United States Court of International Trade

Slip Op. 21-67

Before the Court in Fabuwood Cabinetry Corp., et. al., v. United States, et. al., Consol. Court No. 18-00208, Slip Op. 21-67 (May 27, 2021) was a scope ruling regarding antidumping duty and countervailing duty orders on certain hardwood plywood products from China. Id. at 2. In its previous opinion, the Court remanded “the scope ruling to Commerce for further explanation on whether the Amended Scope Ruling Request met the regulatory requirements” for providing a basis for Commerce to conduct a scope inquiry. Id. at 5. On remand, “Commerce concluded that the Amended Scope Ruling Request was deficient and unable to be a basis for Commerce’s scope inquiry.” Id. at 7. “Commerce also noted that it would allow a further amended or revised scope ruling request apart from the instant case or to submit a new scope request to be submitted.” Id. In its comments, CNC noted its disagreement with Commerce’s determination that the product descriptions were sufficient in the scope request, but that “it agrees with and supports Commerce’s conclusion that Petitioner-Masterbrand’s request for a scope ruling was deficient in other critical respects and therefore did not provide a sufficient basis for Commerce to issue a Final Scope Ruling.” Id. Petitioner-Masterbrand stated that they “disagree with Commerce’s conclusion and reasoning in its final determination and believe that the scope request complied with Commerce’s regulations.” Id. However, Petitioner-Masterbrand noted their position that “the most effective and efficient way for [them] to address the scope questions raised in the scope request is to refile any needed scope request with the agency.” Id. “No other parties submitted comments on the Remand Results.” Id. In response to the comments filed, the Government contended that Commerce’s Remand Results can be sustained “because Commerce complied with the [c]ourt’s remand order and its determination is supported by substantial evidence and otherwise in accordance with law.” Id. at 8. For the following reasons, the Court affirmed Commerce’s Remand Results and entered judgment for the Government. Id. at 3.

“The court shall hold unlawful any determination, finding or conclusion found . . . to be unsupported by substantial evidence on the record, or otherwise not in accordance with law.” Id. at 5. The court also reviews the determinations pursuant to remand “for compliance with the court’s remand order.” Id. Here, the Court concluded that Commerce complied with its remand order as set forth in Fabuwood I, 469 F. Supp. 3d at 1389. Id. at 8. “Commerce addressed and adequately explained the parties’ arguments regarding the sufficiency of the Amended Scope Ruling Request.” Id. The Court explained that “[n]o party contests Commerce’s Remand Results, despite some disagreement with certain aspects of that determination.” Id. Therefore, the Court did not need to address the outstanding disagreements and concluded the Remand Results should be sustained as supported by substantial evidence and in accordance with law. Id. As such, the Court sustained Commerce’s Remand Results and entered judgment accordingly in favor of Defendant. Id.

Slip Op. 21-68

Before the Court in Carpenter Technology Corp., et. al., v. United States, et. al., Court No. 19-00200, Slip Op. 21-68 (June 2, 2021) were Commerce’s final results upon remand redetermination in the administrative review of the antidumping duty order on stainless steel bar from India, as well as a proposed defendant-intervenor’s motion to intervene. Id. at 1. Plaintiffs commenced this action alleging, inter alia, that Commerce failed to adequately explain its selection of partial adverse facts available (or “partial AFA”) used to determine Defendant-Intervenors’ (“Venus”) antidumping duty margin. Id. at 2-3. “In the remand redetermination, Commerce further explained its partial AFA methodology used in the final Results” and “Commerce made three corrections to Venus’s margin calculation program, which increased its rate from 5.35 percent to 24.60 percent.” Id. at 3. “Venus submitted comments on the Remand Results contending that the three adjustments to its margin program are not in accordance with the law and exceed the scope of the court’s remand order.” Id. at 3-4. The Government and Plaintiffs urged the Court to sustain the Remand Results in their entirety. Id. at 4. The Government contended that the Court should reject Venus’s argument that Commerce exceeded the scope of the remand order because Venus did not exhaust its administrative remedies with respect to this argument. Id. at 9. Following Commerce’s issuance of the Remand Results, Laxcon Steels Limited (“Laxcon”), “a producer/exporter of the subject merchandise . . . who contested” the rate assigned to non-individually examined respondents in the Final Results, filed a motion for permissive intervention as a defendant-intervenor. Id. at 3. “Plaintiffs and the Government opposed Laxcon’s motion” and “Venus took no position on the motion.” Id. For the following reasons, the Court denied Laxcon’s motion and sustained Commerce’s Remand Results. Id. at 4.

“The court will uphold an agency determination that is supported by substantial evidence and otherwise in accordance with law. 19 U.S.C. § 1516a(b)(1)(B)(i).” Id. at 4. “The results of a redetermination pursuant to court remand are also reviewed for compliance with the court’s remand order.” Id. U.S. Court of International Trade (“USCIT”) Rule 24 provides for two types of intervention: intervention of right and permissive intervention. Id. at 7. A party must seek intervention as a matter of right “no later than 30 days after the date of service of the complaint” unless the party can show good cause for the delay. USCIT Rule 24(a)(3). Id. Alternatively, a party may move for permissive intervention, in which case “the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.” USCIT Rule 24(b)(3); see also 28 U.S.C. §2631(j)(2). Id. “Unless specifically directed by the court, Commerce has broad discretion to fully consider the issues remanded.” Id. at 9. Commerce may rely on AFA to induce respondents to cooperate with the agency’s investigations in the future and “ensure that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully.” Id. at 11-12. Here, the Court “declined to construe [Laxcon’s] motion as one to intervene as of right.” Id. at 8. The Court denied Laxcon’s motion because the statute does not permit Laxcon to intervene as a permissive intervenor in this case. Id. at 8. Additionally, the Court found that “Commerce did not exceed the scope of the remand order by making the corrections at issue.” Id. at 11. Furthermore, the Court explained that “Venus does not explain why it considers that the corrections at issue were unlawfully punitive, inappropriate, or unreasonable in the exercise of the agency’s discretion to select facts available with an adverse inference to fill gaps in the record that Venus did not otherwise fill.” Id. Thus, the Court rejected Venus’s argument that Commerce’s reasons for making the corrections at issue were unlawful. Id. at 12. For these reasons, the Court found that the Remand Results were supported by substantial evidence, in accordance with the law, and consistent with the Court’s remand order. Id. at 14. As such, the Court sustained Commerce’s Remand Results denied Laxcon’s motion to intervene. Id.