while it was not consistent with its actual treatment of home market warehousing expenses and revenue in the margin calculation program, it did in fact account for those items lawfully under the statute, as well as under its regulations and practice. 

Moreover, in regards to imputed credit expenses, Commerce explained that it “inadvertently applied a simple average of the short-term interest rates, rather than a weighted-average of the short-term interest rates,” and corrected the calculation. In the final determination, Commerce used a “simple” average of short-term rates derived from a small set of Chelyabinsk Electrometallurgical Integrated Plant Joint Stock Company’s (“CHEMK”) factoring arrangements that Commerce examined at verification.  In the remand results, a weighted average was applied.  Finally, Commerce used CHEMK’s verifiable data for purposes of short term borrowing rate selection. 

 

Injunction Granted

In CS Wind Vietnam Co., Ltd., and CS Wind Corporation, v. United States, Court No. 13-00102, Slip Op. 17-53, (April 28, 2017), the Court decided whether liquidation should be enjoined on entries subject to the antidumping duty order regarding wind towers from Vietnam.   CS Wind has already succeeded on the merits before this court and there are no public interest issues or balance of hardship issues, the only issue was whether any irreparable harm will come to CS Wind if liquidation is not suspended.  Because the Court already issued two notices that suspended liquidation pending a “conclusive” court decision, as per Timken Co. v. United States, 893 F.2d 337, 341 (Fed. Cir. 1990), the Court granted the motion for injunction covering the first entry, and decided that an open injunction was not further needed, as per the first Timken notice.  Moreover, the court will issue the limited injunction if the government consents to the broader injunction.  

 

United States District Court

 

Exporter’s Case Not Dismissed Where Administrative Forfeiture Proceedings Not Instituted; Government Blasted for Deception

A court will not dismiss an exporter’s lawsuit seeking return of property seized by United States Customs and Border Protection where no administrative forfeiture proceedings are underway, according to a recent decision by the United States District Court for the Central District of California.

In In re Seizures of Containers of Aluminum Pallets Detained at Long Beach Port, CV 16-2640 (April 21, 2017) was commenced by California-based Perfectus Aluminum Co. after Customs and Border Protection officers first detained, then seized, some 547 containers of aluminum pallets being exported at Long Beach. The basis for the seizure is unclear, but were supposedly part of a criminal investigation. Chinese-based Zhongwang Holdings, believed to be related to Perfectus, is under investigation for evasion of antidumping duties on Chinese-made aluminum extrusions, and there have been claims that Perfectus is hoarding large quantities of aluminum in Mexico.  Perfectus petitioned the Court for release of the seized merchandise, claiming it had no remedy at law.

The government sought to dismiss the case, claiming that the seized aluminum was currently part of “administrative forfeiture” proceedings being conducted by CBP, but these claims turned out to be false. The value of the goods was too high for administrative forfeiture proceedings, and no such proceedings had been initiated, the Court noted.  The Court blasted the government for misrepresenting the status of administrative forfeiture proceedings, noting “It is shocking and deeply disappointing that the United States Attorney’s Office would file a brief with this Court so replete with falsities. After the Court pointed out the inconsistencies in the government’s briefing, see Doc. # 39 (request for supplemental briefing), the government deflected responsibility, stating that any “suggestion” that administrative forfeiture proceedings were underway with respect to the aluminum pallets was “unintended.” Resp. Supp. Brief at 4. The Court refuses to interpret the government’s repeated assertions on this matter as inadvertent errors.”

Perfectus had requested that the seizures be referred to the U.S. Attorney for initiation of administrative forfeiture proceedings. The Court denied the government’s motion to dismiss, and stayed the petition pending initiation of the forfeiture proceedings.