Trade Updates for Week of May 23, 2018

United States Court of International Trade

 

Remand Redetermination in New Shipper Review Sustained

Where record data from the International Labor Organization’s Yearbook for Thai labor wages was preferred to industry specific wages provided from the Ukraine or Philippines, the Court sustained Department of Commerce’s decision to use Thai labor information in remand determination.

Before the Court in GGB Bearing Technology (Suzhou) Co., Ltd. and Stemco LP v. United States, Court No. 12-386, Slip Op. 18-55 (May 22, 2018), was the remand redetermination issued by Commerce in response to the Court’s order of December 12, 2017 in GGB Bearing Tech. (Suzhou) Co. v. United States, 41 CIT_, 279 F. Supp. 3d 1233(2017)(“GGB I”).  The underlying decision contested dealt with results in a new shipper review concerning Tapered Roller Bearings and Parts Thereof, Finished and Unfinished from the People’s Republic of China.

Plaintiff GGB Bearing Technology (Suzhou) Co., Ltd. (“GGB”) is a Chinese producer and exporter of tapered roller bearings and parts thereof, finished and unfinished (“subject merchandise” or “TRBs”, while plaintiff Stemco LP is GGB’s U.S. affiliate and importer of subject merchandise.

In this Remand Redetermination the Court upheld Commerce’s finding that Philippines and Ukraine were significant producers. Record evidence showed that Philippines and Ukraine had exports of the subject merchandise valued at $16,850, 256 for Philippines and $97,047,957 for Ukraine in 2010.  This allowed Commerce to consider labor cost data from the Philippines or Ukraine.  However, the Court also sustained Commerce’s finding to use Thai “total manufacturing” labor cost data, as it was favored over the industry specific labor cost data of the Philippines or Ukraine.

 

Motion for Judgment on Agency Record Denied in Nails Case

Financials from a “toll processor” could not be used to provide a reasonable surrogate for constructed value profit and selling expenses.  In Mid Continent  Steel & Wire, Inc. v. United States, Court No. 16-244, Slip Op. 18-56 (May 22, 2018), the Court sustained Commerce’s decision regarding a surrogate for CV profit and selling expenses in Certain Nails from the United Arab Emirates (“UAE”), 81 Fed. Reg. 71482 (Oct. 17, 2016).  Because Overseas Distribution Services, Inc. (“ODS”) lacked a viable home or third country market, Commerce resorted to “any other reasonable method” to find a surrogate for the profit and selling expenses for ODS.  Plaintiff argued for the use of financial statements from Overseas International Steel Industry LLC (“OISI”), an affiliate of ODS located in Oman, however, Commerce decided that OISI was a more of a service provider than producer, who lacked the necessary expense information to be a surrogate for CV purposes.

“Commerce concluded OISI a “mere” toll processor and not a producer of comparable merchandise, it eliminated OISI’s financial statements from contention among those on the record for use as possible surrogates for ODS’s profit and expense data, and it selected LSI’s financials based on the quality of their data. Substantial evidence of record supports that determination.” Slip Op., pg. 10.  For this reason, the Court denied plaintiff’s motion and upheld Commerce’s determination. 

 

Judgment on Agency Record Denied in Chlorinated Isocyanurates Case

In Heze Huayi Chemical Co., Ltd. and Juancheng Kangtai Chemical Co., Ltd. v. United States, Court No. 17-32, Slip Op. 18-57 (May 22, 2018), the Court denied a motion for judgment on agency record sustaining the decision to hold Mexico as a significant producer of comparable merchandise.  The plaintiffs Heze Huayi Chemical Co., Ltd. (“Heze”) and Juancheng Kangtai Chemical Co., Ltd. (“Kangtai”), producers and/or exporters of subject merchandise, initiated this challenge to the 2014-2015 administrative review (“POR”) of the antidumping duty (“AD”) order on chlorinated isocyanurates (“chlor-isos”) from the People’s Republic of China (“PRC”). See Chlorinated Isocyanurates from the PRC, 82 Fed. Reg. 4852 (Jan.17, 2017) (final results of 2014-2015 antidumping duty admin. review) (“Final Results”). Commerce found Mexico to produce both “identical” and “comparable” merchandise. 

Because the governing statute does not define what is comparable or significant, the Court held that Commerce’s interpretation will govern if reasonable. Plaintiffs argue that the quantity of Mexican production of chlor-isos is uncertain, and that Commerce needs to explain why a small amount of production is a significant quantity, given that Mexico is also an importer of chlor-isos.. However the Court found that there was evidence there as cross border trade data on the shipments of the subject merchandise, and that Mexico was indeed a source of U.S. imports of chlor-isos.  Presented with no clear error or abuse of discretion, the Court finds Commerce decision supported by substantial evidence. Furthermore, the Court found Commerce’s use of CYDSA’s, a Mexican company, financial statement for calculating financial ratios also to be supported by substantial evidence.

 

Remand Decision Regarding Crystalline Silicon Photovoltaic Cells Remanded in Part

In Solarworld Americas Inc. et. al. v. United States et. al., Slip. Op. 18-53, Court No. 16-00134 (May 18, 2018) the Court considered the remand decision concerning the second administrative review of the antidumping duty order covering crystalline silicon photovoltaic cells.  In this second administrative review of the ADD order on crystalline silicon photovoltaic cells, whether or not assembled into modules, from China, Commerce selected Yingli Green Energy Holding Co., Ltd. (“Yingli”) and Changzhou Trina Solar Energy Co., Ltd. (“Trina”) as mandatory respondents. The Court had remanded three issues to Commerce for reconsideration: the agency’s use of import data with reported quantities of zero, Commerce’s valuation of tempered glass input using Thai import data, and Commerce’s selection of Thai HTS category 8548.10 to value scrapped solar cell and module byproduct. For the following reasons the Court sustains Commerce’s determinations in regards to the reported quantities of zero in the surrogate value calcultions but remands the other issues for further consideration.

The first issue the Court examined was Commerce’s inclusion of reported import data with values of zero. Plaintiff argued that the inclusion distorted the results and made them unreliable. On remand Commerce determined the zero-quantity data was “attributable to rounding small quantities down to zero, rather than random errors that might result in unreliable data” Id. at 10. The Court held that because Commerce had conducted two separate studies to confirm this determination Commerce had adequately supported the conclusion. The next issue was Commerce’s valuation of Yingli’s tempered glass input. Commerce used Thai import data as a surrogate value for the input. 1.6% of the Thai data was imports from Hong Kong but compromised over ¾ of the data’s overall value. The issue was previously remanded because Commerce cited two cases were not current practice at the time in support of its determination the data was proper. On remand, Commerce cited a case which the agency believed represented current practice. However, the Court said the agency still failed to adequately explain why the Hong Kong imports in the Thai data was not aberrational and remanded the issue back to Commerce. Further, Commerce must reconsider the issue of disproportionate impact of the Hong Kong data.  The final issue was Commerce’s selection of HTS 8548.10 to value scrapped solar cells. The issue was previously remanded because Commerce had not explained its decision regarding which HTS subheading to value the inputs under. On remand, the agency said it believed HTS 8548 was more specific then plaintiff’s proposed subheading. The Court believed that Commerce had not sufficiently explained why “the category is a reasonable choice for the best available information.” Id. at 24. The issue was remanded for Commerce to adequately explain why it believed HTS 8548 was more specific then other options.

 

Granted Motion to Dismiss Plaintiff’s Complaint Regarding Oil Country Tubular Goods from India

In United States Steel Corporation v. United States, Slip Op. 18-54, Court No. 17-00190 (May 18, 2018) the Court heard arguments regarding defendant’s motion to dismiss. Plaintiff challenged Commerce’s amended antidumping order regarding oil country tubular goods from India. The amended order was published in the Federal Registrar after previous litigation by plaintiff regarding the same antidumping investigation. Plaintiff bought a new case challenging the all others rate in the amended order as inconsistent with the Court’s previous decision about the order. For the following reasons the Court agrees with defendant and dismisses the case.

The first issue the Court analyzed was the motion to dismiss for lack of subject matter jurisdiction.  “A party may challenge an antidumping duty order based upon a final affirmative determination by filing a summons in this Court within 30 days of the order’s publication in the Federal Register” Id. at 7. The Court found that it had subject matter jurisdiction because “plaintiff’s complaint in the present action challenges Commerce’s purported failure to recalculate the all-others rate” in the amended order and was timely filed with on 30 days of publication. The next issue was whether plaintiff’s claims were precluded by the previous decision. “The doctrine of claim preclusion not only prohibits the litigation of matters that were previously litigated, but also those that could have been litigated.” Id. at 9.  The Court held that “Plaintiff could have challenged the all-others rate at the time that it challenged the individual respondents’ rate” therefore precluding this claim.  Id. at 9. For this reason, the Court dismissed the complaint and granted defendant’s motion.

 

United States Court of Appeals for the Federal Circuit

 

Federal Circuit Tries to Clarify Scope of Aluminum Extrusions Dumping, CVD Orders

The United States Court of Appeals for the Federal Circuit recently issued two new decisions attempting to clarify the scope of the antidumping and countervailing duty orders on Aluminum Extrusions from China, which have so far been interpreted to cover everything from tennis racket handles to curtain walls for buildings.

In Meridian Products LLC v. United States, No. 2016-2657 (May 22, 2018) the Court considered whether certain handles for ovens were within the scope of the order. The particular handles in question featured an aluminum tube and two plastic endcaps. The endcaps were designed to be fastened to the door of an oven or other appliance.

The Court of International Trade had concluded that these particular handles were not “aluminum extrusions” within the scope of the order, due to the presence of the plastic endcaps. It held that the endcaps were not “fasteners.” Consequently, it concluded that the handles fell within the scope of the “finished goods kit” exception to the order. On appeal, the Federal Circuit reversed, concluding that the endcaps were fasteners. It noted that, under the scope of the orders in question, where an aluminum extrusion is packaged with fasteners – in this case the endcaps and screws – the presence of fasteners did not put it within the scope of the “finished goods kit” exemption.

However, the Federal Circuit noted that the testimony was inconsistent about whether, in the products’ condition as imported, the plastic endcaps were permanently affixed to the aluminum tubes. The Court noted that if, at the time of importation the plastic caps were permanently affixed, then the product might be exempt from the scope of the orders as “finished merchandise” [“the scope also excludes finished merchandise containing aluminum extrusions as parts that are fully and permanently assembled and completed at the time of entry…”].

In Whirlpool Inc. v. United States, No. 2017-1117 (Fed. Cir., May 23, 2018) the Federal Circuit addressed the classification of that company’s refrigerator handles, which featured plastic end-caps. The Court held that the handles were within the inclusive language of the orders, but suggested that if the end-caps were permanently attached, the product could fall within the “finished goods” exclusion.