United States Court of International Trade

Slip Op. 21-94

Before the Court in PrimeSource Bldg. Prods., Inc. v. United States, Court No. 20-00032, Slip Op. 21-94 (August 2, 2021) was the government’s motion for partial stay pending their appeal of the judgment entered in PrimeSource Bldg. Prods., Inc. v. United States, Judgment (Apr. 5, 2021), ECF No. 111 (“Judgment”). Id. at 1. The Judgment granted certain relief to PrimeSource, an importer of steel nails, in a challenge to a Presidential action taken under Section 232 of the Trade Expansion Act of 1962, 19 U.S.C. § 1862 (“Section 232”) imposing additional duties of 25% ad valorem on certain imported products made of steel, including steel nails. Id. at 2. For the following reasons, the Court granted the government’s motion for a stay, ordered suspension of liquidation of the entries affected by this litigation, and required PrimeSource and the government to consult to obtain agreement on bonding of entries made on and after April 5, 2021, for protection of the revenue potentially owing due to Proclamation 9980. Id. at 2.

“In exercising its traditional powers to further the administration of justice, a federal court may stay enforcement of a judgment pending the outcome of an appeal.” Id. at 4. “While an appeal is pending from . . . [a] final judgment that grants, continues, modifies, refuses, dissolves, or refuses to dissolve or modify an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party’s rights.” USCIT R. 62(d). Id. at 4-5. The party seeking a stay pending appeal has the burden of showing that the stay is justified by the circumstances. Id. at 5. The Court considers “four factors in deciding whether the movant has met that burden: (1) whether defendants have made a strong showing that they will succeed on the merits; (2) whether they will be irreparably harmed absent the stay; (3) whether issuance of the stay will substantially injure the plaintiff; and (4) where the public interest lies.” Id. In this case, the Court concluded that all four factors supported granting Defendants’ motion to stay. Id. Here, a recent decision by the Court of Appeals for the Federal Circuit (“Transpacific II”) caused the Court to conclude that defendants made a sufficiently strong showing that they will succeed on the merits on appeal, so as to satisfy the first factor. Id. at 6. The Court explained that although Transpacific II and the instant case arose from somewhat different facts, “we nevertheless conclude that the opinion of the Court of Appeals potentially affects the outcome of this litigation. In reaching this conclusion, we do not opine on whether Transpacific II necessarily controls that outcome . . . But for purposes of ruling on the instant stay motion, it is sufficient that the discussion in Transpacific II of the “continuing” nature of Presidential Section 232 authority is expressed in broad terms.” Id. at 9.

Here, “the loss of the authority, provided for by statute and routinely exercised by Customs in every import transaction, to require and maintain such bonding as it determines is reasonably necessary to protect the revenue of the United States” constituted irreparable harm. Id. at 10. Without the requested stay, the Court explained, the judgment that was entered in PrimeSource II would interfere with the exercise of Customs’ authority. Id. at 10. The Court also agreed that a stay of the order to liquidate without Section 232 liability for the entries subject to this litigation and a suspension of the liquidation of those entries pending the appeal was warranted. Id. at 13. Moreover, “denying the government the authority to require such bonding on current and future entries poses a hardship on the United States that, under the statutory scheme designed to ensure adequate protection of the revenue, is unwarranted now that such duty liability is likely to be incurred.” Id. at 14. The Court further noted that “the public interest favors allowing the government to exercise its lawful authority to protect the revenue, and potential revenue, of the United States, which in this case involves a significant amount of potential duty liability.” Id. at 15. As such, the Court granted defendant’s motion for stay pending appeal. Id. 15-16.

Slip Op. 21-98

Before the Court in Changzhou Trina Solar Energy Co., et. al., v. United States, et. al., Consol. Court No. 18-00176, Slip Op. 21-98 (August 10, 2021) was Commerce’s second remand redetermination in the fourth administrative review of the antidumping duty order covering crystalline silicon photovoltaic cells from China, filed pursuant to the Court’s order in Changzhou Trina Solar Energy Co. v. United States, 45 CIT __, __, 492 F. Supp. 3d 1322 (Jan. 4, 2021) (“Changzhou II”). Id. at 2-3. In Changzhou II, the Court remanded Commerce’s decision to value Trina’s international freight expenses using Maersk Line (“Maersk”) rate quotes. Id. at 2. On remand, Commerce abandoned its reliance on Maersk data to value Trina’s international freight expenses, and instead used data from Xenata XS (“Xenata”). Id. at 2. Both Trina and consolidated plaintiffs and plaintiff-intervenors submitted comments agreeing with the Second Remand Results. Id. at 3. For the following reasons, the Court sustained the Second Remand Results as supported by substantial evidence and otherwise in accordance with the law. Id. at 7.

The court will uphold Commerce’s determination unless it is “unsupported by substantial evidence on the record, or otherwise not in accordance with law[.]” 19 U.S.C. § 1516a(b)(1)(B)(i). Id. at 6. “The results of a redetermination pursuant to court remand are also reviewed ‘for compliance with the court’s remand order.’” Id. “When subject merchandise is exported from a nonmarket economy (“NME”) country, Commerce calculates normal value of entries by using data from a surrogate, market economy country (“surrogate country”) at a comparable level of economic development to value the factors utilized to produce the subject merchandise “FOPs”). 19 U.S.C. § 1677b(c)(1).” Id. at 7. Commerce uses “the best available information” to value the FOPs, id., and has discretion to determine what constitutes the best available information. Id. “Commerce generally selects surrogate values that are publicly available, product specific, reflect a broad market average, and are contemporaneous with the POR.” Id. “Because China has an NME, when calculating Trina’s dumping margin, Commerce determined the normal value of Trina’s entries of subject merchandise by using data from a surrogate country to value Trina’s FOPs, including international freight costs.” Id. at 7-8. In this case, the Court found that “Commerce’s analysis and decision to use the Xeneta data were reasonable, supported by substantial evidence, and in accordance with law. Id. at 8. The record supported Commerce’s findings that the Xeneta data is more representative than the Maersk data and covered all of Trina’s routes. Id. at 8-9. Likewise, Commerce’s decision to stop relying on any purported differences in the rates for shipping electronic goods and other nonhazardous and nonrefrigerated goods was reasonable because there was no record evidence that showed any such differences in prices. Id. at 9. Moreover, all parties agreed with Commerce’s determinations in the Second Remand Results and requested that the Second Remand Results be sustained. Id. As such, the Court concluded that Commerce’s Second Remand Results were supported by substantial evidence and complied with the Court’s order in Changzhou II and were therefore sustained. Id.