Trade Updates for Week of September 19, 2018

United States Court of International Trade


Sustained Results in Frozen Fish Filets from Vietnam

Before the Court in An Giang Fisheries Import and Export Joint Stock Company et. al. v. United States et. al., Slip Op. 18-118, Court No. 16-00072 (September 12, 2018) were Commerce’s remand redeterminations in the eleventh antidumping administrative review of certain frozen fish filets from Vietnam. The Court had previously reviewed Commerce’s determinations and sustained the use of the adverse facts available (“AFA”) against respondents in the investigation. However, the Court did remand Commerce’s determination regarding the agency’s “decision to adjust the denominator and not the numerator when calculating Hung Vuong Group’s (“HGV”) farming factors of production” for explanation. Id. at 2. On remand, Commerce explained that the agency “first divided the farming FOP numerators … by the reported production quantity of harvested whole live fish.” 7. “Commerce then multiplied the resulting farming FOPs by the shank equivalent conversion factor so they would be on the same basis as the U.S. price.” Id. The Court sustained the results holding Commerce complied with the remand requirements.


Trial Ordered in Ziploc Plastic Bags Case

Before the Court in S.C. Johnson & Son, Inc. v. United States, Slip Op. 18-118, Court No. 14-00184 (September 14, 2018) were cross motions for summary judgment with respect to the proper tariff classification of Ziploc plastic bags. Plaintiff argued the Ziploc bags were properly classified under HTSUS Subheading 3924.90.56, which covers: Tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics, with an applicable duty rate of 3.4% ad valorem. This heading was eligible for duty free entry under the Generalized-System of Preferences (“GSP”). Customs argued the merchandise was properly classifiable under HTSUS Subheading 3923.21.00, which covers: Articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics. This heading was not eligible for duty free treatment under GSP. For the following reasons the Court denies the motions for summary judgment.

“The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (“GRIs”) … applied in numerical order.” Id. at 6. GRI 1 instructs that, “for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes … construed according to their common and popular meaning.” Id.  Plaintiffs argued that SGI, Inc. v. United States, 122 F.3d 1468 (Fed. Cir. 1997) required the bags to be classified as “various household containers for food.” Id. at 11. However, the Court said this case was different because the precedent focused on the six digit tariff classification while this case still compared classifications at the four digit level.  However, the Court did conclude “HTSUS Heading 3924 is an eo nomine provision that encompasses plastic goods of or relating to the house or household.”  The Court did not consider the issue further because “genuine issues of material fact remain unresolved” regarding the bags’ principal use. The court will hold a trial on these issues.


Upheld Remand Results in Xantham Gum Case

Before the Court in CP Kelco US, Inc. v. United States et. al, Slip Op. 18-120, Court No. 13-00288 (September 17, 2018) were Commerce’s determinations on the fourth remand of the final results of the antidumping investigation of xanthan gum from China.  The Court had previously remanded to investigation results numerous times for Commerce to explain the agency’s rejection of a specific Thai company as a surrogate. On this remand, Commerce used the rejected data in order to calculate dumping duties for respondents. The antidumping duty rate dropped from 8.69 percent to 0 percent. The Court said the remand determinations were in accordance with the Court’s previous orders and upheld the results.