United States Court of International Trade

Slip Op. 20-44

Before the Court in TMB 440AE, Inc. v. United States, Slip Op. 20-44, Court No. 18- 00095 (April 6, 2020) was Commerce’s remand determinations regarding whether seamless pipe imported by plaintiff was within the scope of antidumping and countervailing duty orders on certain seamless pipe from China. The Court had previously remanded for Commerce to consider “the sources listed in 19 C.F.R. § 351.225(k)(1)1 (“(k)(1) sources”) in making its assessment of the scope of the Orders and to proceed to consider the factors listed in 19 C.F.R. § 351.225(k)(2) (“(k)(2) factors”) if these sources were not dispositive.” Id. at 2. On remand, Commerce considered the (k)(1) sources to ascertain the intended meaning of “aerospace specifications” and the ASTM A-335 exclusion in the orders. The agency found that AEC’s pipe was not within either. For the following reasons, Commerce’s determinations are remanded again.

Initially, the Court sustained “Commerce’s finding that AEC’s pipe does not fall within the aerospace specification exclusion.” Id. at 9. However, in regards to the ASTM A-335 exclusion, the Court said “Commerce’s explanation and analysis do not sufficiently address the issue at hand.” Id. at 10. The Court had previously said plaintiff “might be correct that excluding the A-335 pipe was indicative of an intent to exclude those types of specialized pipe that was not realistically interchangeable with the types of pipe covered by the Orders.” Id. at 10. The Court noted it remained “unclear if AEC pipe should also be considered inherently different from the subject pipe,” because Commerce “did not properly consider all (k)(1) source material, positive and negative” in its analysis of the exclusion. Id. at 11. As such, the case was remanded again.

Slip Op. 20-45

Before the Court in Bio-Lab, Inc. et. al. v. United States, et. al., Slip Op. 20-45, Court No. 18-155 (April 7, 2020) was a challenge to Commerce’s determinations in the second administrative review of the countervailing duty order on chlorinated isocyanurates from China. In specific, plaintiffs challenged Commerce selection of a 0.87% adverse facts available (“AFA”) rate to apply to the Chinese Export Buyers Credit Program, due to the lack of cooperation from the Chinese Government, as unlawful because “the rate fails to satisfy the purpose of the AFA statute and, therefore, is contrary to law” and because substantial evidence does not support the finding that the Export Buyer’s Credit Program and the Export Seller’s Credit Program, which the rate was based on, are similar. For the following reasons the Court sustained Commerce’s results.

“If Commerce uses an inference that is adverse to the interests of a party … in selecting among the facts otherwise available, it may . . . in the case of a countervailing duty proceeding: (i) use a countervailable subsidy rate applied for the same or similar program in a countervailing duty proceeding involving the same country; or (ii) if there is no same or similar program, use a countervailable subsidy rate for a subsidy program from a proceeding that Commerce considers reasonable to use.” Id. at 12. Commerce has developed a hierarchal system to apply this statute that places “greater emphasis on accuracy over deterrence … when dealing with cooperating respondents,” as is the scenario in this case. Id. at 19. Citing past precedent, the Court upheld Commerce’s hierarchical system and moved on to examine if the Export Sellers Credit Program was a similar program. The Court said because “each program’s purpose is to support Chinese industry by promoting exports,” and is administered by the Chinese Import Export Bank Commerce’s conclusion that the programs were similar was based on substantial evidence.