Article posted with permission from OCEANAIR’s Customs Attorneys: GDLSK — Grunfeld, Desiderio, Lebowitz, Silverman, & Klestadt LLP
By a vote of 3 – 2, the United States International Trade Commission (“USITC”) decided that truck and bus tires (“TBT”) from China did not materially injure a domestic industry in the United States or threaten a domestic industry with material injury.
This vote means that additional antidumping duty (“ADD”) and countervailing duty (“CVD”) will not be imposed on Chinese TBT imports. In addition, ADD/CVD which importers have been required to deposit on TBT shipments entered in the past year will be refunded. Instructions will be issued by the Department of Commerce (“DOC”) to Customs in the near future instructing Customs officials to refund ADD/CVD to importers. Chinese producers and exporters (the China Rubber Industry Association and the Subcommittee of Tire Producers of the China Chamber of Commerce Metals, Minerals and Chemical Importers) were represented by GDLSK LLP throughout the USITC proceedings.
If the USITC had reached an affirmative decision, Chinese TBT importers would have been required to deposit ADD/CVD of between 23.38% and 66.27% with each entry. We note that ADD/CVD Orders remain in place for off the road tires (“OTR”) and passenger and light truck tires (“PVLT”), and that OTR and PVLT importers are required to deposit ADD/CVD on entries of those products.
The petitioners in the TBT case have the right to challenge the USITC’s negative decision in the Court of International Trade (“CIT”). If an action is filed in the CIT, a decision from the court would not be published for at least one year from now. ADD/CVD will not be collected on entries unless and until the CIT issues a final decision reversing the USITC. A final CIT decision reversing the USITC will apply to shipments entered on and after the CIT decision is published; it will not apply to shipments entered before publication. There is no formal timetable for litigation in the CIT and no time limit in which the court is required to issue a decision. GDLSK will be involved in the litigation and will advise clients as to what is taking place. Petitioning unions can bring a new ADD/CVD case any time. As a practical matter, petitioners normally wait 1 – 2 years before refiling, because they need to establish that there has been a change in circumstances which will result in the Commission deciding that there is now material injury or a threat thereof. For TBTs, the possibility exists that the
Petitioning Unions may file a new petition sooner, since a sixth Commissioner will be appointed in the near future, and had his/her vote been affirmative, the USITC would have found in favor of petitioners (3 -3 ties result in affirmative injury determinations). If a new petition is filed, ADD/CVD cannot be assessed retroactively on shipments entered prior to an affirmative preliminary determination in the new case (or 90 days prior thereto if critical circumstances are found).