Commerce Bucks CIT Precedent in Denying Pirelli Separate Rate Status, Tire Co. Tells CIT
The U.S. and the relevant antidumping duty petitioner "fail to understand or simply ignore" key Court of International Trade precedent which says that the Commerce Department has to look at the factual distinction between scenarios where Chinese government-controlled companies had a majority interest in the respondent and where they had a minority interest, Pirelli Tyre Co. argued in a Nov. 3 reply brief. Telling the trade court that Commerce's decision to deny Pirelli separate rate status was both illegal and unsupported by substantial evidence, the exporter argued that both the U.S. and the AD petitioner also failed to understand past precedent establishing that Commerce's "beholden theory" must be linked to specific evidence (Pirelli Tyre v. United States, CIT #20-00115).
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The case involves the 2017-18 administrative review of the antidumping duty order on passenger vehicle and light truck tires from China and was brought by Pirelli Tyre, which had received the all-others rate in the review. In its opening brief at CIT, Pirelli argued three main points: (1) Commerce failed to adhere to past CIT precedent that the agency's analysis of the ability to rebut the presumption of government control had to show the factual distinction between times where the Chinese government had a majority and minority stake in the respondent, (2) Commerce applied a "control theory" that cut against CIT precedent, and (3) Commerce failed to stick to CIT precedent that the agency was required to give meaning to the words "export activities" in its separate rate analysis.
On the lattermost point, the U.S. said that the agency is not required to set up a link between a respondent's export activities and its analysis of the de facto control factors and that it only needs to look at the record's factual elements on export activities. This position is "completely inconsistent with the CIT case Guizhou Tyre Co. v. U.S., Pirelli argued. In that case, the court said that Commerce's reasoning is flawed as to whether its inquiry is focused on the government control of export activities. The same is true in the present case, presenting a legal flaw to Commerce's analysis, the brief said.