Important News for Companies Importing Certain Goods From China

The Court of Appeals for the Federal Circuit has issued an important decision that impacts any U.S. company importing goods from China that are subject to countervailing duties. These companies need to act soon to preserve their right to potential refunds of countervailing duty tariffs paid on entries of these Chinese goods.

The United States imposes countervailing duties on 23 different Chinese products — often, at triple-digit rates. These duties have been imposed on billions of dollars of affected entries, resulting in the payment of hundreds of millions of dollars of countervailing duties. Under the reasoning of the CAFC, all of these duties potentially need to be refunded, because the Court ruled that U.S. Congress never intended to impose these duties on non-market economies like China. The entries that potentially are due a refund (going all the way back to 2008) are the following:

• 08/05/2008 C-570-915 Light-Walled Rectangular Pipe and Tube 73 FR 45403 8/5/2008
• 08/07/2008 C-570-917 Laminated Woven Sacks 73 FR 45955 8/7/2008
• 08/27/2008 C-570-926 Sodium Nitrite 73 FR 50593 8/27/2008
• 09/04/2008 C-570-913 New Pneumatic Off-the-Road Tires 73 FR 51627 9/4/2008
• 09/17/2008 C-570-923 Raw Flexible Magnets 73 FR 53849 9/17/2008
• 11/24/2008 C-570-921 Lightweight Thermal Paper 73 FR 70958 11/24/2008
• 01/23/2009 C-570-936 Circular Welded Carbon Quality Steel Line Pipe 74 FR 4136 1/23/2009
• 3/19/2009 C-570-931 Circular Welded Austenitic Stainless Pressure Pipe 74 FR 11712 3/19/2009
• 5/29/2009 C-570-938 Citric Acid and Certain Citric Salts 74 FR 25705 5/29/2009
• 8/3/2009 C-570-940 Tow Behind Lawn Groomer 74 FR 38399 8/3/2009
• 9/14/2009 C-570-942 Kitchen Appliance Shelving and Racks 74 FR 46973 9/14/2009
• 12/11/2009 C-533-849 Commodity Matchbooks 74 FR 65740 12/11/2009
• 1/20/2010 C-570-944 Oil Country Tubular Goods 75 FR 3203 1/20/2010
• 7/7/2010 C-570-946 Prestressed Concrete Steel Wire Strand 75 FR 38977 7/7/2010
• 7/22/2010 C-570-963 Potassium Phosphate Salts 75 FR 42682 7/22/2010
• 7/23/2010 C-570-948 Steel Grating 75 FR 43144 7/23/2010
• 9/1/2010 C-570-953 Narrow Woven Ribbons With Woven Selvedge 75 FR 53642 9/1/2010
• 9/21/2010 C-570-955 Certain Magnesia Carbon Bricks 75 FR 57442 9/21/2010
• 11/10/2010 C-570-957 Seamless Carbon and Alloy Steel Standard, Line, and Pressure Pipe 75 FR 69050 11/10/2010
• 11/17/2010 C-570-959 Coated Paper Suitable for High-Quality Print Graphics Using Sheet-Fed Presses 75 FR 70201 11/17/2010 Amended - 12/6/2010
• 11/22/2010 C-570-964 Seamless Refined Copper Pipe and Tube 75 FR 71070 11/22/2010
• 3/3/2011 C-570-966 Drill Pipe and Drill Collars 76 FR 11758 3/3/2011
• 05/26/2011 C-570-968 Aluminum Extrusions 76 FR 30653 5/26/2011

The exact procedures to seek the refund of these duties are not yet set. It is possible that the U.S. government will seek review of this case, either through an en banc review or through appeal by certiorari to the U.S. Supreme Court (and perhaps both). Nonetheless, importers of record who have imported any of these goods need to evaluate their imports to determine whether they need to seek a refund of these duties from U.S. Customs and Border Protection (Customs). In many cases, even imports as much as seven or eight months prior to the listed dates may qualify for a refund, due to the imposition of "provisional measures" at the early stages of a countervailing duty investigation. Failure to file a timely protest could result in the liquidation of the entries, making it considerably more difficult (and perhaps impossible) for importers of record to seek refunds of these duties.

Legal News Alert is part of our ongoing commitment to providing up-to-the-minute information about pressing concerns or industry issues affecting our clients and colleagues.

If you have any questions about this Alert or would like to discuss the topic further, please contact your Foley attorney or:

Robert H. Huey
Washington, D.C.
202.295.4043
rhuey@foley.com

Gregory Husisian
Washington, D.C.
202.945.6149
ghusisian@foley.com