Section 301 Duties Shouldn’t Be Deducted From US Prices, Exporter Says

The Commerce Department was wrong to deduct Section 301 duties from an exporter’s U.S. price as part of its antidumping duty calculation, that exporter said May 3 in defense of an earlier motion for judgment. It said Section 301 duties aren’t “normal import duties,” but rather remedial “special” duties that statute requires be included in export price calculations (Neimenggu Fufeng Biotechnologies Co. v. U.S., CIT # 23-00068).

In a Feb. 27 opposition brief, the U.S. said Chinese xanthan gum exporter Fufeng had misintrepeted the duties and that they should be assessed on top of AD (see 2402280072).

But the U.S. Court of Appeals for the Federal Circuit backs up its case, Fufeng said. It said Section 201 duties, like Section 301 duties, serve a “trade-related, remedial purpose.” And the appeals court prohibited deducting Section 201 duties from an export price in Wheatland Tube Co. v. U.S.

“This Court should decline the Government’s invitations to extend Borusan [Mannesmann Boru Sanyi ve Ticaret A.S. v. U.S.] and follow Shanghai Tainai Bearing Co. v. U.S.,” it said.

The former case, heard in CAFC, discussed Section 232 duties, which are distinguishable because those address threats to national security, it said. And the latter case isn’t binding and reached the wrong conclusion because it relied on Borusan, it said.

The exporter also touched on challenges to its Cohen’s d test and surrogate value charges.