Trade Updates for Week of August 14, 2019

United States Court of International Trade

Court Sustains Commerce’s Determination in Countervailing

Before the Court in Rebar Trade Action Coalition v. United States et. al., Slip Op. 19-107, Court No. 18-00160 (August 8, 2019) was a challenge to Commerce’s final negative determination in the countervailing duty (“CVD”) order on steel concrete reinforcing bar (“rebar”) from Turkey. In November of 2014, Commerce issued a countervailing duty order on rebar from Turkey. Upon review of its order finding a countervailable subsidy for the provision of natural gas to Turkish rebar producers, Commerce calculated a CVD rate using only Azerbaijani domestic prices because those prices represented the most reliable world market price on the record with an inflow pipeline connection to Turkey. Id. at 8. Rebar Trade Action Coalition (“RTAC”) challenged that determination as not supported by substantial evidence and not in accordance with law. RTAC attacked Commerce’s implicit finding that the record did not support a determination that there was an inflow pipeline connection from Greece to Turkey as such a connection would have enabled Commerce to utilize different prices. Id. at 10. For the following reasons, the Court sustained Commerce’s determinations in full.

Substantial evidence “is something less than the weight of the evidence,” but “is more than a mere scintilla,” Id. at 7. Ultimately, “the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Id. “Commerce may, based on its experience in administering the statute, make justifiable inferences on the record before it,” so long as those inferences are supported in the record and logically related to the facts found. Id. In this case, RTAC argued that the evidence did not definitively eliminate the possibility that the pipeline flowed from Greece to Turkey. Id. at 11. However, the Court found that the record did not allow for an inference that there is an inflow connection with Greece. Id. at 10. The Court reasoned that “[a]lthough Commerce has authority to place documents in the administrative record that it deems relevant, the burden of creating an adequate record lies with [interested parties] and not with Commerce.” Id. at 11. The time to submit information regarding the Turkey-Greece pipeline flow had passed, and the Court found that RTAC had not presented evidence supporting its desired outcome, and thus it failed to meet its burden. Id. at 12. The Court also found that Commerce’s decision to calculate a Tier 2 benchmark using only the Azerbaijani prices was supported by substantial evidence because Commerce cited sufficient evidence and made permissible inferences in finding that only certain countries have an inflow pipeline connection with Turkey.” Id. at 15.

Court Denies Defendant’s Motion to Dismiss and Grants Plaintiff’s Motion to Consolidate in Antidumping Case

Before the Court in Oman Fasteners, LLC v. United States et. al., Slip Op. 19-108, Court No. 18-00244 (August 8, 2019) was a challenge to certain aspects of the final results of Commerce’s second administrative review of the antidumping duty order on certain steel nail from the Sultanate of Oman. Before the Court are two motions: (1) the Government’s motion to dismiss the complaint for lack of subject-matter jurisdiction, and (2) Oman’s motion to consolidate this action with the Mid Continent case challenging the same determination. Id. at 2. Defendant claimed that Oman lacks constitutional standing to bring a lawsuit challenging the Final Results because it received a zero percent margin in the administrative review. Id. at 3.

Plaintiff alleged sufficient injury for constitutional standing purposes, namely, “a concrete procedural injury—the potential for permanent loss of its right to challenge Commerce determinations that Oman Fasteners believes were unlawful.” Id. at 3. For the following reasons, the Court denied Defendant’s motion to dismiss and granted Plaintiff’s motion to consolidate.

Injury in fact is one of the three elements that must be present before a plaintiff can be found to have constitutional standing. Id. at 7. Though often stated as requiring a “concrete and particularized” injury, economic harm is not a standing requirement. Id. at 11. Neither “is present injury a standing requirement. Rather, the threat of injury may suffice for standing purposes, so long as it is not conjectural or hypothetical.” Id. at 11. The Court found Oman had standing because the determinations challenged by Plaintiff were also before the Court in Mid Continent, where Plaintiff is a defendant-intervenor. The Court said status as an intervenor argued in favor of plaintiff being granted standing in this case. Id. The Court found it was likely that unless Plaintiff was permitted to pursue the claims in its complaint through this action, it would never have the opportunity to do so in the context of Mid Continent because Plaintiff could not bring crossclaims in Mid Continent without “impermissibly expanded the scope of [Mid Continent] beyond the issues raised by Mid Continent’s complaint. Id. The Court also found Plaintiff’s complaint would have been sufficient for it to have standing were its claims being heard under the procedures of the Declaratory Judgment Act. While the injury that might befall Oman was not imminent, it is not more remote than those found to fall within Article III in other contexts. Id. at 16. As such, the Court found Oman had standing to bring its case and consolidated the case with Mid Continent.

Court Remands Commerce’s Scope Ruling in Antidumping and Countervailing Case

Before the Court in TMB 440AE, Inc. v. United States, Slip Op. 19-109, Court No. 18-00095 (August 13, 2019) was a challenge to Commerce’s final scope ruling regarding certain seamless carbon and alloy steel pipe from the People’s Republic of China imported by TMB 44AE, Inc., formerly known as Advance Engineering Corporation (“AEC”). AEC contested Commerce’s finding that the plain scope language of the antidumping and countervailing duty orders was unambiguous and included plaintiff’s product in the orders without considering other regulatory factors. For the following reasons, the Court remanded Commerce’s final scope determination for reconsideration.

“Whether the order is ambiguous or not, Commerce’s regulations are unambiguous– it will take into account” the (k)(1) criteria in conducting a scope determination.” Id. at 9.

Commerce must consider “the descriptions of the merchandise contained in the petition, the initial investigation, and the determinations of the Secretary (including prior scope determinations) and the Commission.” Id. at 4. If these “(k)(1) sources” are dispositive, Commerce can end its inquiry and issue a final ruling. Id. at 5. If not, Commerce must conduct a formal scope inquiry and consider “(k)(2) factors.” Id. The Court found that “AEC sufficiently challenged the inclusion of its pipe in the Orders based on (k)(1) sources and so Commerce was not free to ignore these sources.” Id. The Court said “by not considering the (k)(1) sources, as required by regulation, Commerce created a situation in which duties might be assessed against products without an injury determination.” Id. at 12. As such, the case was remanded for consideration of the regulatory factors.