New Antidumping\Countervailing Cases (and reinstatement of AD Order)

On December 19, 2014, U.S. Department of Commerce (“Commerce”) announced that it was terminating the agreement suspending the antidumping (“AD”) investigation on certain hot-rolled flat-rolled carbon-quality steel products from the Russian Federation; that it was rescinding the 2013-2014 administrative review of the agreement; and issuing an AD order on hot-rolled steel products from the Russian Federation.  See Termination of the Suspension Agreement on Hot-Rolled Flat-Rolled Carbon-Quality Steel Products From the Russian Federation, Rescission  of 2013-2014 Administrative Review, and Issuance of Antidumping Duty Order, 79 Fed. Reg. 77,455 (Dec. 24, 2014) (“Termination\Issuance of AD Order”).  Commerce directed the suspension of liquidation to begin on December 19, 2014. Id.

By way of background, Commerce initiated an AD investigation on imports of hot-rolled steel from the Russian Federation in October 1998.  See Initiation of Antidumping Duty Investigations; Certain Hot-Rolled Flat-Rolled Carbon-Quality Steel Products from Brazil, Japan, and the Russian Federation, 63 Fed. Reg. 56607 (Oct. 22, 1998).  In November 1998, the ITC preliminary determined that there was a reasonable indication that an industry in the United States was threatened with material injury by reason of imports of the subject merchandise from the Russian Federation.  See Certain Hot-Rolled Steel Products From Brazil, Japan, and Russia, 63 Fed. Reg. 65,221 (Nov. 25, 1998).  Following Commerce’s affirmative preliminary determination (64 Fed. Reg. 9312 (Feb. 25, 1999)), Commerce and the Ministry of Trade (“MOT”) of the Russian Federation signed an agreement suspending the AD investigation on hot-rolled steel from the Russian Federation.  See Suspension of Antidumping Duty Investigation: Hot-Rolled Flat-Rolled Carbon-Quality Steel Products From the Russian Federation, 64 Fed. Reg. 38,642 (Dep’t Commerce July 19, 1999).  (The MOT was the predecessor to the Economy Ministry, which is now the relevant agency representing the Government of the Russian Federation for purposes of this Agreement.)  With the suspension, the MOT agreed to restrict exports of hot-rolled steel from all Russian producers/exporters to the United States and to ensure that such exports were sold at or above the agreed reference prices.  Upon the request of the petitioners in this proceeding, the antidumping investigation was continued.  In July/August 1999, both Commerce and the ITC made affirmative final determinations.  See Final Determination of Sales at Less Than Fair Value: Hot-Rolled Flat-Rolled Carbon-Quality Steel Products From the Russian Federation, 64 Fed. Reg. 38,626 (July 19, 1999); Certain Hot-Rolled Steel Products From Brazil and Russia, 64 Fed. Reg. 46,951 (ITC Aug. 27, 1999).  In its Final Determination, Commerce calculated weighted-average dumping margins of 73.59 percent for Joint Stock Company (“JSC”) Severstal, a respondent company in the investigation, and 184.56 percent as the Russia-wide rate.  Id.

In 2012, domestic hot-rolled steel producers, including ArcelorMittal USA (represented by Paul Rosenthal, Alan Luberda and Kathleen Cannon), argued to the Commerce Department that the reference pricing mechanism in the Suspension Agreement did not achieve its statutory purpose of preventing the suppression or undercutting of price levels of domestic hot-rolled steel and sought its termination or modification.   After negotiating with the Russian Economic Ministry, the Department reached a revised Suspension Agreement with the Russian Government that modified the base reference price and pricing adjustment mechanism for Russian hot-rolled steel.   On July 10, 2014, ArcelorMittal again joined with other companies in the domestic industry in challenged the efficacy of the revised suspension by filing a submission with Commerce alleging that the revised Agreement had continued to prevent  the suppression or undercutting of price levels of domestic producers by imports of hot-rolled steel from the Russian Federation, contrary to its terms.   The domestic industry requested that the Department terminate the agreement and impose antidumping duties on imports of hot-rolled steel from the Russian Federation.  SeeTermination\Issuance of AD Order, 79 Fed. Reg. 77,455 (Dec. 24, 2014).  On October 17, 2014, Commerce issued a letter to the Economy Ministry stating that it had made a final decision to exercise its option under Section X.C of the Agreement to terminate the Agreement, effective in 60 days.  Id.  On October 27, 2014, Commerce clarified, by letter to the Trade Representative, that it considered the official date of notification to the Economy Ministry to be October 20, 2014 (i.e., the date the Economy Ministry received the notification), making the effective date of termination of the Agreement to be December 19, 2014.  Id.  Therefore, in accordance with section 735(c) of the Act, Commerce issued an AD order and instructed U.S. Customs to suspend liquidation of entries of subject merchandise, effective December 19, 2014.

Sugar

Commerce initiated antidumping (“AD”) and countervailing duty (“CVD”) investigations of imports of sugar from Mexico in April 2014.  On December 19, 2014, Commerce announced that it signed agreements to suspend the AD and CVD investigations of imports of subject merchandise from Mexico.  The agreements immediately suspended both the AD and CVD investigations; allowed Mexican sugar to enter the U.S. market free of AD and CVD duties; and “create mechanisms to ensure that imports of Mexican sugar do not injure the U.S. sugar industry while enabling U.S. sugar consumption needs to be met Commerce.”  SeeDec. 19, 2014 Commerce News Release.  These agreements contain provisions which “include reducing the amount of refined sugar that Mexico can ship to the United States, increasing the floor prices below which Mexico cannot sell into the U.S. market, and making it harder for parties other than the signatories to automatically terminate the agreements.” See Inside U.S. Trade, “Final Suspension Deals Limit Refined Sugar, Raise Bar For Termination” (Dec. 24, 2014).  On January 8, 2015, two U.S. refiners that import raw sugar (Imperial Sugar Company and AmCane Sugar) filed petitions with the United States International Trade Commission (“ITC”) to investigate whether the suspension agreements actually removed the injury to the domestic sugar industry.  See Inside U.S. Trade, “Imperial, AmCane Seek to Kill Mexico Sugar Deal With Rare ITC Petitions” (Jan. 8, 2015).  If the ITC were to find the suspension agreements failed to remove the injury, the AD and CVD investigations would then be resumed.  Id.  On January 16, 2015, both companies also filed requests with Commerce to continue the underlying trade cases as a potential way to end the current suspension agreements or push for them to be renegotiated.  See Inside U.S. Trade, “Imperial, AmCane Seek to Kill Mexico Sugar Deal With Rare ITC Petitions” (Jan. 20, 2015).  The Jan. 16, 2015 requests to Commerce “effectively serve as a fail-safe in the event that the ITC -- after conducting its review of the suspension agreements as requested -- finds that they comply with the law and therefore can stand.”  Id.   

On January 21, 2015, the ITC instituted reviews of the agreements suspending the antidumping duty and countervailing duty investigations of sugar from Mexico.  Parties will have the opportunity to file two written submissions in these reviews.  The first submission may contain any factual information pertinent to the determinations that the Commission is required to make pursuant to sections 704(h) and 734(h) of the Act and arguments concerning the significance of this information, or information in the record of the preliminary phase investigations of Sugar from Mexico, Inv. Nos. 701-TA-513 and 731-TA-1249 (Prelim.).  The second submission should respond to arguments and information submitted in the first submissions as well as other information in the record.  The first submission is due February 10, 2015, and the second submission by February 26, 2015.  The ITC will convene a proceeding on Thursday, February 19, 2015, at 9:30 am at 500 E Street, SW, Washington, D.C., to receive oral presentations from parties to the reviews.  The Commission will provide further information about the nature of this proceeding to the parties at a later date. 

Crystalline Silicon Photovoltaic Products from China and Taiwan

On December 16, 2014, Commerce announced its affirmative final determinations in the AD investigations of imports of certain crystalline silicon photovoltaic products from China and Taiwan, and its affirmative final determination in the CVD investigation of imports of this product from China.  Commerce determined that imports of subject merchandise from China have been sold in the United States at dumping margins ranging from 26.71 percent to 165.04 percent (China) and dumping margins ranging from 11.45 percent to 27.55 percent (Taiwan; and that imports of this product from China have received countervailable subsidies ranging from 27.64 percent to 49.79 percent.  The ITC is scheduled to make its final injury determinations at the end of January 2015.  If the ITC makes affirmative final determinations that imports of subject merchandise from China and/or Taiwan materially injure, or threaten material injury to, the domestic industry, Commerce will issue AD and CVD orders, as applicable.  If the ITC makes negative determinations of injury, the investigations will be terminated.

Nails from Korea, Malaysia, Oman and Vietnam

On December 18, 2014, Commerce announced its affirmative preliminary determinations in the AD investigations of imports of certain steel nails from Korea, Malaysia, Oman and Vietnam, and its negative preliminary determination in the AD investigation of imports of certain steel nails from Taiwan.  Commerce preliminarily determined that certain steel nails from Korea, Malaysia, Oman, and Vietnam have been sold in the United States at dumping margins ranging from 2.13 percent to 12.38 percent, 2.14 percent to 39.35 percent, 9.07 percent, and 93.42 percent to 323.99 percent, respectively.  Commerce did not find dumping of imports of certain steel nails from Taiwan.  Commerce is scheduled to announce its final determinations on or about May 11, 2015.  The statutory deadline for this final determination has been fully postponed.   The ITC is scheduled to make its final injury determinations on or about June 23, 2015 for the AD investigations involving Korea, Malaysia, Oman, and Vietnam.  If Commerce’s final determination for Taiwan is affirmative, the ITC has until on or about July 22, 2015 to make its final injury determination for the AD investigation involving Taiwan.

Melamine from China and Trinidad and Tobago

On December 29, 2014, the ITC unanimously voted that there is a reasonable indication that a U.S. industry is materially injured by reason of imports of melamine from China and Trinidad and Tobago that are allegedly subsidized and sold in the United States at less than fair value.  As a result of the Commission’s affirmative determinations, Commerce will continue to conduct its investigations on imports of these products from China and Trinidad and Tobago, with its preliminary CVD determinations due on or about February 5, 2015, and its AD determinations due on or about April 21, 2015, unless the statutory deadlines are extended

Calcium Hypochlorite from China

On January 8, 2015, the ITC unanimously determined that a U.S. industry is materially injured by reason of imports of calcium hypochlorite from China that Commerce has determined are subsidized and sold in the United States at less than fair value.  Commerce previously determined that imports of this product have been sold in the United States at dumping margin of 210.52 percent.  Commerce also determined that producers/exporters of calcium hypochlorite from China have received countervailable subsidies of 65.85 percent. See Dec. 9, 2014 Commerce Fact Sheet.  As a result of the ITC’s affirmative determinations, Commerce will issue AD and CVD orders on imports of this product from China. 

Sunset Reviews

Cut-to-Length Carbon Steel Plate from China, Russia and Ukraine

On January 5, 2015, the ITC unanimously determined to conduct a full five-year ("sunset") review concerning the antidumping duty order on cut-to-length carbon steel plate from China and the suspended investigations on cut-to-length carbon steel plate from Russia and Ukraine.  This is the third sunset review of the China AD order and suspended investigations.  Kelley Drye & Warren (Paul Rosenthal, Kathleen Cannon, Alan Luberda and Grace Kim) are representing domestic producer ArcelorMittal USA, LLC.  As a result of this vote, the Commission will conduct a full review to determine whether revocation of this order and the suspended investigations would be likely to lead to the continuation or recurrence of material injury within a reasonably foreseeable time.  The ITC’s full review will include a public hearing and issuance of questionnaires. 

Lightweight Thermal Paper from China and Germany

On December 17, 2014, the ITC determined that revoking the existing AD and CVD orders on lightweight thermal paper from China would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time.  However, the Commission further determined that revoking the existing AD order on imports of this product from Germany would not be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time.  Chairman Broadbent, Vice Chairman Pinkert, and Commissioners Williamson, Johanson, and Schmidtlein voted in the affirmative with respect to China and in the negative with respect to Germany.  Commissioner Kieff did not participate in these reviews.  As a result of the Commission's affirmative determinations, the existing orders on imports of this product from China will remain in place for an additional five years; but the existing AD order on imports of this product from Germany will be revoked.  

Polyethylene Terephthalate Film, Sheet, and Strip from Brazil, China, and the United Arab Emirates (“UAE”)

On December 19, 2014, the ITC determined that revoking the existing revoking the existing AD orders on polyethylene terephthalate film, sheet, and strip from China and the United Arab Emirates (“UAE”) would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time.  The Commission further determined that revoking the existing AD order on imports of subject merchandise from Brazil would not be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time.  Chairman Broadbent and Commissioners Williamson, Johanson, Kieff, and Schmidtlein voted in the affirmative with respect to China and the UAE and in the negative with respect to Brazil.  Vice Chairman Pinkert voted in the affirmative with respect to all countries.  As a result of the Commission's affirmative determinations, the existing orders on imports of these products from China and the UAE will remain in place for an additional five years; but the existing AD order on imports of these products from Brazil will be revoked.

Tow-Behind from China and South Africa

On January 12, 2015, the ITC unanimously determined that revoking the existing AD order on tow-behind lawn groomer and parts thereof from China would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time.  As a result of the agency findings, the antidumping order will remain in place for an additional five years.

Ferrovanadium from China and South Africa

On January 14, 2015, the ITC unanimously determined that revoking the existing antidumping duty orders on ferrovanadium from China and South Africa would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time.  As a result of the agency findings, the AD orders on ferrovanadium from China and South Africa will remain in place for an additional five years.

Barium Carbonate

On January 20, 2015, the ITC unanimously determined that revoking the existing antidumping duty order on barium carbonate from China would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time.  As a result of the agency findings, the AD order will remain in place for an additional five years.

Michael J. Kelleher