Court of International Trade
Summary of Decisions
On May 1, 2019, the CIT sustained Commerce’s remand redetermination results following a countervailing duty investigation for certain hot-rolled steel flat products from the Republic of Korea. The court reviewed two issues on remand, Commerce’s selection of the highest calculated AFA rate and Commerce’s corroboration. Concerning the first issued on the selection of the AFA rate, the CIT found that Plaintiff POSCO did not exhaust its administrative remedies. The second issue presented was whether or not the selected 1.05% AFA rate was corroborated based upon substantial evidence and whether Commerce’s selection of a non-de-minimis AFA rate was appropriate because it was a rate calculated for a cooperating Korean company in another countervailing duty proceeding for a similar program.
On May 2, 2019, in the case of garage door openers that were redesigned to avoid infringement on a registered patent, the CIT denied the ITC’s motion for a stay pending appeal based on the grounds that the ITC did not meet its burden for a stay. A stay of the preliminary injunction and all other proceedings in this matter was not warranted as: (1) the ITC has not demonstrated a “strong showing” of likelihood of success on the merits, (2) the ITC has not demonstrated that it will be irreparably injured absent a stay in this action, (3) the issuance of a stay would substantially injure another party, the Plaintiff, and (4) the public interest is neutral. For those reasons, the CIT denied the ITC’s motion for a stay.
On May 9, 2019, the CIT sustained Commerce’s selection of Thailand as the primary surrogate country as well as the valuation of steel to calculate the brokerage and handling costs (B&H). The CIT then remanded Commerce’s calculation of the surrogate financial ratios as related to labor in the U.S. Department of Commerce’s final results in the fourth administrative review of certain steel threaded rod from the People’s Republic of China. Commerce’s decision not to adjust the B&H costs for the costs associated with acquiring letters of credit, and the weight assigned to shipping containers in the calculation of B&H costs were all unsupported by substantial evidence.
On May 14, 2019, the CIT sustained Commerce’s final results of the Redetermination Pursuant to the Court Remand in the case of determining whether or not Plaintiff OMG, Inc.’s zinc anchor products are considered to be nails. It was argued that Plaintiff OMG’s product is simply not a nail “constructed of two or more pieces” because it does not function like a nail and because record evidence demonstrates that anchors like OMG’s are considered a separate type of product from nails by the relevant industry the court sustained Commerce’s Remand Results.
On May 15, 2019, the CIT sustained and remanded certain aspects of the final determinations of the Department of Commerce’s (“Department”) 2015 Administrative Review of the countervailing duty order on off-the-road tires from the People’s Republic of China. Specifically, the CIT remanded the Department’s findings with respect to the adverse inference applied to the Export Buyer’s Credit Program, remanded the Department’s benchmark calculations, and sustained the Department’s decision to countervail the Processing Trade Program.
On May 17, 2019, the CIT sustained the Commission’s final affirmative material injury determination in the antidumping duty investigation of emulsion styrene-butadiene rubber from Brazil, Mexico, the Republic of Korea, and Poland. The CIT concluded that 1) the Commission’s findings regarding the volume of subject imports was supported by substantial evidence, 2) the Commission’s findings regarding price effects was supported by substantial evidence and in accordance with the law, 3) the Commission’s findings regarding the impact of subject imports was supported by substantial evidence and in accordance with the law, and 4) whether the Commission’s determination that Poland was not a negligible source of the subject imports was supported by substantial evidence and in accordance with the law.
On May 20, 2019, the CIT granted Plaintiff POSCO’s motion for reconsideration and remanded Commerce’s final results in the countervailing subsidy investigation of certain carbon and alloy steel cut-to-length plate from Korea. The CIT remanded to Commerce the issue of whether, under the first step of the AFA methodology, a program identical to the assistance received by Nine-Digit and Ricco Metal existed and denied POSCO’s motion to reconsider the application of AFA to Hyundai and the attribution of that rate to POSCO.
On May 21, 2019, in the first administrative review of oil country tubular goods from the Republic of Korea, the CIT denied both motions from Plaintiff SeAH Steel Corporation and the Defendant-Intervenors for consideration. Plaintiff SeAH’s motion for reconsideration argued that the court’s decision contained manifest errors, however the court denied their motion on the grounds that, “SeAH fails to demonstrate that there is manifest error with the court’s reasoning and repeats the same arguments evaluated by the court previously.” The court also denied the Defendant-Intervenors’ motion for reconsideration citing that their proposed revisions to the remand instructions essentially mirrored the Government’s previous broad request for a voluntary remand on the particular market situation issue. The court expressed concern that the Government’s request amounted to a “do-over” and constituted an impermissible attempt to rationalize the agency’s actions after the fact.
On May 22, 2019, the CIT sustained the U.S. Department of Commerce’s remand results on the administrative review of the antidumping duty order on certain crystalline silicon photovoltaic products from Taiwan. Because, SAS-Solartech did not challenge the Remand Results and both Plaintiff and the Defendant Intervenors waived any objections by declining to submit comments on the Remand Results, the CIT sustained Commerce’s Remand Redetermination.
On May 24, 2019, the CIT ordered a reconsideration of determination in the administrative review on the antidumping duty order on off-the-road tires from the People’s Republic of China. The eight plaintiffs present in the case contested that the order issued by Commerce concerning the rates they received were incorrect. Of the eight plaintiffs, six of the plaintiffs received a rate of 33.14%, while the rest received the China-wide rate of 105.31%. The CIT ruled that the determination was contrary to law in certain respects and remanded the determination to Commerce for appropriate corrective action for each of the eight plaintiffs.
Court of Appeals for the Federal Circuit
On May 2, 2019, in the tariff classification case involving imported sausage casings, Kalle USA, Inc. appealed the Court of International Trade’s summary judgment decision classifying the casings as made-up textiles under subheading 6307.90.98 of the Harmonized Tariff Schedule of the United States. Plaintiff Kalle argues that the CIT erroneously interpreted the phrase “completely embedded in plastics” as it is used in HTSUS Chapter 59 Note 2(a)(3), and that the casings should be classified as plastics under HTSUS Chapter 39. The Federal Circuit concluded that Plaintiff Kalle’s proposed interpretation failed to offer meaningful effect to the inclusion of “completely embedded” and failed to distinguish between an “impregnated” fabric and a “completely embedded” fabric, the Court declined to adopt it. Ultimately, the Court found Kalle’s remaining arguments unpersuasive and Kalle’s Nalo-Protex G1 and G2 casings were not “completely embedded in plastics” as that phrase is used in HTSUS Chapter 59. The Federal Circuit agreed with the CIT Trade Court’s decision to classify the casings under HTSUS subheading 6307.90.98.
On May 8, 2019, Appellant Sumec NA, Inc., dba Sumec North America (“Sumec”), a U.S. importer, appealed the CIT’s decision in the antidumping duty case of Crystalline Silicon Photovoltaic Cells, Whether or not Assembled into Modules, from the People’s Republic of China and sued Appellee the United States (“Government”) in the U.S. Court of International Trade (“CIT”), challenging the U.S. Department of Commerce’s (“Commerce”) liquidation instructions. Sumec filed a motion for a preliminary injunction to enjoin the Government from liquidating certain entries, and the CIT issued an opinion and order denying Sumec’s Motion. The CAFC concluded that the CIT did not abuse its discretion in denying Appellant Sumec’s motion for a preliminary injunction on the grounds that Sumec hadn’t demonstrated that it would be irreparably harmed absent immediate relief in the form of a preliminary injunction. The CAFC also found that the CIT did not commit legal error in determining that the availability of reliquidation means that Sumec failed to demonstrate irreparable harm.
On May 16, 2019, Plaintiff Sunpreme Inc. appealed from the final decision of the United States Court of International Trade in favor of the United States and SolarWorld Americas, Inc., concluding that Sunpreme’s solar modules are covered by the scope of the antidumping and countervailing duty orders on U.S. imports of certain solar cells from the People’s Republic of China. The United States and SolarWorld cross-appealed from the same decision, which also concluded that Commerce could not instruct United States Customs and Border Protection to continue suspending liquidation of Sunpreme’s solar modules entered or withdrawn from warehouse for consumption before the scope inquiry was initiated. Because the CAFC agreed with the Court of International Trade that Commerce’s final scope ruling is supported by substantial evidence and that Commerce cannot continue a suspension of liquidation that Customs lacked authority to implement in the first place.
This article was published by Husch Blackwell in the monthly Trade Law Newsletter. To read the full May Trade Law Update click here.