DOJ Joins Bid to Toss CVD Case Since Importer Claims Commerce Took Action It Allegedly Didn't Take

DOJ joined a motion to dismiss a countervailing duty case originally filed by CVD petitioner Dextar Wheels arguing that the Court of International Trade cannot order the Commerce Department to correct something it did not do in the first place. Filing its own motion to dismiss on March 15, DOJ said that the plaintiff, steel wheel importer Rimco, failed to make a claim on which relief can be granted since Commerce did not even establish an all-others rate in a CVD review -- precisely what Rimco is challenging (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. 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).

Since Commerce either rescinded or applied total AFA to the reviews for each of its five respondents, Dexstar, in its motion to dismiss, said that there were no other respondents for which the agency needed to find a rate in the review (see 2201250070). DOJ echoed this argument in its own motion dismiss, urging the trade court to toss the matter.

"Because plaintiff fails even to allege facts demonstrating that Commerce took the action that it now purports to challenge, i.e., refusing to establish a non-AFA all-others rate when defendant did not establish an AFA all-others rate in the review, plaintiff has failed to state a claim upon which relief can be granted," the brief said. "Moreover, plaintiff’s complaint fails to state a claim upon which relief can be granted because plaintiff does not challenge Commerce’s treatment of any of the named respondents in the review."