Trade Updates for Week of September 11, 2019

United States Court of International Trade

19-116

Before the Court in Nexteel Co. et. al. v. United States et. al., Slip Op. 19-116, Court No. 17-00091 (September 4, 2019) were remand redeterminations, made pursuant to a previous Court order, concerning the administrative review of the antidumping order on oil country tubular goods (“OCTG”) from the Republic of Korea. The remand redeterminations dealt with three issues, (1) Commerce’s finding of a particular market situation, (2) Commerce’s classification of proprietary products of plaintiff, SeAH Steel, (3) Commerce’s decision to deduct SeAH’s general and administrative expenses as selling expenses. For the following reasons, the Court sustained in part and remanded in part.

The first issue the Court dealt with was the finding of a particular market situation. Initially, “Commerce did not find the existence of a particular market situation in its preliminary results, but later relied on the same administrative record to reverse its position and conclude that a particular market situation existed in the final results.” Id. at 5. On remand, Commerce recalculated the dumping margin, without the particular market situation adjustment for plaintiffs, SeAH and NEXTEEL, as well as non-examined companies. The Court said the determination was “consistent with the Court’s remand order and opinion.” Id. at 7.  The next issue was Commerce’s classification of SeAH’s proprietary products. During the investigation Commerce, combined SeAH’s proprietary OCTG under reporting code 075 with reporting code 080, the Court remanded for explanation. On remand, the agency “explained that the model match methodology used to determine dumping margins in this action contained a hierarchy of criteria designed to reflect differences between products, and that Commerce ranked those differences in order of importance.” Id. at 8. The Court concluded the determinations were based on substantial evidence. The final issue was Commerce’s decision to deduct SeAH’s general and administrative expenses as selling expenses. Previously, “Commerce deducted general and administrative (“G&A”) expenses from constructed export price (“CEP”) related to resold United States products for SeAH’s U.S. affiliate.” Id. at 11. The Court had previously remanded Commerce’s decision as unsupported by substantial evidence. On remand, Commerce explained that “Commerce did not apply all of the affiliates G&A expenses to directly resold products” and Commerce allocated the affiliates G&A expenses proportionally to all of the products sold.  The Court said “Commerce’s explanation on remand does not explain adequately what evidence specifically supports the treatment of G&A expenses as selling expenses or why Commerce may treat G&A expenses as selling expenses,” and remanded for further consideration.  Id. at 13-14.

19-117

Before the Court in American Cast Iron Pipe Co. et. al. v. United States, Slip Op. 19-117, Court No. 19-00083 (September 4, 2019) was a motion for a preliminary injunction, in an action contesting Commerce’s final determination in an antidumping duty investigation on large diameter welded pipe from the Republic of Korea. Plaintiffs requested a preliminary injunction, to enjoin the government from causing or permitting liquidation of certain unliquidated entries of welded pipe from Korea that are subject to the final determination.

To succeed on a motion for an injunction a moving party must demonstrate “(1) that it will be immediately and irreparably injured; (2) that there is a likelihood of success on the merits; (3) that the public interest would be better served by the relief requested; and (4) that the balance of hardship on all the parties favors the petitioner.” Id. at 4. “No one factor, taken individually is necessarily dispositive.” Id. at 4. In regards to the injury, the Court noted that the threat of injury does not need to be imminent. The Court said “liquidation would permanently deprive plaintiff of its ability to challenge the rate with regard to affected entries,” and found this factor weighed in favor of the injunction. In regards to the likelihood of success on the merits, the Court noted “in the face of irreparable harm, plaintiff’s burden to show likelihood of success on the merits is lessened.” Id. at 8.  The Court said “neither party has discussed the merits of the case, the Court will assume that this is a normal unfair trade case in which there are close, difficult issues that may be resolved in either party’s favor.” Id. at 8-9.  In regards to the public interest, the Court said “the public interest is best served by the accurate assessment of duties,” which weighed in favor of the plaintiff. Id. at 9. The final factor was the balance of hardships, the Court said “suspension of liquidation is at most an inconvenience to the government … as it will ultimately collect the full amount owed with interest and in the meantime will collect cash deposits at the rate,” this factor weighed in favor of plaintiff. Id. Overall three of the four factors weighed in favor of the injunction and the Court granted the motion.

19-118

Before the Court in Sumecht NA, Inc. v. United States et. al., Slip Op. 19-118, Court No. 17-00244 (September 6, 2019) was a case of first impression involving a challenge to Commerce’s late publication of a Timken Notice after the statutory deadline had passed, which applied a change in antidumping duty deposit rates retroactively from the antidumping investigation of Crystalline Silicon Photovoltaic Cells from the China. “A Timken Notice is a notice issued by Commerce if this Court or the U.S. Court of Appeals for the Federal Circuit renders a decision that is not in harmony with Commerce’s prior determination.” Id. at 2. In this case, Commerce was supposed to publish a Timken Notice by October 15, 2015, but failed to do so. Commerce published the Timken Notice on November 23, 2015 setting a retroactive date for the changed antidumping duty rate to October 15, 2015. Plaintiff alleged that Customs unlawfully assessed duties by the retroactive application of the China-wide entity rate to merchandise that entered after the Court’s decision of October 5, 2015 but before the publication of the Timken Notice.   The Court examined whether Commerce’s decision to retroactively set the effective date of the Timken Notice was not in accordance with law. For the following reasons, the Court granted Plaintiff’s motion for judgement on the agency record.

“Under 19 U.S.C. § 1516a(c), Commerce must publish a notice of a decision by the United States Court of International Trade or United States Court of Appeals for the Federal Circuit that is not in harmony with Commerce’s previous determination. The statute directs that such notice of a decision shall be published within ten days from the date of the issuance of the Court decision.” Id. at 10. “Under 19 U.S.C. § 1516a(c)(1), subject merchandise is liquidated in accordance with Commerce’s determination until the date of publication in the Federal Register of notice of a Court decision not in accordance with the underlying determination.” Id. at 13 The Court said “Commerce’s untimely notice was not in accordance with Commerce’s statutory obligation under 19 U.S.C. § 1516a(c) to issue notice within ten days of a Court decision not in harmony with its prior determination” and found “Commerce’s failure to publish notice within ten days of a triggering Court decision pursuant to 19 U.S.C. § 1516a(c)(1) was not in accordance with law.” Id. at 12.    The Court concluded “plaintiff’s entries that were entered, or withdrawn from warehouse, for consumption on or before the date of Commerce’s Timken Notice publication in the Federal Register on November 23, 2015 were entitled to a rate in accordance with Commerce’s prior determination.” Id. at 13. The Court also found that Commerce’s unlawful delay was not harmless error because Plaintiff’s entries were subject to liquidation at the significantly higher rate.