Thursday, October 1, 2009

Trade in review

Lamy speech: G20 must walk the talk on Doha.

Panel set for Certain measures affecting imports of poultry from China.
Chairman: Mr Ole Lundby
Members: Mr Felipe Lopeandía
Mr Mohammad Saeed

Notice of appeal by China of measures affecting trading rights and distribution services for certain publications and audio visual entertainment products.

US Court of International Trade
National Fisheries Institute v. United States Customs and Border Protection.

GPX International Tire Company v. United States, Bridgestone Tire Corp.

This is an extremely important ruling in China antidumping and countervailing
  • Background: An antidumping margin is calculated based on the difference between the home market price and the export sales prices. Where is the price is sold less than the home market tot eh export market it is assessed a dumping margin collected by customs.
  • Countervailing does not deal with the home market price but only the amount of subsidy given by the exporting country's government.
  • Because the U.S. started trading with "Non-market economies" (NMEs), Congress added to the antidumping statute a method for calculatings dumping margins for nations that are deemed "NMEs." The reason being that in NMEs there was no reliable home market price. The relationship between the government and the businesses involved in exporter were too intertwined. Congress did write into the statute that the antidumping NME method would preclude countervailing.
  • Up until 2007 Commerce choose to use antidumping method for NME exclusively as the trade remedy for NMEs and did not add countervailing duties to the ADD. The Federal Court of Appeals upheld Commerce's decision as a permissible interpretation of the statute.
  • After 2007, however, they began apply both AD for NME and Countervailing duties (CVD).
  • The first time this was applied to was for coated paper. That case was dropped by the International Trade Commission for lack of injury.
  • This case Chef Judge Restani ruled that apply both CDC and ADD for NME would result in a high likely hood of double charging. Therefore this interpretation would be unreasonable. Commerce can apply both ADD for NME and CDV but they have to show that it is done fairly and without double charging.
  • The other issue was that Commerce set a dead line for calculate what countervailing subsidies would be counted. Subsidies give before China entered the WTO would not be counted toward the CVD while subsidies after would be included. Plaintiffs and defendants in this case agreed they did not want to include the prior subsidies but defendant intervenors argued that they should be. Here she ruled it was arbitrary and unsupported by substantial evidence to set such a dead line.
  • So it was remanded back for Commerce to set policies in place to insure that there would be no double counting of CVD and ADD margins. Also remanded that if Commerce decides it want to continue to apply CDV the cut off date for the subsidies would not be acceptable.
I wonder now what sort policies could be in place to even lower the chance of not double counting. You have one method prescribed by statute, NME method, where you basically construct a new price based on foreign surrogates and where possible actual international market place prices, and CVD where you just count up all the inputs received from the government.

The difference between the surrogate price and the price sold will include all of the subsides because it it measuring from a hypothetical outside point. So if you take out a double counting you would have to adjust it so the result would be the same.

I think commerce is stuck trying to figure out how to get aqure pegs in round holes on this one. It will be interesting to see what they come up with.

Gilda Industries v. United States.

Court denied class action status for those companies effected by the EU-beef hormone retaliatory tariffs. Seems to me the place to fight these tariffs would be a lobbying effort in the EU to change their beef importation policy. 

Kahrs International, Inc., v. United States.
Seven count case:
  1. Customs did not follow the proper comment and notice when revoking its prior rulings as required by the statute.
  2. Customs did not follow the proper comment and notice when revoking a prior established uniform practice. This was the most interesting part of the case. The argument was that by allowing Kahrs to import flooring for many years, even inspecting the flooring several times, customs tactily gave there approval to that classification. So then that to change their mind after so many years and shipments that customs had infact revoked a ruling that required a request for comment for them to change the classification on Kahrs flooring products. Here the court reasoned just because customs lets you import something doesn't equate to a ruling on the product. Rulings need to be in writing to have affect. I think it confirmed what I have been telling customers all along that just because you've been importing something and customs hasn't said anything doesn't mean you are home free. Of course even rulings can be revoked and they can claim after the ruling that you didn't provide them with all pertinate information. 
  3. Challenges the classification: These items were properly classified as parquet panels 4412. The court went to the dictionary and looked up "parquet" and concluded to be a parquet panel it required geometric patterns. Which would you think it the more descriptive though for wooden floor tiles parquet panels or plywood? The court did not go into the Carborundum factors.
  4. Challenges the classification: These items then should be edge glued lumber under 4418.90.2000.
  5. Can't find the fifth cause of action?
  6. Challenges the classification: Or maybe these should be classified as Builders Joinery 4418.90.4500.
  7. Declaratory judgment sought that Kahrs exercised reasonable care. Kahrs motioned for a declaratory judgment that in classify its goods. The court ruled it lacked jurisdiction because the penalty phase had not reach ripeness through the adminstrative remedies. I think maybe since the Declaratory Relief Act was ment to curtail continuous litigation maybe it would be good to revise the way the court treats standing under the Administrative Procedure Act at some point.

Kahrs International, Inc., v. United States.
Evidentiary motions on the above case.

Federal Register Notices:

International Trade Administration
International Trade Commission
  • Certain High-Brightness Light-Emitting Diodes and Products Containing Same: Investigation
  • Certain Liquid Crystal Display Modules, Products Containing Same, and Methods Using the SameInvestigation
  • Certain Probe Card Assemblies, Components, and Certain Tested Dram and Flash Memory Devices, etc Investigation
  • Certain Sodium and Potassium Phosphate Salts from China. Countervailing and Antidumping
  • Certain Video Displays, Components, and Products Containing Same, Investigation.
  • Ni–Resist Piston Inserts from Argentina and Korea, Countervailing
  • Seamless Carbon and Alloy Steel Standard, Line, and Pressure Pipe from China Investigation
Presidential Proclamations:
Chinese safeguard measures for tires.
  • Additional duties of:
  • 35% September 26th 2009 to 2010
  • 30% September 26th 2010 to 2011
  • 25% September 26th 2011 to 2012
  • Expiring September 25 2012.
  • new pneumatic tires for the kind used on motor cars,light trucks vans and SUVs.
Not covered:
  • pneumatic racing tires
  • new pneumatic tires for large trucks and buses
  • new pneumatic tires for agricultural or forestry vehicles and machines and construction or industrial handling vehicles or machines
  • new pneumatic tires used for aircraft, bicycles, motorcycles, trailers, all terrain vehicles lawn mowers and golf carts.
  • used pneumatic tires retread and recycled tires
  • non-pneumatic tires
To determine whether the tire will be a light truck tire or a large truck tire will be based on the load rate: All LT or P tires will be considered covered. All tires with a load range standard load, light load or extra load will be covered. All tires with a load range of "A" to "E" will be covered and those tires with a load range of "G" and higher will not be covered. But a load range of "F" will require more documentation into its final use.

Transportation Security Administration:
Customs and Border Protection
Customs and Border Protection Bulletin

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