On March 25, 2020, the United States Trade Representative (“USTR”) issued new product exclusions pertaining to the 7.5% Section 301 List 4A Tariffs.  The new list of exclusions includes five 10-digit HTS subheadings and seven specially prepared product descriptions that cover 36 separate exclusion requests.  The full list of excluded products is available here.  According to the USTR, the product exclusions apply retroactively to entries going back to September 1, 2019 and remain in effect until September 1, 2020.  The products affected include medical products, likely in response to the scarcity of those items due to the COVID-19 pandemic.

We encourage clients and companies to review the listed exclusions and contact Husch Blackwell’s International Trade and Supply Chain Team with any questions or concerns.

On March 24, 2020 the New York Field Office of Customs and Border Protection (CBP) issued Informational Pipeline  20-001-NYFO concerning Imports of Pandemic Response Materials in response to increased COVID-19 cases in the greater New York City area and across the nation. The Pipeline indicated that many of these shipments are legitimate, but also noted that other shipments involve “nefarious actors” seeking to profit off of vulnerable segments of the population.

In order to expedite the legitimate COVID-19 response shipments, CBP’s New York Field Office is encouraging importers and their agents to provide advance notification to Customs with respect to these materials. The advance notification is encouraged for all types of pandemic response goods (pharmaceutical products, personal protective equipment, building supplies, etc.) and applies to goods in-transit (in the air or on the water) as well as goods that have already arrived (and especially for arrived goods that CBP has placed on hold).

The Pipeline provides telephone numbers for JFK Airport and the NY/NJ Seaport, but recommends providing the notification via email to the port or to the appropriate Center of Excellence and Expertise and lists email addresses for those contacts as well.

We encourage clients and companies to contact Husch Blackwell’s International Trade and Supply Chain Team with any questions or concerns.

The Court of International Trade (CIT) issued a decision in TR International Trading Co. v. United States (Slip Op. 20-34) on March 16, 2020, stating that if a company wishes to file an appeal under the Court’s residual jurisdiction under 19 U.S.C. §1581(i), then it must first ensure that it has either filed a protest with U.S. Customs and Border Protection (CBP) or requested a scope ruling from the Department of Commerce (Commerce).  One of these two actions must occur before a company seeks judicial review by the CIT.

In the case at hand, Plaintiff TR International Trading Company (TRI) imported citric acid that it sourced from Posy Pharmachem, an Indian company that had manufactured the acid in India. TRI proffered that the acid was from India and that Posy’s processing of the acid constituted a substantial transformation under the new and different product test. At the time of importation, CBP required the posting of antidumping and countervailing duties based upon its belief that the imported citric acid was subject to the antidumping and countervailing duties on citric acid from China. TRI sought an injunction against CBP, challenged the collection of duties under the CIT’s residual jurisdiction outlined in 28 U.S.C. § 1581(i), and sought to have CBP reliquidate the entries without antidumping and countervailing duties.

TRI alleged that (1) CBP assessed the duties based on undisclosed or confidential instructions from Commerce that were arbitrary, capricious, an abuse of power, and without proper procedure, (2) CBP exceeded its authority by determining that the imported citric acid was subject to AD and CVD duties because determinations of what is inside and outside scope are reserved for Commerce, and (3) CBP misapplied Commerce’s liquidation instructions and “disregarded procedural requirements to issue notices of action proposed or action take before liquidating TRI’s entries,” which deprived TRI of the opportunity to present its reasons to CBP to withhold liquidation of the entries.

The Government moved to dismiss TRI’s complaint for lack of subject matter jurisdiction and, alternatively, for a failure to state a claim. The CIT granted the Government’s motion to dismiss for lack of subject matter jurisdiction.

TRI’s entries were filed between July and December of 2017 and identified India as the country of origin. After CBP and TRI exchanged information pursuant to CBP’s information requests, CBP determined that the imported acid was from China, was not substantially transformed in India, and therefore was subject to antidumping and countervailing duties after testing the goods and recommended that TRI obtain a scope ruling from Commerce to challenge the substantial transformation determination. TRI chose instead to directly file an action at the CIT and protested CBP’s liquidation of its entries. One protest was deemed denied and the others were suspended by CBP based on the litigation in the CIT.

19 U.S.C. § 1514(b) gives CBP the authority to determine whether goods are subject to an antidumping or countervailing duty order. TRI had two options before seeking review in the CIT: a CBP protest or a scope ruling from Commerce. In pursuing a protest, TRI could have protested the CBP application of the Citric Acid AD/CVD orders and then sought judicial review under 28 U.S.C. § 1581(a). Or, TRI could have challenged CBP’s country of origin determination by requesting a scope ruling from Commerce, and then sought judicial review under 28 U.S.C. § 1581(c). Neither option is manifestly inadequate, therefore the CIT granted the motion to dismiss.

We encourage clients and companies to contact Husch Blackwell’s International Trade and Supply Chain Team with any questions or concerns.

UPDATED: March 25, 2020 – Several U.S. executive branch agencies along with federal courts are instituting significant operational changes.  These changes have either already been implemented or are anticipated at the U.S. government agencies and courts which manage international trade-related concerns in the coming weeks due to personnel and public safety concerns over the COVID-19 health crisis. Husch Blackwell has provided an agency-by-agency summary below based upon the currently available information with respect to each agency’s status.  The Office of Personnel Management (“OPM”) announced last week, and until further notice, that federal offices nationwide are open but “maximum telework flexibilities” are in place for all eligible employees “pursuant to direction from agency heads.”

Agencies Handling Trade Remedy Proceedings

U.S. Department of Commerce (Commerce) – Commerce has not yet published a formal notice of its operating status; however, it is known that meetings with visitors from outside of the agency have been canceled in the past week.  Additional information relating to Commerce’s status is available here.  Commerce has also issued certain contractor-specific guidance here.

U.S. Department of Commerce, Enforcement and Compliance (E&C)announced that it is temporarily modifying certain requirements for serving documents with business proprietary information in AD/CVD cases through May 19, 2020.  E&C will provide a “Get BPI Releases” link in ACCESS that will make BPI documents available for all APO-authorized lead attorneys and their proxies for a period of 14 days.  Daily BPI Release digest emails will be sent to notify parties when BPI documents are available on ACCESS for viewing.  The announcement encouraged parties to agree to and avail of email service of public documents and public versions in order to facilitate the transition of service of BPI documents through the ACCESS portal.

U.S. International Trade Commission (ITC)The ITC stated that it will continue to be open but will monitor the situation.  The Secretary’s office has communicated with most parties and will accept only electronic filings during this time.  Filings must be made through the ITC’s Electronic Document Information System (EDIS) at https://edis.usitc.gov.  No in-person, paper-based filings or paper copies of any electronic filings will be accepted until further notice.  Limited access will be granted only to visitors who have a statutory matter, and all visitors are restricted to the first floor of the ITC building.  In addition, electronic service of documents containing business proprietary information will be served electronically via the ITC’s electronic portal and similarly any document releases by the ITC containing business proprietary information will be released electronically.

Section 337 Hearings – Administrative law judges (ALJs) have been ordered to postpone any hearings scheduled in the next 60 days.  All discovery will continue and any essential outside participation by staff will be decided on a case-by-case basis.

Title VII (Antidumping and Countervailing Duty) Matters – All antidumping and countervailing duty preliminary phase staff conferences have been cancelled for the next 60 days.  All ITC Title VII votes will be conducted by notation; there will be no in-person vote for the next 60 days.  Regarding hearings for final phase Title VII investigations, five-year (sunset) reviews, and those held under Section 332 and Section 131, the ITC has decided not to hold in-person hearings and interested parties will be invited instead to answer written questions issued by the ITC with certified written responses.

Other Agency Meetings, Seminars and Briefings – All scheduled in-person meetings with outside persons have been cancelled or postponed for the next 60 days.

Agencies Handling Other Customs and Trade Matters

U.S. Trade Representative (USTR) – The Office of the U.S. Trade Representative has offered no updates with respect to its current or future operating status.

U.S. Customs and Border Protection (CBP) – CBP refers users to DHS.gov/coronavirus for information related to the COVID-19 pandemic, where it states that “all air, land and sea Ports of Entry (POEs), CBP Officers (CBPOs) and Border Patrol Agents (BPAs) continue to identify and refer individuals with symptoms of COVID-19 or a travel history to China, Iran, or certain European countries in the past 14 days to CDC or local public health officials for enhanced health screening.”

As has been occurring for several weeks, the rerouting of all flights with passengers, who have recently been in China, Iran, and certain European countries, continues through select airports with established resources, procedures and personnel.  A February 3, 2020 bulletin explained that “[c]rew, and flights carrying only cargo (i.e., no passengers or non-crew), are excluded” from U.S. Department of Homeland Security’s arrival restrictions imposed on February 2, 2020.  It has also been reported that “CBP continues to process cargo at its normal rate as there has been no identified threat as it relates to cargo shipments” and that “vessels or embarked crewmembers or passengers that have recently been in China will have their arrivals fully vetted to safeguard the American public, yet facilitate trade.  This safety protocol is not anticipated to slow down the movement of cargo.”  CBP has cancelled or postponed several upcoming trade conferences, including the 2020 Trade Symposium.

Effective March 21, 2020, the United States and Canada imposed restrictions on “non-essential travel” between the two countries applying mainly for tourism and recreational purposes.  Similar restrictions on non-essential travel between the United States and Mexico also went into effect on March 21.

Duty Deferral Requests – CBP is approving, on a case-by-case basis, requests for extended deadlines to pay duties, taxes and fees due to COVID-19.  See our previous post here.  CBP is also considering a more formal duty deferral policy in response to COVID-19, but none has been announced to date.

Binding Ruling Requests – The CBP National Commodity Specialist Division is still accepting binding ruling requests, but “paper binding ruling requests and requests that include or necessitate a sample may be delayed in processing and/or issuance,” according to CBP’s CSMS message.  Filers are encouraged to use the eRulings website for ruling requests and to include detailed “photographs or short videos of the product to be submitted in lieu of samples,” it said.  “However, we recognize that certain commodities require a sample in order for a determination to be made.  In such cases, delays may occur.  The National Import Specialist assigned to work on your ruling will reach out to you to discuss your options and whether a determination can be made without a sample.”

Agencies Handling Export Controls and Sanctions Issues

U.S. Department of Commerce – The Bureau of Industry and Security (BIS) has not issued a formal notice of its operating status, but does have guidance for Commerce employees posted on its website as noted above.  BIS has announced the cancellation of its Annual Export Control Forum originally scheduled to take place April 1-2, 2020 in Los Angeles.  As of now, BIS’s Annual Update Conference 2020 is still scheduled to take place in Washington, DC on June 29 – July 1.

U.S. Department of the Treasury –Treasury has yet to publish a formal notice of its operating status; however, the “public engagement” schedule for the next several weeks is currently empty, suggesting that all outside meetings have been cancelled.  The Office of Foreign Assets Control (OFAC) has not indicated yet whether its operations have been affected.

U.S. Department of State – The Directorate of Defense Trade Controls (DDTC) has announced that its core functions across its Licensing, Compliance, Policy, and Management continue to operate.  “However, staffing and other adjustments across the Department and interagency are being made” as the agency follows OPM guidance.

  • Licensing activities: All electronic application systems are currently operating as normal, and new licenses continue to be accepted for processing. However, a longer than normal processing time should be expected.
  • Registration, CJ Requests and General Correspondence: These filings via the DECCS system continue and are being processed as they are submitted; responses may be delayed by the current operational environment.

DDTC has established a new option for industry to submit disclosures and related information (e.g., exhibits, extension requests, responses to DTCC inquires) by allowing submissions via email to DTCC-CaseStatus@state.gov.  In the event that a disclosure cannot be submitted via email, DDTC indicates that the continued use of regular U.S. mail is acceptable.

U.S. Census Bureau – The majority of U.S. Census Bureau employees are operating remotely via telework.  During this time, call centers and email inboxes will remain open to assist customers’ daily trade needs.  However, the agency will have limited access to physical mail.  For those companies that are submitting a Voluntary Self-Disclosure (VSD) or data request, please make the submission electronically to the Trade Regulations Branch (TRB) in a password-protected file to emd.askregs@census.gov (for VSDs) or Data User & Trade Outreach Branch (DUTOB) to tmd.outreach@census.gov (for data requests). Additionally, such submissions may be sent to Census’ secure fax at 301-763-8835.

Federal Courts

U.S. Court of International Trade (CIT) – According to the CIT’s statement of March 12, it appears that there have been no adjustments in CIT operations, except as listed below.

  • People who have traveled to China, Iran, Ireland, South Korea, the United Kingdom, or any of the 26 countries located in the Schengen Area of Europe within the last 14 days; reside or have had close contact with someone who has traveled to one of these areas within the last 14 days; have been asked to self-quarantine by any hospital or health agency; or have been diagnosed with, or have had contact with, anyone who has been diagnosed with COVID-19, must inform the court security officers upon entering the courthouse and will be denied permission to enter. Attorneys who are so affected who are scheduled to appear before the CIT in the near future must notify the court so that appropriate safeguard measures can be taken.  Attorneys may appear via teleconference or videoconference with the approval of the presiding judge.  These restrictions will remain in place until further notice.

U.S. Court of Appeals for the Federal Circuit (CAFC) – Per a public advisory notice and an administrative order, the CAFC began restricting public access to the National Courts Building complex on March 16, 2020.  On March 19, the Court issued an updated public advisory stating that all cases scheduled for argument during the April 2020 sitting will now be conducted by telephone conference and no in-person hearings will be held.  Individuals, including pro se litigants and couriers wishing to deliver or to file case documents, must submit these items either by mail or by deposit in the court’s night box.  Mail and third-party commercial deliveries will be limited to the lobby.  Any other deliveries must be coordinated ahead of time with relevant court staff.

U.S. Supreme CourtThe Court announced in an order that out of concern for the health and safety of the public and Supreme Court employees, the Supreme Court Building will be closed to the public effective at 4:30pm on March 12, 2020, until further notice.  The building will remain open for official business, and case filing deadlines have not been extended generally under Rule 30.1, but did address the extension of many filing deadlines in its order.  Oral arguments scheduled for the March session have been postponed.

Shipping containersOn March 23, 2020, Husch Blackwell LLP’s very own Nithya Nagarajan was quoted in Bloomberg Law’s article discussing the impacts of the COVID-19 virus on the Department of Commerce’s accuracy concerning antidumping and countervailing duties. To see the full article, please click here. Due to the travel restrictions, attorneys fear that the Department of Commerce’s verification of manufacturer’s data may be skewed. The calculation of this data is sourced from onsite visits and is vital to providing data that is as accurate as possible. With the ongoing outbreak, and no concrete solution in place, concerns have been raised pertaining to deadlines for cases.

We encourage clients and companies to contact Husch Blackwell’s International Trade and Supply Chain Team with any questions or concerns.

The U.S. Treasury’s Office of Foreign Assets Control (“OFAC”) has recently issued two new General Licenses to extend pre-existing authorizations for transactions with GAZ Group that would otherwise be prohibited under OFAC’s Ukraine- and Russia-related sanctions. General License 15H (“GL 15H”) authorizes certain activities necessary to maintenance or wind down of operations or existing contracts and certain automotive safety and environmental activities with the Russian automotive conglomerate GAZ Group and its 50%-or-greater-owned subsidiaries. GL 15H, which took effect on March 20, 2020, replaces and supersedes GL 15G and extends the deadline for authorized transactions and activities from March 31, 2020 to July 22, 2020. Any company that engaged in transactions under GL 15G should now reference GL 15H instead.

OFAC also issued General License 13N (“GL 13N”), which replaces and supersedes GL 13M. GL 13N authorizes certain transactions necessary to divest or transfer debt, equity, or other holdings in GAZ Group and its 50%-or-greater-owned subsidiaries. As with the other new license, GL 13N took effect on March 20, 2020 and extends the deadline for companies to divest from GAZ Group to July 22, 2020. Any company that engaged in transactions under GL 13M should now reference GL 13N instead.

Anyone relying on either GL 15H or GL 13N should be aware that each General License imposes certain terms and conditions which must be satisfied in order to qualify for their respective authorizations.  Additionally, GL 15H and GL 13N each impose comprehensive and detailed reporting requirements, so persons conducting transactions or activities under GL 15H or GL 13N should document those transactions and activities carefully.

Husch Blackwell continues to monitor the Ukraine- and Russia-related OFAC sanctions and will provide updates as new information becomes available. If you have any questions regarding General Licenses 15H and 13N, or other OFAC sanctions, please contact Cortney Morgan or Grant Leach of Husch Blackwell’s Export Controls & Economic Sanctions team.

On March 20, 2020, the United States Trade Representative (“USTR”) issued new product exclusions pertaining to the 25% Section 301 List 3 Tariffs.  The new list of exclusions includes one 10-digit HTS subheading that covers one exclusion request and 176 specially prepared product descriptions that cover 202 separate exclusion requests.  The full list of excluded products is available here.  According to the USTR, the product exclusions apply retroactively to entries going back to September 24, 2018 and remain in effect until August 7, 2020.  The products affected include auto parts, printed circuit boards, and certain seeds for planting.

The USTR is also seeking comments on the possible exemption of medical goods from the Section 301 tariffs in response to the COVID-19 epidemic. The USTR stated that “each comment specifically must identify the particular product of concern and explain precisely how the product relates to the response to the COVID-19 outbreak.” According to USTR, the docket for submitting comments will remain open until at least June 25, 2020, with the possibility of that deadline being extended.

We encourage clients and companies to review the listed exclusions and USTR’s notice on COVID-19 exclusions and contact Husch Blackwell’s International Trade and Supply Chain Team with any questions or concerns.

Short term case-by-case relief to approved importers:  On Friday, March 20, 2020 at 4:52 PM Customs issued the following message:

Due to the severity of  Novel Coronavirus Disease (COVID-19), U.S. Customs and Border Protection (CBP) will approve on a case by case basis additional days for payment of estimated duties, taxes and fees due to this emergency.  Please note we are working on a future message that will provide further information.  Please watch your CSMS messages.

NOTE:  CBP has confirmed that the March 20, 2020 debit authorizations for the Periodic Monthly Statements and the daily statements have been transmitted to the Department of Treasury.  Please work directly with your financial institution if you wish to prevent these funds from being withdrawn

Requests should be directed to the Office of Trade, Trade Policy and Programs at OTentrysummary@cbp.dhs.gov.

We are advised that companies sending requests for “additional days” are receiving responses from CBP such as the following:

 Thank you for your message.  Yes, you are approved for additional days for payment due to the COVID – 19 emergency.  Please note we are working on a future message that may provide an additional timeframe for payment.  Please watch your CSMS messages. Please let me know if you have any additional questions.

Based on the above CBP Message and anticipated response, our comments and suggestions for companies seeking “additional days” for payment of duties are as follows:

  • CBP does not specify the number of “additional days” in its Message or the response; however, we are advised that for the time being Customs is granting an additional 10 days to specifically approved companies.

 

  • The Message does not specify the information to be provided in the request. At a minimum, companies requesting additional days for payment of duties, taxes and fees owing should include the exact company name and their Importer of Record (IOR) number with the request.  Additionally, it may be prudent to include a brief statement specifying the company’s need for the additional time requested and the harm that the company is currently facing.

 

  • The CBP Message advises companies granted additional days to “work directly with your financial institution.” Even if CBP grants the additional days requested, Customs at this time does not have the ability to stop its automated system from requesting the transfer of funds (duties, fees, taxes) from designated bank accounts for specific companies.  As such, the company responsible for payment of the duties and fees will need to coordinate with its bank (i.e., its financial institution) in advance so that the bank will block incoming funds transfer requests from CBP.  We are advised that CBP’s system normally transmits electronic payment requests three times, so the bank should be prepared to block transfers in response to all three incoming CBP requests.

 

  • CBP’s system automatically generates liquidated damages notices for non-payment and late payment of duties, fees and other amounts owing. Companies receiving “additional days” for payment of amounts owing should expect to receive such notices.  We understand that providing the CBP authorization message to the approved party should be sufficient to cancel any such notices in their entirety (assuming that the amounts owing were fully paid within the extension period).

 

  • The CBP Message covers “estimated duties, taxes and fees.” We are not aware that it provides additional time for the payment of penalties, liquidated damages or other amounts that may be owing CBP.

 

  • We are aware that industry groups have identified different parties for the “additional days” request other than the party identified in the CBP Message (OTentrysummary@cbp.dhs.gov). At this time, we recommend that companies seeking additional days should use the email address specified in the CBP Message.

 

Likelihood of longer term (90-day) relief to the importing community:  In response to ongoing discussions and requests by several trade organizations CBP is considering a 90-day extension that would be applicable to the larger importing community. Essentially, this would align duty payments with the 90-day extension currently granted by the IRS to tax filers.  We expect CBP to issue a Federal Register concerning this broader extension policy in the near future and will provide updates accordingly.

Husch Blackwell is currently monitoring the situation closely and encourages those who may be affected to reach out to us. Our trade lawyers are available to discuss this possibility as it develops and assist with case-by-case requests for relief. Please contact Robert Stang, Cortney Morgan, Nithya Nagarajan or Jeffrey Neeley for further information.

 

 

 

 

U.S. Customs and Border Protection (“CBP”) recently announced two new final determinations that importers of garlic and pipe fittings were evading antidumping and countervailing duties, under the Enforce and Protect Act (“EAPA”).

Title IV, Section 421 of the Trade Facilitation and Trade Enforcement Act of 2015 is commonly referred to as The Enforce and Protect Act of 2015 or EAPA.  EAPA establishes formal procedures for submitting and investigating antidumping or countervailing allegations of evasion against U.S. importers.  U.S. Customs and Border Protection has the responsibility for tracking and reporting allegations of evasion from initial receipt, vetting and enforcement actions, to final disposition of an investigation.  In recent years, CBP has been ramping up use of these enforcement tools, as evidenced by these two recent decisions.  Since the first case was filed in 2016 and to date, CBP has issued fourteen final EAPA determinations, all of which have been found to be affirmative.

In the investigation on IPC International Inc, CBP found that there was sufficient evidence that the garlic importer IPC, illegally avoided antidumping duties on the Antidumping Duty Order on Fresh Garlic from China.  IPC has been under investigations since the allegation was filed by the Fresh Garlic Producers Association in December 2018.  While IPC maintained and claimed that it was eligible for a lower rate based upon the fact that its garlic imports were produced by Jinxiang Zhongtian Business Company and exported by Shijiazhuang Goodman Trading Co., CBP’s site visit seemed to demonstrate otherwise.  CBP stated in its final determination that “[t]he factual record of this investigation provides substantial evi­dence that at least some of the merchandise entered by IPC was not produced by Zhongtian and therefore should have been entered at the duty rate of $4.71 per kilogram,” CBP said. “In the aggregate, this resulted in the loss of tens of millions of dollars in AD duties to the U.S. government.”  As a result of the final deter­mination of evasion, going forward, “CBP will continue to require live entry, which requires that the importers post the applicable cash deposits prior to the release,” of the merchandise.

In another EAPA investigation based upon an allegation by Allied Group that multiple pipe fittings importers illegally avoided and evaded antidumping duties on the Antidumping Duty Order on Certain Carbon Steel Butt-Weld Pipe Fittings from China, CBP once again found that these importers were in fact evading duties.  The pipe fittings case involved six importers: Ductilic, Inc.; Iron Mule Products; Missouri Pipe Fittings; Norca Industrial Company, LLC; Trupply, LLC; and Service Metal Products. The importers were alleged to have “misclassified and/or transshipped through KKFF Bend (Cambodia) Co., Ltd. (‘KKFF Bend’), an alleged producer of butt-well pipe fittings in Cambodia, and falsely declared as being of Cambodi­an origin.”  The case was based upon adverse inferences because the Cambodian entity KKFF Bend did not respond to CBP’s requests for information.  CBP was forced, due to the lack of cooperation by KKFF Bend and importers to make an affirmative finding of evasion.  CBP’s decision indicates that based upon the facts available to it that butt-weld pipe fittings that were imported into the United States were in fact of Chinese origin and transshipped through Cambodia as well as in certain instances misclassified as product other than butt-weld pipe fittings.  As a result, CBP will continue to require live entry and extend the liquidation periods of unliquidated entries, it stated in the decision.

Please contact Husch Blackwell’s International Trade and Supply Chain team if you have any questions or concerns regarding the Enforce and Protect Act.

On March 18, 2020, Petitioner Briggs & Stratton Corporation filed a petition for the imposition of antidumping and countervailing duties on imports of vertical shaft engines between 99cc and 225cc, and parts thereof from the People’s Republic of China.

 

SCOPE OF THE INVESTIGATION

The petitioner proposed the following scope for these investigations:

The merchandise covered by this investigation consist of spark ignited, non-road, vertical shaft engines, whether finished or unfinished, whether assembled or unassembled, whether mounted or unmounted, primarily for walk-behind lawn mowers. Engines meeting this physical description may also be for other non-handheld outdoor power equipment, including but not limited to, pressure washers. The subject engines are spark ignition, single cylinder, air cooled, internal combustion engines with vertical power take off shafts with a minimum displacement of 99 cubic centimeters (“cc”) and a maximum displacement of up to 225cc. Typically, engines with displacements of this size generate gross power of between 1.95 kilowatts (“kw”) to 4.75 kw.

Engines covered by this scope normally must comply with and be certified under Environmental Protection Agency (EPA) air pollution controls title 40, chapter I, subchapter U, part 1054 of the Code of Federal Regulations standards for small non-road spark ignition engines and equipment. Engines that otherwise meet the physical description of the scope but are not certified under 40 CFR part 1054 and are not certified under other parts of subchapter U of the EPA air pollution controls are not excluded from the scope of this proceeding. Engines that may be certified under both 40 CFR part 1054 as well as other parts of subchapter U remain subject to the scope of this proceeding.

Certain small vertical shaft engines, whether or not mounted on non-hand-held outdoor power equipment, including but not limited to walk-behind lawn mowers and pressure washers, are included in the scope. However, if a subject engine is imported mounted on such equipment, only the engine is covered by the scope. Subject merchandise includes certain small vertical shaft engines produced in the subject country whether mounted on outdoor power equipment in the subject country or in a third country. Subject engines are covered whether or not they are accompanied by other parts.

For purposes of this investigation, an unfinished engine covers at a minimum a sub-assembly comprised of, but not limited to, the following components: crankcase, crankshaft, camshaft, pistons(s), and connecting rod(s). Importation of these components together, whether assembled or unassembled, and whether or not accompanied by additional components such as a sump, carburetor spacer, cylinder head(s), valve train, or valve cover(s), constitutes an unfinished engine for purposes of this investigation. The inclusion of other products such as spark plugs fitted into the cylinder head or electrical devices (e.g., ignition coils) for synchronizing with the engine to supply tension current does not remove the product from the scope. The inclusion of any other components not identified as comprising the unfinished engine subassembly in a third-country does not remove the engine from the scope.

The engines subject to this investigation are predominantly classified in the Harmonized Tariff Schedule of the United States (HTSUS) at subheading 8407.90.1010. The engine subassemblies that are subject to this investigation enter under HTSUS 8409.91.9990. The mounted engines that are subject to this investigation enter under HTSUS 8433.11.0050, 8433.11.0060, and 8424.30.9000. Engines subject to this investigation may also enter under HTSUS 8407.90.1020, 8407.90.9040, and 8407.90.9060. The HTSUS subheadings are provided for convenience and customs purposes only, and the written description of the merchandise under investigation is dispositive.

 

PETITIONER

Briggs & Stratton Corporation

3300 N 124th St.,

Wauwatosa, WI, 53222

(414) 259-5333

Contact Name and Title: John Booher, Senior Counsel – Regulatory,

Compliance & Governmental Affairs

Contact Email: booher.john@basco.com

Website: https://www.briggsandstratton.com/

COUNSEL FOR PETITIONERS

Stephen J. Orava

King and Spalding LLP

1700 Pennsylvania Avenue, NW

Washington, DC 20006

(202)-737-0500

NAMED PRODUCERS/EXPORTERS

For a list of foreign products/exporters alleged by Petitioner, please see Attachment I .

NAMED IMPORTERS

For a list of importers alleged by Petitioner, please see Attachment II .

 

ESTIMATED SCHEDULE

Event Earliest Date
Petition Filed March 18, 2020
DOC Initiation April 7, 2020
ITC Preliminary Investigation:
Questionnaires Due April 1, 2020
Request to appear at hearing April 6, 2020
Hearing April 8, 2020
Briefs April 13, 2020
ITC Vote May 4, 2020
DOC Preliminary Antidumping Determination August 25, 2020
DOC Preliminary Countervailing Determination June 11, 2020
DOC Final Antidumping Determination November 9, 2020
DOC Final Countervailing Determination August 25, 2020
ITC Final AD Determination December 23, 2020
ITC Final CVD Determination October 9, 2020

 

ALLEGED DUMPING MARGIN

People’s Republic of China: 466.01%-548.74%

 

ALLEGED SUBSIDIES

The list of the alleged countervailing duty programs is not currently available.  However, Husch Blackwell will continue to monitor and will update this summary when the information becomes available.

 

IMPORTS OF SUBJECT MERCHANDISE

 

2017 2018 2019
China
Quantity(Engines) 504,294 957,6177 650,626
Value ($) 37,212,888 64,796,662 43,796,013
AUV ($/Quantity) 73.79 67.66 67.31

 

CONTACT US

For more information concerning this petition and how it may affect your business, please contact Jeffrey Neeley, Nithya Nagarajan, or Stephen Brophy.