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President Trump Announces 10 Percent Tariff on List 4 To Go Into Effect September 1 - Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP

President Trump announced today that the fourth list of products from China subject to additional duties will go into effect September 1, 2019. On May 13, 2019, the U.S. Trade Representative (“USTR”) issued a proposed List 4 which threatens to impose additional tariffs of on “essentially all” Chinese products imported into the U.S. that were not covered by previous section 301 pronouncements valued at approximate $300 million. Today, President Trump announced in a Tweet that 10% additional duties will be imposed on these goods. No formal announcement by the Office of the United States Trade Representative (USTR) has been issued as yet.

Please feel free to contact one of our attorneys if your company would like assistance or has any questions about this recent action.


Procedures to Maximize Recovery of Section 232 and 301 Duties - Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP

Tariffs under Section 232 of the Trade Expansion Act of 1962 and Section 301 of the Trade Act of 1974 have been imposed on imports since as early as March 23, 2018.  Exemptions from the tariffs are available, and importers should consider implementing strategies to maximize potential recovery of the duties they have paid.

Section 232 duties

Section 232 duties on importations of steel and aluminum products went into effect on subject products on March 23, 2018 or June 1, 2018, depending upon the country of origin.  Several entities have filed lawsuits challenging the constitutionality of Section 232 or its application to certain steel articles.  In the event one of these cases is successful, other importers might be able to recover refunds of Section 232 tariffs previously paid.  If a company wishes to protect its interests in recovery of duties based on this constitutional challenge, at a minimum it will be necessary to file a civil action in the U.S. Court of International Trade within two years of the date that these payments were made.  Duty refunds will likely not be automatic.

Aside from the constitutional challenge, companies importing or using imported steel or aluminum can request exclusions from the tariffs if the imported steel or aluminum article is (i) not produced in the United States in a sufficient and reasonably available amount, (ii) not produced in the U.S. to a satisfactory quality, or (iii) for specific national security considerations.  Hundreds of companies have requested exclusions for their products.  For many companies, the Commerce Department has either denied the requests, or not yet issued a decision.  It is taking the Commerce Department on average 275 days to issue a decision on steel exclusion requests when one or more objections are filed.

If an exclusion is eventually granted but liquidation of the entry has become final, CBP will not be able to issue refunds.  Companies seeking refunds of Section 232 duties on the basis of exclusion requests therefore need to carefully monitor the liquidation status of their entries and either obtain an extension of liquidation or file protests against liquidated entries.  For companies that believe their exclusion requests were wrongly denied, there is the ability to challenge the denials through a civil action in the Court of International Trade (CIT).  The court has authority under the Administrative Procedures Act to set aside Commerce Department exclusion decisions that are not supported by the evidence or that otherwise conflict with Commerce’s regulations defining the terms “reasonably available” or “satisfactory quality.”  It is important that companies filing in court also ensure that liquidation of their entries is extended, or that protests are filed against the liquidation of all affected entries.

If your company has questions or concerns about the exclusion process, the filing of protests, and the possibility of challenging an improper denial of an exclusion request, please feel free to contact our offices.

Section 301 duties

Section 301 duties of up to 25% ad valorem have been imposed on certain products of China in three groups or “tranches.”  Duties went into effect on July 6, 2018, August 23, 2018 and September 24, 2018.

The U.S, Trade Representative (USTR) has been authorized to exclude products from assessment of the duties.  To date the USTR has approved six groups of product exclusions from tranche 1, and one group of product exclusions from tranche 2.  The USTR is still reviewing product exclusion requests for goods in tranche 1 and 2, and is currently accepting new requests for exclusion of goods in tranche 3, which can be filed up through September 30, 2019.  If an exclusion is granted, duties will be refunded retroactively to the respective effective dates set forth above, provided that liquidation of the entry has not become final. Importantly, exclusions are valid for all importers of the covered product, not just the company that requested the exclusion.

Given the length of time it has taken the USTR to act upon exclusion requests, it is important for importers to monitor the liquidation status of their entries and either obtain an extension of liquidation (which also keeps all other issues open on those entries), or file a protest if the entry has liquidated.

Against this background, it is recommend that importers do one or more of the following: (1) review pending exclusion requests to identify any that might cover a product that they have imported; (2) identify customs entries relating to the importation of the covered items; (3) submit a request to US Customs to extend liquidation of those entries if not yet liquidated, (4) monitor the liquidation status of any entries which include covered products;  and (5) ensure that protests are timely filed if any entries are liquidated without a refund of the additional duties.

Please feel free to contact one of our attorneys if your company would like assistance in preparing and submitting exclusion requests for Tranche 3 products, or implementing a procedure to maximize potential recovery of Section 301 duties in the event additional exclusion requests are granted.


USITC Makes Determinations in Five-Year (Sunset) Reviews Concerning Hot-Rolled Carbon Steel Flat Products from China, India, Indonesia, Taiwan, Thailand, and Ukraine - U.S. International Trade Commission

The U.S. International Trade Commission (USITC) today determined that revoking the existing antidumping duty orders on imports of hot-rolled carbon steel flat products from China, India, Indonesia, Taiwan, Thailand, and Ukraine and the existing countervailing duty order on imports of these products from Indonesia, Taiwan, and Thailand 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 antidumping duty orders on imports of these products from China, India, Indonesia, Taiwan, Thailand, and Ukraine and the existing countervailing duty order on imports of these products from Indonesia, Taiwan, and Thailand will remain in place. 

Chairman David S. Johanson and Commissioners Irving A. Williamson, Rhonda K. Schmidtlein, and Jason E. Kearns voted in the affirmative.  Commissioner Meredith M. Broadbent did not participate in these reviews.

Today’s action comes under the five-year (sunset) review process required by the Uruguay Round Agreements Act.  See the attached page for background on these five-year (sunset) reviews.

The Commission’s public report Hot-Rolled Carbon Steel Flat Products from China, India, Indonesia, Taiwan, Thailand, and Ukraine (Inv. Nos. 701-TA-405-406 and 408 and 731-TA-899-901 and 906-908 (Third Review), USITC Publication 4942, August 2019) will contain the views of the Commission and information developed during the reviews.

The report will be available by September 3, 2019; when available, it may be accessed on the USITC website at: https://www.usitc.gov/commission_publications_library.


BACKGROUND

The Uruguay Round Agreements Act requires the Department of Commerce to revoke an antidumping or countervailing duty order, or terminate a suspension agreement, after five years unless the Department of Commerce and the USITC determine that revoking the order or terminating the suspension agreement would be likely to lead to continuation or recurrence of dumping or subsidies (Commerce) and of material injury (USITC) within a reasonably foreseeable time.

The Commission’s institution notice in five-year reviews requests that interested parties file responses with the Commission concerning the likely effects of revoking the order under review as well as other information.  Generally within 95 days from institution, the Commission will determine whether the responses it has received reflect an adequate or inadequate level of interest in a full review.  If responses to the USITC’s notice of institution are adequate, or if other circumstances warrant a full review, the Commission conducts a full review, which includes a public hearing and issuance of questionnaires.

The Commission generally does not hold a hearing or conduct further investigative activities in expedited reviews. Commissioners base their injury determination 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 review, and information provided by the Department of Commerce.

The five-year (sunset) reviews concerning Hot-Rolled Carbon Steel Flat Products from China, India, Indonesia, Taiwan, Thailand, and Ukraine were instituted on January 2, 2019.

On May 8, 2019, the Commission voted to conduct expedited reviews. Chairman David S. Johanson and Commissioners Irving A. Williamson, Rhonda K. Schmidtlein, and Jason E. Kearns concluded that the domestic group response was adequate and the respondent group responses were inadequate and voted for expedited reviews.  Commissioner Meredith M. Broadbent did not participate in these reviews.

A record of the Commission’s vote to conduct expedited reviews is available from the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436.  Requests may be made by telephone by calling 202-205-1802.


Federal Register Notices:

CHAMPLAIN, N.Y.  - U. S. Customs and Border Protection (CBP) officers working at the Champlain Port of Entry seized a shipment of toys valued at approximately $28,747 for violation of the Consumer Product Safety Act.
 
A commercial shipment of toys that arrived from Canada were held for examination and turned over to agents from the Consumer Product Safety Commission (CPSC). After testing a sample of the toys, CPSC determined that the Elf Hatching Eggs were in violation due to the absence of required tracking label information. Additionally, the toys were not accompanied by a General Certificate of Conformity, as required by the Consumers Product Safety Act.

 “The men and women of CBP are responsible for enforcing hundreds of U.S. laws and regulations. In this case, we worked closely with CPSC to enforce the laws relating to the safety of international goods and to keep potentially harmful toys out of the hands of children,” said Champlain Area Port Director Steven Bronson. 
 
As a result of these violations, more than 3,500 toys were seized by CBP.


U.S. Department of Commerce Finds Dumping of Imports of Glycine from Thailand - U.S. Department of Commerce

Today, the U.S. Department of Commerce announced an affirmative final determination in the antidumping duty (AD) investigation, and a negative final determination in the countervailing duty (CVD) investigation of imports of glycine from Thailand. Commerce found that exporters from Thailand have sold glycine at less than fair value in the United States at rates from 201.59 to 227.27 percent, and determined that exporters from Thailand received de minimis countervailable subsidies.

On April 24, 2019, Commerce took the extraordinary step of postponing the final determinations in these investigations beyond the statutory deadline to investigate an alleged transshipment scheme of Chinese-origin glycine through Thailand, in order to avoid duties of glycine from China.

Based on our extended investigations, Commerce found that Newtrend Food Ingredient (Thailand) Co., Ltd withheld critical information with respect to its reported costs of production for glycine, such that its reported cost data could not be relied upon for AD margin calculation purposes in the final determination. As a result, Commerce applied to Newtrend a final dumping margin based on the adverse facts available, equal to 227.27 percent. This finding does not apply to the CVD investigation, as Commerce’s methodology to calculate subsidy rates does not involve the cost of production.

In 2018, imports of glycine from Thailand were valued at an estimated $8.7 million.

The petitioners are GEO Specialty Chemicals, Inc. (Lafayette, IN) and Chattem Chemicals, Inc. (Chattanooga, TN).

The strict enforcement of U.S. trade law is a primary focus of the Trump Administration. Since the beginning of the current Administration, Commerce has initiated 179 new antidumping and countervailing duty investigations – this is a 231 percent increase from the comparable period in the previous administration.

Antidumping and countervailing duty laws provide American businesses and workers with an internationally accepted mechanism to seek relief from the harmful effects of the unfair pricing of imports into the United States. Commerce currently maintains 492 antidumping and countervailing duty orders which provide relief to American companies and industries impacted by unfair trade.

The U.S. International Trade Commission (ITC) is currently scheduled to make its final injury determination in the AD investigation on or about September 12, 2019. If the ITC makes an affirmative final injury determination, Commerce will issue an AD order. If the ITC makes a negative final determination of injury, the AD investigation will be terminated and no order will be issued. Because Commerce has made a negative final determination in the CVD investigation, the CVD proceeding is terminated, and the ITC will not be making a final injury determination in that investigation.

Click HERE for a fact sheet on today’s decisions.

The strict enforcement of U.S. trade law is a primary focus of the Trump Administration. Since the beginning of the current Administration, Commerce has initiated 179 new antidumping and countervailing duty investigations – this is a 231 percent increase from the comparable period in the previous administration.

Antidumping and countervailing duty laws provide American businesses and workers with an internationally accepted mechanism to seek relief from the harmful effects of the unfair pricing of imports into the United States. Commerce currently maintains 492 antidumping and countervailing duty orders which provide relief to American companies and industries impacted by unfair trade. 


U.S. Department of Commerce Issues Affirmative Preliminary Antidumping Duty Determinations on Acetone from Singapore and Spain - U.S. Department of Commerce

Today, the U.S. Department of Commerce announced the affirmative preliminary determinations in the antidumping duty (AD) investigations of imports of acetone from Singapore and Spain, finding that exporters from Singapore have dumped acetone in the United States at margins ranging from 66.42 percent to 131.75 percent. Commerce also determined that exporters from Spain have dumped acetone in the United States at margins ranging from 137.39 percent to 171.81 percent.

As a result of today’s decisions, Commerce will instruct U.S. Customs and Border Protection to collect cash deposits from importers of acetone from Singapore and Spain based on these preliminary rates.

In 2018, imports of acetone from Singapore and Spain were valued at an estimated $8.5 million and $17 million, respectively.

The petitioner is the Coalition for Acetone Fair Trade. The members of the Coalition for Acetone Fair Trade are AdvanSix Inc. (Parsippany, NJ), Altivia Petrochemicals, LLC (Haverhill, OH), and Olin Corporation (Clayton, MO).

The strict enforcement of U.S. trade law is a primary focus of the Trump Administration. Since the beginning of the current Administration, Commerce has initiated 179 new antidumping and countervailing duty investigations – this is a 231 percent increase from the comparable period in the previous administration.

Antidumping and countervailing duty laws provide American businesses and workers with an internationally accepted mechanism to seek relief from the harmful effects of the unfair pricing of imports into the United States. Commerce currently maintains 492 antidumping and countervailing duty orders which provide relief to American companies and industries impacted by unfair trade.

Commerce is scheduled to announce the final determinations on or about October 16, 2019.

If Commerce’s final determinations are affirmative, the U.S. International Trade Commission (ITC) will be scheduled to make its final injury determinations on or about November 29, 2019. If Commerce makes affirmative final determinations of dumping, and the ITC makes affirmative final injury determinations, Commerce will issue AD orders. If Commerce makes negative final determinations of dumping, or the ITC makes negative final determinations of injury, the investigations will be terminated and no orders will be issued.

Click HERE for a fact sheet on today’s decisions.

The U.S. Department of Commerce’s Enforcement and Compliance unit within the International Trade Administration is responsible for vigorously enforcing U.S. trade law and does so through an impartial, transparent process that abides by international law and is based on factual evidence provided on the record.

Foreign companies that price their products in the U.S. market below the cost of production or below prices in their home markets are subject to antidumping duties. Companies that receive unfair subsidies from their governments, such as grants, loans, equity infusions, tax breaks, or production inputs, are subject to countervailing duties aimed at directly countering those subsidies.
 
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