CIT Says Commerce Scope Ruling on Alumina Refractory Bricks Violates CAFC Precedent
The Commerce Department ignored court precedent when it found magnesia carbon bricks from China that contained alumina were subject to antidumping and countervailing duties, the Court of International Trade said in a decision issued Dec. 12.
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Remanding Commerce’s finding, which resulted from a covered merchandise referral in a CBP Enforce and Protect Act evasion investigation, the trade court said the U.S. Court of Appeals for the Federal Circuit had already ruled a decade ago that any amount of alumina content in a refractory brick exempts it from the scope of the AD/CVD orders on magnesia carbon bricks from China (see 14062022).
CBP had relied on Commerce’s scope decision to find Fedmet evaded those AD/CVD orders, despite the fact that Fedmet was also the plaintiff in the 2014 Federal Circuit case.
In the covered merchandise referral, Commerce had cited its own scope ruling issued in 2015, subsequent to the Federal Circuit decision, that said magnesia carbon bricks with an alumina content below 5% are subject to AD/CVD.
But the 2014 Federal Circuit decision “teaches that the addition of any alumina to [a magnesia carbon brick] takes it outside the orders.” That’s because, during the original AD/CVD investigations, the petitioners said magnesia alumina bricks shouldn’t be subject to AD/CVD, but made no distinction between refractory bricks having a high alumina content and those having a low alumina content.
“Under this rationale, which binds Commerce as much as this court, the agency had no power on remand,” whether in the original Federal Circuit case or the 2015 scope ruling, “to expand the scope of the orders to include low-alumina bricks -- for better or worse, they’re not covered, whether characterized as MCBs or MAC bricks,” said the trade court’s opinion, written by Judge M. Miller Baker. “‘No cut-off point’ for added alumina means no cut-off point,” the decision said.
(Fedmet Resources Corp. v. U.S., Slip Op. 24-136, CIT # 23-00117, dated 12/12/24; Judge: M. Miller Baker; Attorneys: Will Planert of Morris, Manning for plaintiff Fedmet Resources Corp; Brian Boynton for defendant U.S. government; Michael Taylor of King & Spalding for defendant-intervenor Magnesia Carbon Bricks Fair Trade Committee)