Trade Updates for Week of September 25, 2019

United States Court of International Trade

Court Held Commerce Abused Discretion By Rejecting Record Documents

Before the Court in Bosun Tools Co. et. al. v. United States et.al., Slip Op. 19-125, Court No. 18-00102 (September 23, 2019) was a consolidated challenge to Commerce’s final determination in the seventh administrative review of the antidumping duty (“ADD”) order covering diamond sawblades and parts thereof from the People’s Republic of China (“PRC”). Chengdu Huifeng New Material Technology Co., Ltd. (“Chengdu”) challenged Commerce’s decision to reject and remove from the record Chengdu’s supplemental response. Chengdu’s counsel had timely filed the complete unredacted version of the submission. However, when Chengdu attempted to file the redacted version of the submission, only the subparts containing the exhibits were uploaded. After the filing deadline passed Commerce rejected the submission. Chengdu and other parties challenge Commerce’s use of total adverse facts available against Chengdu and all other companies qualifying for a separate rate. For the following reasons the Court concluded Commerce abused its discretion by rejecting Chengdu’s second supplemental response, but did not reach the parties’ challenges to Commerce’s application of AFA.

“An agency abuses its discretion when it issues a decision that represents an unreasonable judgment in weighing relevant factors.” Id. at 9. “Factors found to be relevant in reviewing Commerce’s decision to reject corrective information include Commerce’s interest in ensuring finality, the burden of incorporating the information, and consideration of whether the information will increase the accuracy of the calculated dumping margins.” Id. The Court said “Commerce abused its discretion by rejecting Chengdu’s attempt to re-file the redacted version of a document.” Id. at 10. The Court said “Commerce has not explained why it would be burdensome to incorporate the information.” Id. at 11. The Court rejected the notion a general prejudice because of tardiness could exist in this case because due to of the cases unique circumstances. Finally, the Court said “Commerce’s rejection of Chengdu’s submission will likely undermine the accuracy of the dumping margins calculated in this case.” Id. at 12. 

 

Court Sustained Commerce’s Redeterminations in Countervailing Duty Investigation

Before the Court in Tosçelik Profil ve Sac Endüstrisi A.S. et. al. v. United States et. al., Slip Op. 19-124, Court No. 17-00225 (September 20, 2019) Commerce’s remand determinations regarding the countervailing duty investigation of welded carbon steel pipes from Turkey from a previous order in the case. The Court had remanded for Commerce to address Consolidated Plaintiff, Erbosan Ericyas Boru Sanyai ve Ticaret A.S. (“Ersoban”) knowledge of U.S. entries of its circular welded carbon steel pipes and tubes were relevant in determining whether the company qualified for a no shipment certification. On remand, Commerce determined knowledge of U.S. entries was not a necessary condition for determining whether Ersoban had reviewable entries in the period of review. Commerce, again, refused to rescind the administrative review of Ersoban and continued to assign the company the non-selected rate of 6.64%. For the following reasons, the Court sustained Commerce in full.

Ersoban argued that 19 U.S.C. § 1671 required Commerce to consider a respondent’s knowledge in determining whether to impose a countervailing duty, including when evaluating a request for a no shipment certification. However, the Court said Ersoban “does not explain how § 1671 (a)(1) … unambiguously requires knowledge.” Id. at 7. “Ersoban does not provide any legal basis for its argument.” Id. The Court also dismissed Ersoban’s arguments that “Commerce was required to conduct a pass through analysis to determine whether” a subsidy was granted to Ersoban. The Court concluded Commerce’s explanation was reasonable and sustained the agency.