Trade Updates for Week of December 19, 2018

United States Court of International Trade

Bonds Were Not Nullified as a Result of Pension Protection Act

Before the Court in Hartford Fire Insurance Co. v. United States, Slip Op. 18-172, Court No. 11-00135 (December 14, 2018) were cross motions for summary judgement regarding the denial of plaintiff’s protests of demands by U.S. Customs and Border Protection (“CBP”) for payment of antidumping duties on surety bonds. During the summer of 2006, Shandong Longtai Fruits and Vegetables Co., Ltd. was a new shipper of fresh garlic into the US, which was subject the antidumping order on fresh garlic. Shandong Longtai did not deposit cash to cover the estimated antidumping duties, but rather provided single entry bonds, for which Hartford was the surety. Customs calculated the final amount of antidumping duties owed by Shandong Longtai on the subject entries, and demanded that Shandong Longtai pay. Shandong Longtai failed to pay the final duties. Hartford paid as the surety and commenced this case to challenge Custom’s authority to demand the payment. For the following reasons, the defendant’s motion for summary judgment was granted by the Court.

Under 19 U.S.C. § 1675, Customs was authorized to allow, new shippers, the option of a bond or security in lieu of a cash deposit for each entry of the subject merchandise. However, the Pension Protection Act of 2006 (“PPA”), suspended the new shipper bonding privilege. The PPA said “the new shipper bonding privilege shall not be effective during the period beginning on April 1, 2006, and ending on June 30, 2009.” Id. at 5. Plaintiff argued that the bonds were nullified and unenforceable when the ability of Customs to accept bond had been removed.

Customs should have gone after Shandong Longtai for the amount. The Court disagreed with all of these arguments, saying “suspension of the new shipper bonding privilege was enacted largely as a result of the significant loss of revenue attributed to new shippers of merchandise subject to antidumping duty orders.” Id. at 9. Ultimately, plaintiff’s arguments about the PPA “would run contrary to Congressional intent and result in additional revenue loss for Customs.” Id. at 12.

Remand Determinations were Sustained in Crystalline Silicon Photovoltaic Cell Case

Before the Court in SolarWorld Americas, Inc. et. al. v.  United States et. al., Slip Op. 18-171, Court No. 16-00134 (December 13, 2018) was Commerce’s remand redeterminations regarding an antidumping review of crystalline silicon photovoltaic cells from China. The court had previously remanded Commerce’s surrogate value selection for mandatory respondent Yingli Green Energy Holding Co., Ltd.’s (“Yingli”) tempered glass and Changzhou Trina Solar Energy Co., Ltd.’s (“Trina”) scrapped solar cells. For the following reasons, the court sustains Commerce determinations from remand.

When a respondent is from a nonmarket economy (“NME”), such as China, Commerce must determine normal value based on the factors of production (“FOPs”) used to produce the merchandise. Commerce determines the FOPs based on the best available information considered to be appropriate. “Commerce’s methodology for selecting the best source is to choose a price that is (1) specific to the input; (2) tax and import duty exclusive; (3) contemporaneous with the period of review; (4) representative of a broad market average; and (5) publically available.” Id. at 13. On remand, Commerce reconsidered its decision to use Thai data as a surrogate for tempered glass, instead the agency opted to use Bulgarian import data.

The Court sustained the used of the Bulgarian data because “the data is specific to the input, tax and duty exclusive, contemporaneous, representative of a broad market average, and publically available.” Id. at 14. On remand, Commerce opted to value Trina’s scrap cells and modules using import data under Thai HTS 2804.69, which covers silicon of a purity less than 99.99 percent as opposed to the previous Thai HTS 8548.10. The Court said this decision was supported by substantial evidence as it responds to the court’s order in SolarWorld Americas II.