Trade Updates for Week of August 8, 2018

United States Court of International Trade


Motion to Dismiss Denied in Byrd Amendment Case

In DAK Americas LLC and Auriga Polymers, Inc. v. United States, Court No. 17-195, Slip Op. 18-95 (August 6, 2018), plaintiff challenged Customs and Border Protection’s (CBP) efforts to collect repayment of monetary distributions received under the Continued Dumping and Subsidy Offset Act of 2000 (“CDSOA” or “Byrd Amendment”).  Plaintiffs are affected domestic producers (“ADPs”), which are parties eligible under the CDSOA to receive monetary distributions paid from duties collected under an antidumping duty order (“AD”) order on certain polyester staple fiber (“PSF”) from the Republic of Korea (the “Korea PSF Order”) and an AD order on PSF from Taiwan (the “Taiwan PSF Order”).  Plaintiffs challenge Customs’ actions in issuing four letters demanding payment of amounts Customs characterized as having been disbursed erroneously to plaintiffs.

Because this case arises under the Administrative Procedure Act (APA), the Court must decide whether the actions taken by way of the demand letters were contrary to law under the APA.  The general question of whether the United States is authorized or required by the Constitution or the CDSOA to seek repayment of CDSOA is beyond the claims here, and potentially out of the Court’s subject matter jurisdiction.  Plaintiffs’ claims therefore may not be dismissed. At this stage of the litigation it is difficult to determine the grounds for the agency actions, and the underlying determinations of Customs’ actions.  Therefore, the claims and the litigation must stand pending further investigation and review.  Defendant’s motion to dismiss is denied.  


Sustained Remand Determination Regarding Scope

In Atkore Steel Components Inc. v. United States, Slip Op. 18-94, Court No. 17-00077 (August 3, 2018) before the Court was Commerce’s remand determinations concerning a scope ruling regarding cast iron electrical conduit articles produced by plaintiff. The Court had previously remanded Commerce’s scope determinations that the conduits were subject to an antidumping order and required Commerce to consider factors set forth in 19 C.F.R. § 351.225(k)(1) and (k)(2) such as physical differences between the dumping order and product. On remand, Commerce determined that the product was not subject to the dumping order because Atkore’s product was designed for use in electrical applications, not liquid or gas conveyance as the scope in the dumping order provided. No party raised any objection to the determination and the Court sustained.


Motion to Stay Denied

In Aluminum Extrusions Fair Trade Committee v. United States et. al., Slip Op. 18-96, Court No. 17-00179 (August 8, 2018) before the Court was plaintiff’s motion to stay further proceedings in this action pending final resolution of the litigation in Meridian Prods., LLC v. United States and Whirlpool Corp. v. United States. Plaintiff also requested, should the Court deny the motion to stay, an extension of ten days to file motion for judgment on the agency record. In this case, plaintiff contested a scope ruling issued by Commerce concluding that certain “kayak stabilizer kits” were not within the scope of the antidumping and countervailing duty orders on aluminum extrusions from China. “A decision as to when and how to stay proceedings is within the sound discretion of the trial court.” Id. at 4. The Court denied plaintiff’s motion to stay because the final resolution of the other disputes would not be instructive on any issue in this case. In addition, the Court granted plaintiff’s motion for a ten day extension.