United States Court of International Trade

Slip Op. 20-80

Before the Court in DAK Americas LLC, et. al., v. United States, et. al., Slip Op. 20-80, Court No. 18-00238 (June 4, 2020) was a challenge to the International Trade Commission’s (“Commission”) final determination that the PET resin industry in the United States was not materially injured by imports from Brazil, Indonesia, Korea, Pakistan, and Taiwan. Id. at 3. Plaintiffs argued that the Commission failed to explain why the underselling demonstrated on the record was not significant in light of prior Commission and Court decisions finding mixed underselling significant; and the Commission’s determinations that subject imports predominantly oversold domestic product and that supply constraints explained the surge of subject imports were not supported by substantial evidence. The Government responded that the Commission was under no obligation to address prior determinations because each investigation is sui generis and the determinations were supported by substantial evidence. For the following reasons, the Court remanded the Commission’s determination for reconsideration.

 “The Tariff Act requires that the Commission provide ‘an explanation of the basis for its determination that addresses relevant arguments.’” Id. at 13. First, the Court determined that “the Commission’s conclusion that there was no significant underselling is not supported by substantial evidence because the Commission failed to address or distinguish applicable findings of a general nature from prior determinations and the Commission did not address conflicting evidence.” Id. at 15. Second, the Court determined “the Commission’s finding that supply constraints, rather than underselling, were the cause of market share shifts is unsupported by substantial evidence because there was a lack of evidence of supply constraints prior to October 2016”. Id. The Court instructed the Commission “to address and distinguish on remand any applicable findings of a general nature from prior determinations that conflict with its ultimate determination regarding underselling and supply constraints.” Id. As such, the Court remanded the case to the Commission for further proceedings consistent with this opinion. Id. at 41.

Slip Op. 20-81

Before the Court in Guizhou Tyre Co., Ltd., et. al., v. United States, Slip Op. 20-80, Court No.18-00100 (June 5, 2020) were Commerce’s redetermination results pursuant to Court remand (“Second Redetermination”) regarding a 2015 administrative review of a countervailing duty order on off-the-road tires from China. Id. at 2. In compliance with the Court’s most recent opinion and order, Commerce had removed the subsidy rate for the Export Buyer’s Credit Program (“EBCP”) and recalculated Plaintiffs’ duty rate. Id. Plaintiffs “filed letters indicating that they agreed with the Second Redetermination, and would not submit further comments.” Id. at 4. For the following reason, the Court sustained Commerce’s Second Redetermination.

“As Plaintiffs have not objected to the Second Redetermination, the Court limits its review to confirming whether Commerce has complied with the court’s remand order and has done so in a manner that is supported by substantial evidence and in accordance with law.” Id. at 4. As Commerce has followed the Court’s order to “attempt verification of the submitted non-use declarations from Plaintiffs’ U.S. customers,” and “Commerce concluded that the factual record in this case indicates that there was no use of the EBCP by Guizhou, and as Commerce has made this finding in accordance with the substantial evidence on the record as the Court discussed in Guizhou I and Guizhou II[,]” the Court found the Second Redetermination complied with the remand order, was supported by substantial evidence, and was in accordance with law. Id. at 5. As such, the Court sustained Commerce’s Second Redetermination.