Announcements

Investigation on Cuba

On January 30th, the International Trade Commission (“ITC”) announced that it would be conducting a study of the economic effects of exports of U.S. goods and services, as well as the restrictions related to trade with and travel to Cuba by U.S. citizens.  The investigation was requested by the U.S. Senate Committee on Finance.  The ITC will provide summarize recent and current trends in Cuban imports of goods and services from the United States, and an analysis of U.S. restrictions affecting those purchases, including restrictions on U.S. citizen travel to Cuba.  On March 24th, the ITC will hold a public hearing on this investigation (under section 332 of The Tariff Act).  Prehearing Briefs\statements are due by March 12th and post-hearing briefs/statements are due by March 31st.  The Commission’s report is due to the Senate Committee by September 15th.

New Antidumping\Countervailing Cases

Boltless Steel Shelving Units Prepackaged for Sale from China

On January 26, 2015, the U.S. Department of Commerce (“Commerce”) announced its affirmative preliminary determination in the countervailing (“CVD”) investigation of imports of boltless steel shelving units prepackaged for sale from China.  Commerce calculated a preliminary subsidy rate of 14.53 percent for Nanjing Topsun Racking Manufacturing Co., and a preliminary subsidy rate of 12.21 percent for Ningbo ETDZ Huixing Trade Co.  Commerce also assigned a preliminary subsidy rate of 13.37 percent to all other producers/exporters in China.  In addition, fourteen companies, which failed to respond to Commerce’s quantity and value questionnaire, received a preliminary subsidy rate of 55.75 percent, based on adverse facts available.  Commerce will issue its preliminary determination in the accompanying antidumping (“AD”) investigation on March 24th.  Kelley Drye & Warren (Kathleen Cannon, Paul Rosenthal, Alan Luberda and Grace Kim) are representing Petitioner Edsal Manufacturing Co., Inc. in the investigations.

Certain Uncoated Paper from Australia, Brazil, China, Indonesia, and Portugal

On January 21st, antidumping and countervailing petitions were filed with the ITC and Commerce on behalf of United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union; Domtar Corporation; Finch Paper LLC; P.H. Glatfelter Company; and Packaging Corporation of America, regarding imports of certain uncoated paper from Australia, Brazil, China, Indonesia, and Portugal (AD); and China and Indonesia (CVD).  The ITC is set to vote on the preliminary injury determination around March 6th.  Assuming the ITC issues an affirmative determination, Commerce should issue preliminary antidumping and countervailing duty determinations within about six months.

 Certain Crystalline Silicon Photovoltaic Products from China

On January 21st, the ITC determined that a U.S. industry is materially injured by reason of imports of certain crystalline silicon photovoltaic products from China and Taiwan that Commerce previously determined are sold in the United States at less than fair value and are subsidized by the government of China.  Vice Chairman Pinkert and Commissioners Williamson, Johanson, and Schmidtlein voted in the affirmative.  Chairman Broadbent voted in the affirmative with respect to modules from China and Taiwan and in the negative with respect to cells from Taiwan (cells from China weren’t included in these investigations’ scope).  Commissioner Kieff did not participate in these investigations.  As a result of the ITC’s affirmative determination, Commerce will issue orders on this product.

Sunset Reviews

Prestressed Concrete Steel Wire Strand (“PC Strand”) from Brazil, India, Japan Korea, Mexico, Thailand

On February 6th, the ITC unanimously voted to expedite the second sunset review of the AD orders on prestressed concrete steel wire strand (“PC Strand”) from Brazil, India, Korea, Mexico, and Thailand, and the countervailing order on PC Strand from India; as well as the fourth sunset review of the AD Order on PC Strand from Japan.  As a result of these votes, the ITC will conduct expedited reviews to determine whether revocation of these orders and this finding would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time.  The Commission generally does not hold a hearing or conduct further investigative activities in expedited reviews.  Commissioners base their injury determinations in expedited reviews on the facts available, including the Commission’s prior injury and review determinations, responses received to its notice of institution, data collected by staff in connection with the reviews, and information provided by the Department of Commerce.  The Commission should make its final sunset determinations at the end of March. Kelley Drye & Warren (Paul Rosenthal, Kathleen Cannon and Grace Kim) are representing Petitioners Insteel Wire Products, and Sumiden Wire Product in the sunset reviews.

Kitchen Appliance Shelving and Racks from China

On February 5th, the ITC unanimously determined that revoking the existing antidumping duty and countervailing orders on kitchen and shelving appliance shelving and racks from would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time.  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.  Kelley Drye and Warren (Kathleen Cannon; Paul Rosenthal; David Smith and Grace Kim) represented petitioners Nashville Wire Products, Inc. and SSW Holding Company, Inc. in the sunset reviews.

Appeals

In January, the federal appeals court for international trade matters affirmed the Commerce Department's authority to reject data filed by foreign exporters in AD/CVD proceedings after the agency's established deadlines, and to significantly penalize such exporters for their lack of cooperation.  As a result, Chinese honey shipped to the U.S. by the exporter Commerce sanctioned will continue to be charged a dumping duty of $2.63 per kilogram.

On January 30th, the Court of Appeals for the Federal Circuit (“Federal Circuit”) issued an opinion in Dongtai Peak Industry Co. v. United States, Appeal No. 2014-1479, affirming the decision of the United States Court of International Trade (“CIT”) denying Dongtai Peak’s Motion for Judgment on the Agency Record.  See Dongtai Peak Honey Indus. Co. v. United States, 971 F. Supp. 2d 1234 (Ct. Int’l Trade 2014). 

The appeal centered around Commerce’s tenth antidumping administrative review of the AD order of honey imported from China for the period of review December 1, 2010, through November 30, 2011.  More specifically, Dongtai Peak filed an action with the CIT challenging several aspects of the 10th AD Review Final Results including: (1) the denial of its extension requests and removal of those requests and the Supplemental Response from the record; (2) Commerce’s decision to consider Dongtai Peak part of the China-wide entity; (3) Commerce’s use of adverse facts available (“AFA”) to calculate the dumping margin for the China-wide rate; and (4) the AFA rate of $2.63 per kilogram itself.  The CIT denied Dongtai’s motion on March 21, 2014.  See 971 F. Supp. 2d 1234 (Ct. Int’l Trade 2014).

The Federal Circuit found that Commerce “properly exercised its discretion in rejecting {Dongtai’s} extension requests and supplemental response” because (1) the extension requests were submitted after the established deadline in violation of 19 C.F.R. § 351.302(c), and (2) Appellant failed to show “good cause” for an extension as required by § 351.302(b).”  Slip Op. at 9, 12.  Dongtai Peak “was entirely capable of at least submitting an extension request on time.”  Having failed that, “good cause did not exist to retroactively extend the deadline.”  Id. at 13.  The Court also rejected Dongtai’s due process violation claims as well as administrative practice claims.  Id. at 12-15.  The Federal Circuit agreed with Commerce’s decision to deny Dongtai Peak’s separate rate status.  See id. at 15-17.  Finally, the Federal Circuit affirmed Commerce’s application of AFA as well as its AFA rate selection.  Id. at 17-21.  The Court noted that “{b}ecause Dongtai Peak was aware of the deadline and had the opportunity to file an extension request prior to its expiration, its failure to do so indicates an inattentiveness or carelessness with regard to its obligations.  This warranted application of AFA.”  Id. at 20.

Kelley Drye & Warren (Michael Coursey, Alan Luberda and Benjamin Blase Caryl) successfully represented Defendants-Appellees American Honey Producers Association and the Sioux Honey Association before the CIT and Federal Circuit.