Trade Updates for Week of May 30, 2018

United States Court of International Trade

 

Remand Redetermination Sustained

In Vinh Hoan Corporation et. al. v. United States et. al. Slip Op. 18-59, Court No. 13-00156 (May 24, 2018) and in An Giang Fisheries Import and Export Joint Stock Co. et. al. v. United States et. al. Slip Op. 18-60, Court No. 14-00109 (May 24, 2018) the Court reviewed Commerce’s decision on remand regarding the surrogate values for mandatory respondent Vin Hoan’s fish oil in various antidumping reviews. Originally, Commerce had selected Indonesia HTS data as the basis for the surrogate values. However, Commerce was concerned that the data included refined and unrefined fish oil, while respondent only used unrefined fish oil. Due to this concern Commerce “capped” the HTS value at an amount for unrefined fish oil. This amount was calculated using Vinh Hoan’s factors of production (“FOP”). Plaintiffs challenged this surrogate value and the capping procedure. Through various remands Commerce continued to believe the Indonesian HTS data the best available and continued to cap the data. However, the Court believed that Commerce was constructing a value and could not call the Indonesian data the best available. In the most recent remand under review, Commerce explained that the Indonesian data could not be used as a surrogate value and explained why it constructed a value in place of using a surrogate value. For the following reasons the Court upholds Commerce’s determinations in full.

Plaintiffs challenged Commerce’s determination to use constructed value as being unsupported by substantial evidence, and because it was unreasonable to disregard the Indonesia HTS data. When constructing surrogate values for non-market economies Commerce must use “the best available information regarding the values of such factors in a market economy” Id. at 10. Commerce is supposed to select the best available information based on five factors : “(1) specificity to the input; (2) tax and import duty exclusivity; (3) contemporaneity with the period of review; (4) representativeness of a broad market average; and (5) public availability.” Id. at 10. Commerce determined that the Indonesian HTS data was not specific because it covered refined and unrefined oil while the respondent only used unrefined oil in its product. In fact, Commerce determined the data only met the public availability factor and that constructing a value would be much more accurate. The Court said “Commerce has explained why it deviated from its usual practice and constructed a value using Vinh Hoan’s FOP data in this review. ” Id. at 14. The Court found the constructed value method reasonable because Commerce used the respondent’s own reported FOP data to build up a price that reflected the value of that respondent’s fish oil byproduct, and was more representative or respondent’s fish oil byproduct.

 

False Declaration of Country of Origin

In United States v. Active Frontier International Inc., Slip Op. 18-58, Court No. 11-00176 (May 24, 2018) the Court considered an action to recover civil penalties from defendant “for alleged false declarations of country of origin on seven entries of wearing apparel,” of women’s capris, jackets and pants.  Id. at 1. The government alleged the merchandise was “entered and/or introduced . . . by means of materially false documents, written statements, acts, and/or omissions.” The complaint alleged that Active Frontier falsely declared the country of origin of the goods on entry documentation. Before the Court was plaintiffs motion for a default judgment in the amount of $80,596.40. For the following reasons the Court agreed with the plaintiffs and granted the penalties. 

Firstly, the Court determined whether the Government’s complaint was sufficient enough for the Court to grant a default judgment. When evaluating a default judgment “the court accepts as true all well-pled facts in the complaint but must reach its own legal conclusions.” Id. at 2.  The legal conclusion the Court needed to reach in this case was that the misrepresentation was material under section 592 of the Tariff Act. The Court concluded that the misrepresentation was material because the imported pants were subject to an import quota; thus, the misrepresentation frustrated the purposes of the quota system. In addition, the Court found with regards to the other imported goods, that they were also material misrepresentations because the misrepresentation helped mask the false origin declaration in the pants since the goods were advertised and sold as single units.

Second, the Court determined the amount of the penalty to be imposed for the misrepresentations. For a negligent violation that did not result in a loss of revenue to the United States, there is a maximum penalty of 20% of the dutiable value of the merchandise. The Court concluded plaintiff’s factual allegations support a conclusion that Active Frontier was negligent. An importer is required to use reasonable care in importing merchandise. The Court found Active Frontier negligent because the Bills of Lading for the shipments clearly state China was the country of origin; it was obvious that defendant did not review available documentation.           

 

Remand Results Sustained on Crystalline Silicon Photovoltaic Products from China

In Jinko Solar Co., Ltd. et. al. v. United States et. al. Slip Op. 18-61, Court No 15-00080 (May 25, 2018) the Court reviewed Commerce’s decision on remand regarding an antidumping duty investigation of crystalline silicon photovoltaic products from China. On remand, Commerce reconsidered its use of South African HTS data as a surrogate value to value respondents scrapped solar module by-product. Under protest, Commerce instead choose to value the scrapped solar modules using Thai import data, the only other available surrogate option. For the following reasons the Court sustains Commerce’s determinations.

The issue for analysis in this case was whether the Thai import data for HTS 2408.69, which covered the raw material, was more specific, and was an appropriate choice as a surrogate value in the investigation. To select a surrogate value for non-market economies, Commerce uses “the best available information regarding the values of such factors in a market economy country.” Id. at 11. Commerce declined to provide an alternate explanation for selecting the South African data, and instead selected the other available category, the Thai import data, as the best available information for valuing the scrapped solar module by-product. The Court said the Thai data “covers the raw material that makes up the primary input in this by-product” and was therefore an appropriate surrogate value.