Trade Updates for Week of November 28, 2018

United States Court of International Trade

18-161

Before the Court in Northern Tool and Equipment Company, Inc. v. United States, Slip Op. 18-161, Court No. 14-00146 (November 23, 2018) were cross motions for judgment in an action based on Customs’ denial of a protest contesting the amount of antidumping duties owed on hand trucks imported from China. In a 2004 antidumping order, Commerce had instructed Customs (“CBP”) to require cash deposits for hand trucks produced or exported by Taifa, a Chinese manufacturer equal to the specific weighted-average antidumping duty margin of 26.49 percent. This rate was different than the China wide rate calculated during the review.  Plaintiff imported hand trucks from China through the use of numerous different companies and ultimately identified Taifa as the manufacturer. However, CBP found Taifa was the producer of the goods but that another company, ITI, was the exporter of the hand trucks. As such, antidumping duties at the China-wide entity rate were assessed on Northern Tool’s entries. For the following reasons the Court sustained CBP’s determinations in full.

Northern Tool argued this case concerned the denial of its protest by CBP and jurisdiction was proper under 28 U.S.C. §1581(a). The Government argued the Court lacks jurisdiction because CBP’s actions were merely ministerial. The Court found there was jurisdiction “to review whether CBP correctly applied Commerce’s liquidation instructions with respect to Northern Tool’s entries.” Id. at 7. The Court said that it “does not perceive clear error in CBP’s analysis and consideration of the commercial documents that support its finding.” Id. at 8. The Court said, that ultimately jurisdiction did not lie over what Northern Tool was seeking, to establish that ITI was not the exporter and that the relevant entries should not be subject to the China-wide entity rate. The “ultimate decision of which instruction applied to a particular circumstance rested with Commerce,” who was not part of this case. Id. at 9.

 18-162

Before the Court in New Mexico Garlic Growers Coalition et. al. v. United States et. al., Slip Op. 18-162, Court No. 17-00146 (November 26, 2018) was Commerce’s final results and partial rescission of the 21st administrative review of the antidumping duty order on fresh garlic from China. During the review, Commerce selected two Chinese companies to be mandatory respondents, QTF and Harmoni, based on a request received by the agency including one from the New Mexico Garlic Growers Coalition (“NMGGC“). Commerce initially applied the adverse facts available (“AFA”) to both companies for failing to cooperate and for making misrepresentations in the investigation. In the final results, Commerce dropped Harmoni as a respondent because the request against the company was illegitimate. Commerce determined that some of the six companies with which QTF was affiliated were part of the China-wide entity and, therefore, denied QTF a separate rate, finding that it was part of the PRC-wide entity and subject to the China-wide rate. For the following reasons Commerce’s determinations were sustained in full.

“In antidumping duty proceedings involving a nonmarket economy country … Commerce presumes all respondents are government-controlled and therefore subject to a single country-wide rate.” Id. at 8.  “A respondent may rebut that presumption and obtain a separate antidumping duty rate by demonstrating the absence of … government control over its export activities. Id. The Court sustained Commerce’s determinations that QTF was not entitled to a separate rate because “Commerce properly determined that QTF’s misrepresentations rendered the entirety of its submissions unreliable when the information it withheld included the identity of its affiliates, at least some of which are part of the PRC-wide entity.” Id. at 24. The Court also sustained Commerce’s decisions to apply the AFA against QTF and to collapse QTF with affiliated entities.

The antidumping statue is silent on the rescission of request for reviews. However, Commerce’s regulations provide that the rescission of a review is allowed within 90 days of the date of publication or if reasonable to do so. Commerce initially certified the review request from NMGGC but elected to rescind the request after allegations of fraud arose against the NMGGC’s attorney. NMGGC argued that because the statute was silent, the review could not be rescinded. The Court found that Commerce’s regulations were valid because “Commerce’s interpretation of a review … is a reasonable interpretation of the statute.” Id. at 39.  The Court also found Commerce’s factual findings and credibility determinations regarding the fraud were supported by substantial evidence because Commerce cited email exchanges, and detailed information on the record.