International Trade Commission (ITC)

On January 30, 2018, the Alliance Rubber Co. filed antidumping (“AD”) and countervailing duty (“CVD”) petitions on rubber bands from China, Sri Lanka, and Thailand. The petitioner alleges that the subject merchandise from these countries is being sold in the U.S. at less than fair value. The petitioner also alleges the governments of China, Sri Lanka, and Thailand are subsidizing the foreign producers, giving them an advantage in the U.S. market. Importers of subject merchandise are liable for any potential antidumping or countervailing duties imposed.

The U.S. International Trade Commission (“ITC”) will investigate to determine whether the U.S. industry is being materially injured or threatened with material injury due to imports of subject merchandise from China, Sri Lanka, or Thailand. The U.S. Department of Commerce will determine whether the foreign companies are selling at less than fair value, or whether the foreign exporters are being subsidized by the foreign governments. Affirmative findings from both agencies are required for either AD or CVD duties to be imposed. The ITC will issue its preliminary determinations in the AD/CVD investigations by March 16, 2018. Unless extended, the Department of Commerce must issue its preliminary CVD determinations by April 26, 2018, and its preliminary AD determinations by July 10, 2018. The deadlines for the Department of Commerce’s preliminary determinations are subject to postponement.

The petitioner alleges the following dumping margins:

  • Thailand: 60.82 percent
  • China: 27.16 percent
  • Sri Lanka: 48.63 percent

Scope

Merchandise covered by these proceedings is currently classified in the Harmonized Tariff System of the United States (“HTSUS”) under sub-heading 4016.99.35.10 (Rubber Bands Made of Vulcanized Rubber, Except Hard Rubber, of Natural Rubber). Notably, this sub-heading pertains only to vulcanized rubber bands. The written description of the scope, provided below, is dispositive.

The products subject to the AD/CVD investigations are bands made of bands made of vulcanized rubber, with a flat length, as measured end-to-end by the band lying flat, no less than 1/2 inch and no greater• than 10 inches; with a width, which measures the dimension perpendicular to the length, of at least 3/64 inch and no greater than 2 inches; and a wall thickness from .020 inch to .125 inch. Vulcanized rubber has been chemically processed into a more durable material by the addition of sulfur or other equivalent curatives or accelerators. Subject products are included regardless of color or inclusion of printed material. The scope includes vulcanized rubber bands which are contained or otherwise exist in various forms and packages, such as, without limitation, vulcanized rubber bands included within a desk accessory set or other type of set or package, and vulcanized rubber band balls, but excludes Bedford Elastitags®, and bands that are being used at the time of import to fasten an imported product.

Projected Schedule

Petition is Filed – January 30, 2018
DOC Initiates Investigations – February 20, 2018
ITC Staff Conference – February 20, 2018
ITC Post-Conference Briefs – February 23, 2018
ITC Preliminary Determinations Issued – March 16, 2018
DOC Preliminary CVD (un-extended) – April 26, 2018
DOC Preliminary AD (un-extended) – July 10, 2018
DOC Preliminary CVD (extended) – July 2, 2018
DOC Preliminary AD (extended) – August 29, 2018

For more information, please contact Lizbeth Levinson  or Brittney Powell.

President Donald Trump announced his nomination of two Commissioners to the United States International Trade Commission (“ITC”) on September 28, 2017.

The two nominees are Dennis M. Devaney and Randolph J. Stayin.  If approved, Devaney of Michigan will serve the remainder of a nine-year term expiring June 16, 2023, and Stayin of Virginia will serve the remainder of a nine-year term expiring June 16, 2026.

Devaney and Stayin were nominated to fill the Commissioner positions of Commissioners Kieff and Pinkert, who left the ITC this year.  The ITC is headed by six Commissioners who are nominated by the President and confirmed by the U.S. Senate.  Currently, the ITC is operating with only four out of six Commissioners.  On October 2, 2017, the Senate received the nominations and referred them to the Committee on Finance.

Devaney is currently counsel at a law firm where he works on international trade matters as well as labor and employment issues. Devaney is a former Board Member of the National Labor Relations Board and former General Counsel for the Federal Labor Relations Authority. Devaney previously served as an ITC Commissioner in 2001 after being appointed by President Bill Clinton.

Stayin focused his legal practice on international trade policy and regulation. Earlier in his career he served as chief of staff to Senator Robert Taft, Jr., and was his trade advisor in negotiating the passage of the Trade Act of 1974. Stayin has represented clients before the ITC, the U.S. Department of Commerce, the Office of the U.S. Trade Representative, the Court of International Trade, the Court of Appeals for the Federal Circuit, and NAFTA dispute panels.

 

On Wednesday, the U.S. Department of Commerce began its preliminary phase antidumping and countervailing duty investigations pursuant to the Tariff Act of 1930. The Department of Commerce is looking into whether the imports of stainless steel flanges from China and India, which are alleged to be sold in the U.S. at less than fair value and alleged to be subsidized by the Chinese and Indian governments, are materially injuring the U.S. industry.

The U.S. antidumping law imposes special tariffs to counteract imports that are sold in the U.S. at less than fair value. The U.S. countervailing duty law imposes special tariffs to counteract imports that are sold in the U.S. with the benefit of foreign government subsidies. For these duties to be imposed, the U.S. government must determine that there is material injury, or a threat of material injury, by reason of the dumped and/or subsidized imports.

The probe by the Department of Commerce comes after two privately held companies filed petitions. The two petitioners are the individual members of the Coalition of American Flange Producers: Core Pipe Products, Inc. and Maass Flange Corporation. The petitioners alleged dumping margins in China ranging from 99.23% to 257.11%, and for India margins ranging from 78.49% to 145.25%.

The products covered by these investigations are certain forged stainless steel flanges, whether unfinished, semi-finished or finished. The term “stainless steel” refers to an alloy steel containing, by actual weight, 1.2% or less of carbon and 10.5% or more of chromium, with or without other elements.

It is the job of the Department of Commerce to determine whether the alleged dumping or subsidizing is occurring, and if so, the margin of dumping or the amount of the subsidy. The United States International Trade Commission (“USITC”) will determine whether the U.S. industry is materially injured or threatened with material injury by reason of the imports under investigation. If both the Department of Commerce and the USITC reach affirmative final determinations, then the Department of Commerce will issue an antidumping or a countervailing duty order to offset the subsidy.

The USITC is scheduled to make its preliminary determination regarding the injury on or before October 2, 2017. If the USITC determines that there is injury, the investigations will continue, and the Department of Commerce will makes its preliminary countervailing duty determination in November 2017, and its antidumping determination in January 2018, though these dates may be extended.

The results of the investigation could impact both importers and purchasers. Importers will be liable for any potential duties that are imposed by the U.S. government. Purchases could be impacted because the determination could result in increased prices and/or decreased supply of stainless steel flanges.

On the firm’s Energy Law Today blog, Fox Partner Mark V. Santo discusses the renegotiation of the North American Free Trade Agreement (NAFTA) and its potential impact on the natural gas trade between the U.S. and Mexico.

North America from space
Copyright: antartis / 123RF Stock Photo

“Mexico imports nearly all of its natural gas from the U.S. and exports to Mexico are expected to double by 2019, with Texas fields being the primary source. At least 17 pipelines currently carry four billion cubic feet of natural gas a day from Texas to Mexico, with four additional cross-border pipelines in the works. Mexico’s demand for U.S.-sourced natural gas has been a boon to domestic producers as it has greatly offset the oversupply of natural gas production. Without this outlet to Mexico, natural gas producers in the U.S. will face a severe downturn with wells shut, job losses and investment curtailed.

The U.S.-Mexico natural gas symbiotic relationship is just one example of the tri-nation supply chain intricacies and complexities forged under NAFTA. There are countless others, such as deep supply chains in agriculture, construction materials and autos to name a few….”

Mark notes the key provisions of the agreement that the Trump Administration will seek to alter. These provisions relate to the remedies available should a NAFTA nation’s exports injure the domestic market of another NAFTA member.

To read Mark’s full post, please visit the Energy Law Today blog.

The International Trade Commission (ITC) issued an order on January 27, 2017,  barring the import table saws produced by German tool manufacturer, Robert Bosch GmbH (“Bosch”). The ITC determined that the components of Bosch’s REAXX safety technology infringed the two patents held by US-based SawStop LLC (“SawStop”).  As described in a press release at the outset of the ITC’s investigation, both the saws produced by SawStop and by Bosch contain active injury mitigation technologies which are able to detect when a user comes into contact with the blade can avoid catastrophic injury.

As the ITC had previously determined that Bosch’s saws infringed two of SawStop’s patents, the ITCs recent order was limited to Bosch’s request that the ITC forego any penalties and permit the continued importation of its saws because: (1) SawStop did not have the manufacturing and distribution capacity to meet US demand and (2) by preventing the import of Bosch’s safer saw, the ITC would be increasing potential injuries to consumers.  Indeed, Bosch cited to “millions or billions of dollars” in societal costs for severe injuries from the use of unsafe saws. Ultimately, Bosch’s argument that US consumers should be afforded the ability to buy saws with the latest safety technology (leaving aside the countless antiquated table saws that fill factories and wood shops across the country) was unpersuasive.  Further, the ITC appeared to accept that SawStop was capable of meeting demand and ordered that all of Bosch’s infringing saws be excluded.