Trade Updates for Week of March 14, 2018

United States Court of International Trade

 

Remand Determination Affirmed

In Evonik Corporation et al. v. United States, Court No. 15-296, Slip Op.18-21 (March 12, 2018), the Court reviewed the remand determination in the 2013-2014 administrative review of the antidumping duty order on glycine from the People’s Republic of China. This consolidated action was brought by Evonik Rexim (Nanning) Pharmaceutical Co. Ltd. and Evonik Corporation (collectively, “Evonik” or “Plaintiffs”), Baoding Mantong Fine Chemistry Co., Ltd. (“Baoding”), and GEO Specialty Chemicals, Inc. (“GEO”) (collectively, “Consolidated Plaintiffs”) for judicial review of decisions made by the U.S. Department of Commerce (“Commerce” or “Department”) during the 2013–2014 administrative review of the antidumping duty order on glycine from the People’s Republic of China (“China” or “PRC”).  The court remanded the Department’s findings with respect to Baoding on (1) the surrogate value selection for liquid ammonia, and (2) the selection of companies used for Baoding’s surrogate financial ratios. Commerce found that the Indonesian GTA import data for anhydrous ammonia “were the most product-specific data placed on the record” for the administrative review period and “representative of a broadmarket average,” and, accordingly, assigned the surrogate value for liquid ammonia as $619.21 USD per metric ton.  There was an issue with which review data being used, but the Court found that the import data relied upon was 2013/2014 was used and verified.

The surrogate value was affirmed because PT Budi and PT Lautan (source of surrogate designated value) was comparable to Baoding’s processing. 

 

Default Judgment Granted in Crayfish Case

In United States v. Rupari Food Services In. Slip Op. 18-20, Court No. 10-00119 (March 9, 2018) the Court granted the Government’s motion for a default judgment in a case “whose background spans more than two decades, and which has seen the reorganization of a federal agency, a bankruptcy, … and the withdrawal of counsel.” Id. at 1. The Government argued that Rupari “knowingly and falsely claimed that five seized entries of frozen Chinese crawfish tail meat” imported into the US originated in Thailand, thus circumventing an antidumping order and sought civil penalties.  Id. at 2. The action was brought to recover penalties in the amount of $2,784,636.18.  For the following reasons the default judgment was granted against Rupari.

Rupari’s major business practice was to purchase crawfish internationally and sell it to restaurants for consumption in the US. One of Rupari’s major suppliers was investigated in an antidumping investigation by Commerce, and was subject to a 201.63% duty rate on crawfish. In 1998 Rupari ordered crawfish through a Thai company called Seamaster. Rupari knew that Seamaster was a shell company formed by its major supplier subject to the dumping order. The shellfish would be sent to Thailand by the Chinese producer, repacked and labeled made in Thailand and shipped to Rupari in the US. In 1998, Customs issued a request for information regarding the entries and then numerous cases were filed at the CIT for penalties against Rupari and other involved parties. These would eventually be consolidated into this action. Amid the litigation, the involved corporate officers from Rupari passed away, and the company filed for bankruptcy. However, most importantly, in June 2017 Rupari’s counsel moved to withdraw, which was granted by the Court. The Court then ordered Rupari to retain new counsel in 30 days or “it would entertain a motion for default judgment,” Rupari failed to do so. Id. at 17.   “A defendant who defaults thereby admits all well-pleaded factual allegations contained in the complaint.” Id. at 19. The complaint supports its claim by including statements from Thai government that no crawfish producers farmed in the country, and that Rupari never purchased from a source in Thailand.  Additionally, Rupari submitted documents to Customs that were false.  The Court said this was clear and convincing evidence to establish the materiality and falsehood of Rupari’s representations to Customs. As such, the default judgment for civil penalties was granted.

 

Rebar Scope Ruling Upheld

In Quiedan Co. v. United States et. al.  Slip Op. 18-19, Court No. 16-00275 (March 9, 2018) the Court reviewed Commerce’s final scope ruling holding an antidumping order on rebar applicable to plaintiff’s agricultural training stakes and allowing Customs to collect duty on the unliquidated entries of the product. For the following reasons the Court upholds the scope inquiry in full.

Plaintiff produces steel bars in lengths of four to five feet that are stamped into a stake at one end to help farmers grow vine plants, such as grapes, vertically. “Quiedan argues that the Department’s determination in the Final Scope Ruling is unsupported by substantial evidence” and argues that the ruling was not “supported by the plain meaning of the scope language”. Id. at 7. Commerce’s ruling found it unimportant that the bars were stamped to provide a point at the end saying that the bar was still straight, and the process of stamping the bars was not a further manufacturing process.  Quiedan argued that this ruling was incorrect because a training stake is pointed at one end and may no longer be “straight through its length.”  However, the Court said that the dictionary definition of straight on the record, “generated by a point moving continuously in the same direction and expressed by a linear equation”, applied to the product because the rod starts at one point and ends in a linear fashion at another.  Id. at 14. Plaintiff also argued that their product was not rebar because the product was different from rebar’s dictionary definition.  The Court said the dictionary definition was unnecessary, because the order defines rebar as “all steel concrete reinforcing bars (rebar) sold in straight lengths.” Id. at 15. Plaintiff also argued that ITC sunset reviews defined rebar as for use in construction. However, the Court points out language in the reviews including all steel bars used in a variety of ways, including farming.  Based on this evidence “the court concludes that the Department’s decision is reasonable and supported by substantial evidence.” The Court also found that because the product fell within the plain language of the scope no formal inquiry needed to be opened, and that Customs should be allowed to retroactively collect duties.

           

Amicus Curiae Status Granted

In Irving Paper Limited et al. v. United States, Court No. 17-128, Slip Op. 18-22, the Court considered the application for leave to file a brief as Amicus Curiae of the Committee Overseeing Action for Lumber International Trade (“the COALITION”).  The COALITION seeks to participate as amicus to respond to the court’s letter asking the parties to provide the specific authority according to which Commerce promulgated 19 C.F.R. § 351.214(k) (2015), establishing expedited reviews in countervailing duty (“CVD”) proceedings. The COALITION explains that its interest in the action “relates to the question of whether an expedited review of a non-individually investigated producer in a CVD proceeding is a determination provided for by 19 U.S.C. § 1675, governing the ‘administrative review of determinations.’” Because the Court found the COALITION’s argument and analysis not represented by any party, the Court determined COALITION’s comments useful to the Court’s review in this case, especially for jurisdiction purposes.