United States Court of International Trade

New Shipper Review Decision Remanded

 In Huzhou Muyun Wood Co. v. United States Slip Op. 17-162, Court No. 16-00245 (December 11, 2017) the court reviewed Commerce’s determination to rescind plaintiff’s request  for a new shipper review. In June 2015, plaintiff requested a review under an antidumping duty on multilayered wood floors. One week before the close of review period, Commerce requested data, about other exporters, from plaintiff. Plaintiff requested a time extension for Commerce to explain the data’s role in the investigation. This request was denied by Commerce and the review was rescinded because Commerce concluded that plaintiff had not made bona fide sales. Plaintiff raised two issues in this action, that Commerce abused its discretion in placing data on the record without clarifying its use, and that there was not substantial evidence for Commerce to conclude plaintiff’s sales were not bona fide. For the following reasons the Court agreed with plaintiff and remanded the issue to Commerce for reconsideration.

The first issue was if Commerce abused its discretion by placing data in the review a week before its conclusion, and by failing to explain to plaintiff what role the data will play in any of Commerce determinations. “Parties are permitted one opportunity to submit factual information to rebut, clarify, or correct factual information placed on the record of the proceeding by the Department.” Id. at 15. The Court believed that because of Commerce’s late request and failure to explain the use of the data, plaintiff was not presented with any of these required opportunities. The next issue was if there was substantial evidence for Commerce to conclude that plaintiff’s sales were not bona fide. Commerce evaluates six factors in deciding if a sale is bona fide.  Commerce found the sales not bona fide because of a price discrepancy, submitted data, and late payment from a customer. The Court concludes the use of this data and the late payment was unsupported by evidence and needed to be further explained by Commerce on remand.

Commerce Decision Remanded in Part

In GGB Bearing Technology Co., LTD. and Stemco LP, v. United States Slip. Op. 17-164, Court No. 12-00386 (December 12, 2017) the Court reviewed Commerce’s determinations made in a new shipper review of plaintiff under a 1987 antidumping order on tapered roll bearings from China. In 2011, plaintiff’s requested a new shipper review to receive a different antidumping margin. Since plaintiffs were based in the non-market economy of China, Commerce used surrogate values to calculate a 12.64% weighted dumping margin. Plaintiffs argued two main issues involving the surrogate selection. These were that the Commerce erred in choosing appropriate Thai companies for surrogates and that Commerce erred in choosing Thailand as a surrogate as opposed to other countries. For the following reasons the Court upheld Commerce’s determination in part and remanded in part.

The first main issue plaintiffs argued was that the Thai surrogate companies received a subsidy from the Thai government that made them unfit to be surrogates. Specifically at issue is whether the NSK financial statement may have been distorted by countervailable subsidies. The Court examined the Thai Investment Protection Act and its application to surrogate companies and found it reasonable for Commerce to conclude the surrogates did not receive a subsidy and that no financial data was distorted.

Plaintiffs also argued that manufacturing wage data from the Philippines and Ukraine were more accurate than those from Thailand for purposes of valuing GGB’s labor costs. 19 U.S.C. § 1677b(c)(1) requires Commerce to use the best available information to choose financial data from surrogate countries.  The Court held in this case, because Commerce had not determined “the Philippines and Ukraine were, or were not, significant producers of comparable merchandise” the surrogate country decisions was not made on the best available information. The Court remanded the case back to Commerce to determine if the Philippines and Ukraine are better surrogates and if so a determination on the best available information from their industries.

Sustained Remand Results

In Shenyang Yuanda Aluminum et. al. v. United States Slip Op. 17-163, Court No. 14-00106 (December 11, 2017) the Court reviewed a scope ruling made in a remand determination concerning Commerce’s antidumping and countervailing duty investigations on aluminum extrusions from the People’s Republic of China. Plaintiffs challenged Commerce’s determination that an aluminum curtain wall, imported in individual parts, was within the scope of the investigations. “Plaintiffs argued that curtain wall units, imported under a supply contract for a complete curtain wall, were partially assembled subassemblies of a complete curtain wall, and therefore excluded from the Orders as a finished goods kit.” Id. at  5. Commerce determined that the “entries failed the subassemblies test because … documents show that the individual curtain wall units do not contain all parts necessary to install them.” Id. at 7. Commerce identified additional finishing procedures required before the curtain walls could be installed, and thus the subject product failed the subassemblies test. The Court was unpersuaded by any of plaintiff’s arguments and agreed with Commerce.