Trade Updates for Week of May 9, 2018

United States Court of International Trade

 

Remanded Decision in Certain Corrosion-Resistant Steel Products (CORE) Case

In JSW Steel Ltd. and JSW Steel Coated Products Ltd. v. United States, et al., Court No. 16-165, Slip Op. 18-51 (May 9, 2018), Plaintiffs JSW Steel Limited and JSW Steel Coated Products Limited (collectively, “Plaintiffs” or “JSW”), contest Commerce’s use of adverse facts available (“AFA”) in connection with a JSW affiliate called JSW Steel (Salav) Limited (“Salav”). Commerce initiated a CVD investigation into CORE from certain countries, including India, with a period of investigation (“POI”) of calendar year 2014. Certain Corrosion-Resistant Steel Products from the People’s Republic of China, India, Italy, the Republic of Korea, and Taiwan, 80 Fed. Reg. 37,223 (Dep’t Commerce June 30, 2015) (initiation). JSW was selected as a mandatory respondent and was asked to respond to several questionnaires. Commerce issued a CVD rate of 29.46% based on adverse facts available (AFA) because JSW withheld that Salav had been in operation during the POI, and therefore did not discuss activities of Salav or its subsidiaries during the POI.

However, the Court holds that the rate based on AFA was not supported by substantial evidence where JSW was not asked about Salav’s operational status and made no misrepresentations regarding same. One question is whether evidence indicates that Salav supplied an input for CORE production. JSW did correctly inform Commerce that in the final two months of the POI, Salav produced direct reduced iron or DRI, and made a small shipment of DRI to JSW. However, according to JSW, the Dolvi facility (i) is the only JSW facility capable of processing DRI, (ii) is incapable of producing subject merchandise, and (iii) did not send any inputs during the POI to Vijayanagar, the only JSW facility capable of producing subject merchandise.  Moreover, because Salav DRI was sent to Dolvi at the end of the POI, it was unlikely that the subject merchandise was finally produced until the after the POI.  Commerce has not verified this information, nor has it provided any evidence to contradict JSW’s representations.

The case was remanded because there was no evidence on the record to support Commerce’s use of adverse facts. The Court did not reach the merits of Commerce’s determination that JST failed to cooperate or arguments raised by JSW as to the reasonableness of the CVD rate.

 

Motion to Dismiss Granted in Garlic Case

In Coalition for Fair Trade in Garlic v. United States, Court No. 18-00005, Slip Op. 18-50 (May 4, 2018), the Court granted Defendant United States’ motion to dismiss plaintiff’s complaint, thereby rendering moot Plaintiff’s motions for a preliminary injunction and for judgment on the agency record.  In November of 2017, the Coalition for Fair Trade in Garlic (“CFTG”) filed a review request asserting status as a domestic interested party and asking Commerce to review “any exporters of fresh garlic. . . .during the period of review.”  CFTG did serve the review request to Harmoni, one Chinese garlic exporter.  However, because CFTG did not specify any exporters of Chinese garlic, its review request was denied.  Plaintiff filed a complaint and preliminary injunction motion asking to hold the review request valid.

The court granted Defendant’s motion to dismiss, because firstly, 1581(c) was not manifestly inadequate, and secondly, no final agency action was taken where Commerce’s final decision was not issued in the review.  CFTG could challenge a final decision to rescind the review of Harmoni, whether it occurs prior to or in conjunction with the publication of the final results of the review.  In regards to final agency action, Commerce has indeed initiated a review of Harmoni based on other review requests.