US, MAC Brick Importer Trade Briefs on Impact of Recent CAFC Scope Decision
The U.S. and importer Fedmet Resources filed dueling briefs at the Court of International Trade discussing the impact of a recent U.S. Court of Appeals for the Federal Circuit decision in an antidumping scope case, Saha Thai Steel Pipe Public Co. v. U.S.
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The government said the decision supports the Commerce Department's use of (k)(1) sources in the scope decision at issue and shows that Fedmet's claims ask the trade court to "discount the deference owed to Commerce under the governing substantial evidence standard of review and in matters particularly within the agency’s expertise." Meanwhile, Fedmet undercut the importance of Saha Thai on the ground that the Federal Circuit already ruled on whether its products fall within the scope of the AD/CVD orders on magnesia carbon bricks from China (Fedmet Resources v. U.S., CIT # 23-00117).
The U.S. said that Saha Thai is relevant to the present case, given that it recognized the agency's discretion to consider (k)(1) sources in scope cases. In its decision, the appellate court clarified that there's "only one framework" for reviewing an order's scope, which starts with the scope language itself (see 2405150027). The CAFC said that even though the plain scope language settled the issue in Saha Thai, Commerce could consider (k)(1) sources in cases, like Fedmet's, where the scope ruling was requested, disputed and appealed, the government said.
As a result, the decision supports the consideration of (k)(1) sources to find whether Fedmet's products fall within the scope of the orders, particularly the use of a separate scope ruling requested by S&S Refractories, the brief said. The government claimed "it was lawful for Commerce to exercise its discretion in not confining itself to consideration of only the Fedmet Ruling given that the S&S Refractories Ruling is the only prior scope ruling that addresses testing methods for added alumina."
In its brief, Fedmet said that Saha Thai is irrelevant since the question of whether the orders apply to Fedmet's merchandise "has already been conclusively construed by the CAFC." Given this ruling, "Defendant was obligated to abide by the CAFC’s ruling that all MAC bricks are excluded from the scope of the Orders, without limitation by any specific cut-off or testing methodology. Nothing in Saha Thai alters that obligation."