Trade Updates for Week of July 18, 2018

United States Court of International Trade

 

Remanded Determination where Commerce is to Proceed with New Shipper Review

Before the court in Huzhou Muyun Wood Co., Ltd., v. United States, Court No. 16-245, Slip Op. 18-89 (July 16, 2018), is the United States Department of Commerce’s (“Commerce”) Final Results of Redetermination Pursuant to Court Remand Order (Dep’t Commerce March 6, 2018) (“Remand Redetermination”), ECF No. 39, which the court ordered in Huzhou Muyun Wood Co., Ltd. v. United States, 41 CIT ____, 279 F. Supp. 3d 1215 (2017) (“Muyun Wood I”).  At issue is whether the single sale of multilayered wood flooring was commercially reasonable and thus bona fide for the purposes of a “new shipper review,” the process for calculating individual antidumping duty rates for a shipper who had not previously exported a product covered by an antidumping order into the United States. Plaintiff Huzhou Muyun Wood Co., Ltd. (“Muyun Wood”) contests Commerce’s Remand Redetermination, which concluded that the sale upon which the review was based was not bona fide and thus rescinded the review. Muyun Wood seeks another remand in which Commerce would proceed with the new shipper review and ultimately calculate its antidumping margin.

It was found that Penghong product’s CONNUM was identical to Muyun Wood’s CONNUM. Moreover, the data was from an administrative review contemporaneous with Muyun Wood’s sale, and Penghong’s product was not subject to an anti-dumping duty margin. Muyun Wood contends, however, that Commerce’s CONNUM does not take into account all aspects of wood flooring products that affect price -- particularly, surface treatment and veneer type -- and that Commerce ignored evidence of this fact that Muyun Wood introduced to the record. However, the Court disagrees, and Muyun Wood concedes, its sale price would still be higher than the corresponding Penghong price by 19.35 percent. Commerce’s determination that Muyun Wood’s price was high, and therefore atypical, is supported by substantial evidence.

However, the finding that the sales was not bona fide was not supported by substantial evidence. In the matter before this court, Commerce determined that the sales quantity was typical, the expenses were normal, and the sale was made at arm’s length.  Considering all of the factors in the totality of the circumstances, analysis does not suggest that the sale was commercially unreasonable. Commerce was thus ordered to conduct a new shipper review for Myun Wood.

 

Motion to Consolidate Denied

In Vincentin S.A.I.C. et al., v. United States, Court No. 18-9, Slip Op. 18-90 (July 17, 2018), the court considers a motion to consolidate Vicentin S.A.I.C. v. United States, Court No. 18-00111 (USCIT filed May 15, 2018) (“Court No. 18-00111”) and LDC Argentina S.A. v. United States, Court No. 18-00119 (USCIT filed May 21, 2018) (“Court No. 18-00119”), with this action, Vicentin S.A.I.C. & Gov’t of Argentina v. United States, Consol. Court No. 18-00009 (USCIT filed Feb. 2, 2018) (“Consol. Court No. 18-00009”) filed by Vicentin S.A.I.C., LDC Argentina S.A., and the Government of Argentina (collectively “Consolidated Plaintiffs”). 

There are no likely benefits to consolidation as the challenges to Biodiesel CVD Final Determination and the Biodiesel ADD Final Determination do not share common questions of law. Further, the court must review each challenge on its own record, see 19 U.S.C. § 1516a(b)(1)(B), and therefore it is unclear why the single consideration of some common facts between the CVD and ADD final determinations would promote judicial efficiency, and it is not clear what harm result from reviewing the challenges separately.  Moreover, the challenged CVD and AD determinations are based on separate administrative records, containing business proprietary information.  Constant care would be necessary to protect the protected information.  Finally, consolidation would result in piecemeal scheduling involving multiple parties, and those the parties would be subject to normal delays as if both cases were reviewed separately.  Thus, the motion to consolidate was denied.