Trade Updates for Week of March 13, 2019

United States Court of International Trade

Motion for Reconsideration Denied

Before the Court in Stupp Corp. et. al. v. United States et. al., Slip Op. 19-30, Court No. 15-00334 (March 7, 2019) was defendant intervenors, SeAH Steel Corporation, motion of reconsideration of the Court’s previous decision sustaining Commerce’s application of its differential pricing analysis in the less than fair value (“LTFV”) investigation of imported welded line pipe from Korea, which resulted in an antidumping order. SeAH argued “Commerce’s differential pricing analysis is merely a policy, necessitating Commerce to, on a case-by-case basis, justify and support with substantial evidence, any factual findings embodied in the Differential Pricing Analysis.” Id. at 3. For the following reasons, the Court denied the motion for reconsideration.

“A court should not disturb its prior decision unless it is manifestly erroneous.” Id. at 4. “Grounds for finding a prior decision to be manifestly erroneous include “an intervening change in the controlling law, the availability of new evidence, the need to correct a clear factual or legal error, or the need to prevent manifest injustice.” Id. at 4-5. The Court said that despite the defendant intervenors many arguments, they had “failed to demonstrate manifest error with the court’s reasoning for sustaining Commerce’s application of the differential pricing analysis” because the Court had applied the correct legal standard to the issue, and no new facts or controlling law had come forward. Id. at 10.

Decision Remanded in Polyethylene Terephthalate Film Case

Before the Court in Jindal Poly Films Ltd. of India v. United States, Slip Op. 19-31, Court No. 18-00038 (March 11, 2019) were challenges to Commerce’s final results in the administrative review of the antidumping duty order on polyethylene terephthalate film, sheet, and strip from India. Plaintiff argued Commerce’s decision to deny Jindal two post-sale price adjustments to its home market sales was contrary to law; Commerce unlawfully failed to issue a supplemental questionnaire to Jindal to seek additional information on the two post-sale price adjustments that Commerce denied; and Commerce violated Jindal’s due process rights by depriving it of an opportunity to meaningfully comment on Commerce’s preliminary results. For the following reasons, the Court remanded the results to Commerce for reconsideration.

Price adjustment is defined as “a change in the price charged for . . . the foreign like product, such as a discount, rebate, or other adjustment, including, under certain circumstances, a change that is made after the time of sale, that is reflected in the purchaser’s net outlay.” Id. at 8.

“Commerce does not accept a price adjustment that is made after the time of sale unless the interested party demonstrates . . . its entitlement to such an adjustment.” Id. The Court said “Commerce’s entire analysis for denying the two post-sale price adjustments is comprised of conclusory statements,” not supported by evidence. Id. at 11. In regards to the supplemental questionnaires, the Court said it could not rule on the issue because Commerce failed to articulate a reason for denying the post sales adjustments. The Court remanded the issues back to Commerce and said because of its remand on the first issue the due process claims were moot.

Reconsideration of Remand Results in Certain Corrosion-Resistant Steel Case

Before the Court in Uttam Galva Steels Ltd. et. al. v. United States et. al., Slip Op. 19-34, Court No. 16-00162 (March 12, 2019) was Commerce’s remand redetermination following an antidumping duty investigation on certain corrosion-resistant steel products from India. Plaintiff Uttam Galva Steels Limited (“Uttam Galva”) initiated this action to challenge the final determination in the antidumping duty investigation, in which the Commerce found that certain corrosion-resistant steel products from India are being, or are likely to be, sold in the United States at less-than-fair value. Plaintiff argued the drawback adjustment made on remand was made moot by the circumstance of sale adjustment to normal value. For the following reasons, the Court remands the results back to Commerce for reconsideration.

“If Commerce finds that merchandise is being sold at less than fair value, Commerce issues an antidumping duty order imposing antidumping duties equivalent to the amount by which the normal value exceeds the export price for the merchandise.” Id. at 4. A duty drawback adjustment is an adjustment to export price by “the amount of any import duties imposed by the country of exportation which have been rebated, or which have not been collected, by reason of the exportation of the subject merchandise to the United States.” Commerce may make certain price adjustments, to “ensure that there is no overlap or double-counting of adjustments.” Id. at 5. The Court said “Commerce’s action on remand here negates the statutory duty drawback adjustment that Uttam Galva earned by exporting its finished product to the United States and impinges on the agency’s ability to make a fair comparison.” As such, the results were remanded again.

Court of Appeals for the Federal Circuit

Solar Panels Country of Origin Test Altered to Reflect Differences in Scope and Harm Alleged

In Canadian Solar, Inc. et al. v. United States, SolarWorld Americas, Inc., plaintiff –appellee, Ct. No. 2017-2577 (March 12, 2019), SolarWorld, initiated the trade remedy investigations from which this appeal arises. The appellants – Canadian Solar, Inc., Changzhou Trina Solar Energy Co., Ltd., Hefei JA Solar Technology Co., Ltd., Shanghai JA Solar Technology Co., Ltd., Yingli Green Energy Holding Company Limited, and Yingli Green Energy Americas, Inc., -- export and or produce the class or kind of merchandise within the scope of the orders. Appellants argued that there should be only one type of origin rule – substantial transformation. However, the Federal Circuit affirmed the Court of International Trade’s decision for the alteration of the origin rule in the investigation before the Courts.

According to the CIT, the classes or kinds of merchandise in Solar I China, Solar I Taiwan, and Solar II China, previous decisions regarding solar cells and modules, laminates, and/or panels, are distinct because the scopes of those orders are distinct. SunPower, 253 F. Supp. 3d at 1287–88. It also found that Commerce had sufficiently explained why it departed from the substantial transformation test in Solar II China. Slip Op., pg. 10 Commerce also provided “good reasons for” departing from the substantial transformation test where such an analysis would be insufficient for determining the country-of origin of this specific product because reliance on that analysis alone would not provide relief to the domestic industry. In these investigations, “Commerce determined that the harm to domestic industry was caused, not by Chinese solar cells or solar panels containing Chinese cells, but by Chinese pricing and subsidization of solar panels assembled in China using non-Chinese cells.” See id. at 14.

Moreover because of the change of the industry practice to source cells from other countries, the industry was circumventing the duties imposed by the orders. That was the reason propounded by the Courts for a change in the country of origin test.