Trade Updates for Week of November 7, 2018

United States Court of International Trade

ITC Decision on Truck and Bus Tires Remanded in Part

Before the Court in United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union et. al. v. United States et. al., Slip Op. 18-151, Court No. 17-00078 (November 1, 2018) was plaintiffs’ challenge to the International Trade Commission’s (“ITC”) final negative material injury determination in the antidumping and countervailing duty investigations of truck and bus tires from China. Plaintiffs argued that the ITC’s findings on the conditions of competition, negative findings on adverse price effects, adverse impact, and threat determination were not supported by substantial evidence. For the following reasons the Court sustains the ITC on three of the issues, and remands one issue to the ITC for redetermination.

“The possibility of drawing two inconsistent conclusions from the evidence does not prevent the court from holding that the Commission’s determinations, findings, or conclusions are supported by substantial evidence.” Id. The Court said the ITC’s determinations on competition, that there was a high degree of substitutability among tires, three product tiers, and the importance of other major factors then price as a buying decision were all supported by substantial evidence because the ITC properly relied on the agency’s questionnaire responses in making the decisions. The Court also said the ITC’s negative adverse impact decisions was based on substantial evidence because “plaintiff’s assertions are an impermissible reweighing of the evidence.” Id. at 14. However, the Court did find the ITC’s determinations regarding negative adverse price effect were not supported by substantial evidence because the ITC “did not reference any statistics, and neglected to explain how its observation supported its conclusion.” Id. at 11. The Court declined to analyze the negative threat determination until after the remand regarding adverse price effect was conducted.

Decision on Certain Frozen Fish Fillets from Vietnam Remanded in Regards to NME and Vietnam Wide Rate

Before the Court in Thuan An Production Trading and Service Co., Ltd. et. al. v. United States et. al., Slip Op. 18-152, Court No. 17-00056 (November 5, 2018) were plaintiffs’ challenges to Commerce’s determination in the 12th annual review of the antidumping duty order covering certain frozen fish fillets from Vietnam. Plaintiffs challenged the asserted legal grounds which Commerce used to determine a non-market economy (“NME”) dumping rate for Vietnam, Commerce’s assignment of the $2.39 Vietnam wide rate to plaintiff, and Commerce requiring plaintiff to report its factors of production (“FOP”) on a CONNUM-specific basis. For the following reasons the Court sustains Commerce’s determination on the FOP reporting, but remands the issues involving the NME and Vietnam wide rate to Commerce for reconsideration.

“19 U.S.C § 1673d instructs that Commerce may establish two kinds of rates, … for each exporter and producer individually investigated and determine . . . the estimated all-others rate for all exporters and producers not individually investigated.” Id. at 9. The Court said here that the rate Commerce established was not one of the statutorily authorized rates because Commerce itself calls the established rate “a single country-wide rate … a rate that is not an individual rate or an all-others rate.” Id. at 12. The Court also found the assignment of the $2.39 rate not to be valid because NME rate itself was not authorized. The final issue was requiring the plaintiff to report its FOP on a CONNUM specific basis. Plaintiffs argued that Commerce failed to advise them of the CONNUM basis for reporting and that it was impossible to provide the information. However, the Court found Commerce’s decision to be valid because the agency had used the CONNUM data for other reviews of this antidumping order and notified producers of their intent to use the data before starting previous reviews.