CIT Can't Tell Commerce Not to Do Something It Didn't Do, CVD Petitioner Says of All-Others Rate

Steel wheel importer Rimco seeks relief at the Court of International Trade over the Commerce Department's all-others rate in a countervailing duty review by asking the court to order Commerce not to do something that it did not do in the first place, defendant-intervenor Dexstar Wheels said in a Jan. 24 brief. Asking the trade court to toss the case, Dexstar said that Rimco failed to state a claim for which relief can be granted since Commerce did not actually set an all-others rate in the review (Rimco v. United States, CIT #21-00588).

Rimco is contesting the final results in the 2019 review of the countervailing duty order on certain steel wheels 12 to 16.5 inches in diameter from China. In the review, Commerce ended up rescinding the reviews for two of the respondents and slapping the remaining three with an adverse facts available rate of 388.31% due to their refusal to cooperate with the government. Since Commerce either rescinded or applied total AFA to the reviews for each of its five respondents, Dexstar said that there were no other respondents for which the agency needed to find a rate in the review. "Indeed, nowhere in its preliminary determination does Commerce even mention an 'all-others' rate for the review," the brief said.

In its complaint, Rimco said it asked Commerce to calculate the all-others rate without the adverse facts available inferences used against the mandatory respondents, suggesting instead that the agency should use the 58.30% non-AFA CVD rate established during the preliminary results (see 2112010029).

"Yet despite affirmatively recognizing that such [an] 'all others rate' would apply to 'the remaining non-mandatory respondents,' Plaintiff never explained what 'remaining non-mandatory respondents' were left in this review for an all-others rate to apply to," Dexstar said. "Instead, Plaintiff simply claimed that Commerce should calculate a rate using a different methodology suggested by Plaintiff 'for other Chinese companies' without identifying what those other companies that rate would ever apply to."

Dexstar alleged that the plaintiff "continues to simply dance around the central issue" that no all-others rate was actually calculated for the review and "entirely glosses over the fact that Commerce addressed each respondent in the review individually" without ever determining any all-others rate. "Plaintiff asks this Court to grant it relief by ordering Commerce not to do something that Commerce did not do," the motion to dismiss said.