During Oral Arguments, US Misrepresented Quotes, Backtracked, Thai Wheel Plaintiffs Claim

In a post-oral argument (see 2407250041) submission, all plaintiffs in a case regarding the scope of an antidumping duty order on steel wheels from China again pushed back against the government, saying that DOJ was misrepresenting communications during the order’s original investigation (Asia Wheel v. U.S., CIT Consol. # 23-00096).

The case asks how many Chinese-origin parts make an entire wheel of Chinese-origin -- rims, discs or both (see 2312010047). The orders’ language, plaintiffs say, covers wheels whose “rims and discs” come from China, meaning both components must be Chinese-origin. The government, on the other hand, claims that only one of the two components need to come from China in order for the entire wheel to be covered by the order (see 2403120058).

Commerce answered this exact question during the investigation itself, the plaintiffs claim, after two importers requested clarification be included in the language of the order. The department responded that the order itself was already sufficiently clear that only wheels with both Chinese-origin rims and discs were covered, they said.

DOJ’s claim during oral argument that Commerce “declined to respond to the importers’ ‘rims or discs’ scenario” actually referred to communications during the department’s preliminary determination only, they said.

“Defendant also continued to read out of context Commerce’s statement that it ‘does not foreclose a further analysis of substantial transformation should a product be completed in a third country from a mix of rim and disc parts ... ,’” the plaintiffs said. “Here, Commerce was rejecting Petitioner’s request to change ‘rims and discs from China’ to ‘rims or discs from China.’”

“Rim and disc parts” were not the same thing as “rims and discs,” they said.

“Commerce could have meant a number of scenarios” when referring to the former, they said, but the department “was clear” that the orders only cover wheels processed in third countries with rims and discs from China.

They also called the U.S. position about whether importers and exporters received adequate notice about the alleged expansion of the orders’ scope “incoherent.” At oral argument, the government “backtracked” from its original position that adequate notice was provided because Commerce said wheels with one Chinese component “may” be subject merchandise, they said; it instead claimed that adequate notice was provided by interim measures CBP imposed in an Enforce and Protect Act investigation. But that investigation looks into completed Chinese wheels allegedly transshipped through China, they said.

Plus, “Defendant now concedes that Importers lacked adequate notice about [the product] Method A Wheels until July 2020, when they first received notice of the EAPA investigation,” they said.