Trade Updates for Week of September 26, 2018

United States Court of International Trade

 

Untimely GSP Claim; Case Dismissed

Before the Court in Industrial Chemicals, Inc. v. United States, Slip Op. 18-126, Court No. 17-00117 (September 24, 2018) was the Government’s motion to dismiss the plaintiff’s claim for lack of subject jurisdiction. Plaintiff claims that sixty-five entries of chemicals from India, imported between August and October of 2014, are eligible for duty free treatment under the Generalized System of Preferences (“GSP”). GSP expired in July of 2013, and was reauthorized by Congress in June of 2015. The reauthorization included a provision allowing for retroactive duty refunds on eligible goods within a 180 day limit. Plaintiff submitted a letter after the 180- day time limit to Customs requesting a refund. Customs returned the letter with a handwritten note saying they could not process the claims because the claim was untimely. Plaintiff then submitted a protest which was denied and bought this case. “The question of jurisdiction turns on whether Plaintiff challenges a protestable decision made by Customs.” Id. at 5. The Court said the protest was invalid “because it was not filed within 180 days of liquidation” because of this “the court does not have jurisdiction over the invalid protest.”  In addition, the Court also said “Customs' refusal to issue the refund, as indicated in the handwritten note, was not a protestable decision.” Id.  Defendant’s motion to dismiss was granted in full.

  

Motion to Dismiss Granted in Steel Nails Case

Before the Court in National Nail Corp. v United States et. al., Slip Op. 18-125, Court No. 18-00053 (September 24, 2018) was Plaintiff’s challenge to Commerce’s final results in the first administrative review of the antidumping order on steel nails from Taiwan. Plaintiff, National Nail, was not party to any of the underlying administrative proceedings conducted by Commerce. Defendant claims because of this the Court lacks jurisdiction.  The plaintiff brought the claim under (i) jurisdiction which is a “residual grant of jurisdiction, and it may not be invoked when jurisdiction under another subsection” was available. Id. at 6. “It is well-settled that (i) jurisdiction is generally unavailable when (c) jurisdiction could have been available,” unless the party is “able to demonstrate that the remedy afforded by (c) jurisdiction would be manifestly inadequate Id. at 8. In this case the Court held, that (c) jurisdiction would have been available to the plaintiff had they participated in the administrative proceedings. In addition, the Court found the financial harm alleged was not a manifestly inadequate remedy based on Federal Circuit precedent. The defendant’s motion to dismiss was granted in full.

  

Scope Determination Regarding Zinc and Nylon Anchors Remanded

Before the Court in Simpson Strong-Tie Company v. United States, Slip. Op. 18-123, Court No. 17-00057 (September 21, 2018) was “another installment in the continuing mystery series, Is It Classified as a Nail?” Id. at 1. Specifically, plaintiffs challenged Commerce’s determination that imported zinc and nylon anchors fall within the scope of the Antidumping Orders on Steel Nails from China. Simpson argued its anchors are not steel nails and therefore, do not fall within the scope of the Orders and that Commerce’s scope determination is unsupported by substantial evidence. For the following reasons the Court finds Commerce’s determination was not in accordance with law.

“The terms of an order govern its scope,” and “if the scope of an order is not ambiguous, the plain meaning of the language governs.” Id. at 9. “Antidumping duty orders “should not be interpreted in a vacuum devoid of any consideration of the way the language of the order is used in the relevant industry.” Id. The Court said a nail, which would fall in the scope of the order, is defined in the dictionary as “a small metal spike with a sharpened end and a blunt head, which may be driven in to a surface with a hammer or other tool in order to fasten things together” and therefore the definition of a nail was unambiguous.  Id. at 10. Simpson descried its merchandise “as zinc or nylon with a shell or body, and a carbon and stainless steel pin.  Based on these definitions the Court said “Simpson’s anchors are not inserted by impact into the materials to be fastened and do not grip by friction in the same manner as a nail.” Id. at 11. Since, the anchors were outside the scope of the order, Commerce’s determinations were remanded for further reconsideration.

 

Reinforcing Bar Determination Sustained

Before the Court in Rebar Trade Action Coalition v United States, Slip Op, 18-122, Court No. 17-00157 (September 20, 2018) were Commerce’s determinations in the first administrative review of the 2014 countervailing duty (“CVD”) order on steel concrete reinforcing bar from Turkey. The coalition challenges Commerce’s findings that the Government of Turkey (“GOT”) did not purchase electricity for more than adequate remuneration, that actual energy purchases were not a countervailable benefit, and that a zero percent margin was applicable to non-selected respondents. For the following reasons Commerce’s determinations were sustained in full. 

The court shall sustain “Commerce’s determinations, findings, or conclusions unless they are unsupported by substantial evidence on the record, or otherwise not in accordance with law.” Id. at 2. Commerce found in its investigation of the electricity market in Turkey that the GOT “administers the system through which the market prices are determined,” and that the GOT “can neither make losses nor earn profits from its activities and does not have cash flow, other than the collection of transmission fees and system utilization charges.” Id. at 5.  The Court said Commerce’s determination was supported by substantial evidence because the agency reasonably certified that GOT did not pay for or set the prices for electricity through questionnaire responses and research. The Court dismissed the coalition’s other arguments regarding the purchasing of electricity saying the plaintiffs had failed to establish direct evidence of payments for electricity. The next issue was Commerce’s determination the purchase of electricity by government affiliated entities under the GOT consumer program was not a subsidy. The Court said the determination was supported by evidence because the record contained proof that the price of electricity was not set by the government but rather were “priced pursuant to contracts negotiated by the public” along with the GOT. Id. at 14-45. Zero percent rates for non-selected respondents, was upheld by the Court because all of Commerce’s other determinations were sustained.