Trade Updates for Week of November 14, 2018

United States Court of International Trade

Motion to Dismiss Granted

Before the Court in U.S. Auto Parts Network, Inc. v. United States et. al., Slip Op. 18-154, Court No. 18-00068 (November 8, 2018) was defendant’s motion to dismiss the case. Plaintiff challenged the Government’s imposition of a $9 million entry bond requirement, well in excess of the plaintiff’s $200,000 worth of annual imports, for violating U.S. trademark laws. The Court had previously issued a preliminary injunction for plaintiff. For the following reasons the Court dismissed the case.

 “A claim is non-justiciable if it is moot, which occurs when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” Id. at 3. In this case, the Court found plaintiffs’ claims were moot because the “Port of Norfolk had released all containers to U.S. Auto” and because “U.S. Auto represented also that the company stopped importing goods through the Port of Norfolk.” Id. at 3. The Court also said plaintiffs failed the meet the ripeness doctrine “because there is no final agency action for the court to review.” Id. at 4. Plaintiff’s now “speculative set of facts do not present a justiciable controversy.” Id. at 4.

 

Commerce’s Determination in regards to Carbon and Alloy Steel Wire Remanded in Part

Before the Court in Deacero S.A.P.I de C.V. et. al. v. United States et. al., Slip Op. 18-155, Court No. 17-00183 (November 8, 2018) were challenges to Commerce’s determinations in the administrative review of carbon and certain alloy steel wire rod from Mexico. Commerce used the total facts available to apply an adverse inference to calculate Deacero’s final dumping margin. This resulted in Commerce selecting the highest rate alleged in the 2001 petition, 40.52%, as Deacero’s AFA rate and final dumping margin. For the following reasons the Court sustains the agency’s determination to apply total facts available with an adverse inference but remands Commerce’s selection of 40.52% as the AFA rate for further explanation.

“Commerce shall use facts otherwise available to reach its final determination when necessary information is not available on the record, a party withholds information that has been requested by Commerce, fails to provide the information timely or in the manner requested, significantly impedes a proceeding, or provides information Commerce is unable to verify.” Id. at 6. In this case, the Court held that Commerce was correct in applying adverse facts because “Deacero impeded Commerce’s review when it made changes to its cost dataset, misrepresented the effects of those changes, and did not provide supporting record evidence to explain the changes.” Id. at 7. Under a similar analysis the Court also upheld the application of adverse inferences because “Deacero did not act to the best of its ability to cooperate with Commerce’s requests for information.” Id. at 15. However, the Court did remand the 40.52% rate from the complaint because the rate was reached under an “analysis that was undertaken in 2001 without placing on the record any of the relevant documents.” Id. at 18.

 

Commerce’s Determination in Crystalline Silicon Photovoltaic Products Review Remanded in Part

Before the Court in SolarWorld Americas, Inc. et. al. v. United States et. al., Slip Op. 18-158, Court No. 17-00208 (November 13, 2018) were Commerce’s determinations in an administrative review of the antidumping duty order on crystalline silicon photovoltaic products from Taiwan. The court reviewed whether Commerce properly adjusted respondent, Motech, per-unit costs when it declined to apply partial adverse facts available; whether Commerce properly adjusted respondent, SAS, reported costs for different grades of merchandise when it declined to apply partial adverse facts available; and whether Commerce properly determined that all merchandise shipped by SAS during the period of review were United States sales. For the following reasons the Court sustained in part and remanded in part.

 “In order to calculate the dumping duty, Commerce compares the foreign market value, the normal value, of the product to the United States price, the export price.” Id. at 6. “Commerce’s practice in evaluating costs for non-prime merchandise is to determine if that merchandise can be used in the same applications as prime merchandise.” Id. at 7. In this case, the Court sustained Commerce’s action regarding Motech’s per unit cost because Commerce relied on Motech’s explanation of the companies grades in its questionnaire response. The Court also sustained the cost adjustment for SAS because it was reasonable for Commerce to reduce the costs of certain grade photovoltaic products based on evidence on the record that the grade could not be used for the same applications as prime merchandise. In addition, the Court sustained Commerce’s decision not to apply adverse facts to respondents because both “complied fully with Commerce’s requests.” Id. at 11. In regards to the United States sales of SAS’s merchandise, the Court remanded the issue to Commerce “because evidence on the record establishes sales to customers in Mexico and demonstrates that the merchandise was shipped to United States FTZ addresses” to be forwarded to Mexican customers. Id. at 13.