Commerce Excludes 7 Magnesia Carbon Brick Types From AD/CVD Orders for Containing Alumina
The Commerce Department excluded seven types of bricks imported by Fedmet Resources Corp. from the scope of the antidumping and countervailing duty orders on magnesia carbon bricks from China on remand at the Court of International Trade. The agency said, under protest, that the seven brick types had an "above-zero quantity of alumina and were based on testing procedures which properly determined the alumina content at the time of importation" (Fedmet Resources Corp. v. United States, CIT # 23-00117).
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For the remaining four types of bricks at issue, Commerce said it will "instruct CBP to apply the standard set forth by the Court to determine whether" the bricks are subject goods, since the testing records aren't on the record of the case.
The case concerns a merchandise scope referral in an AD/CVD evasion case on 11 of Fedmet's brick types, which the trade court remanded late last year (see 2412130061). The court said Commerce ignored the U.S. Court of Appeals for the Federal Circuit's standard for assessing the scope of the orders when issuing its scope referral decision.
CIT held that a 2014 CAFC decision "teaches that the addition of any alumina to [a magnesia carbon brick] takes it outside the orders.” However, Commerce relied on its own 2015 scope ruling, issued after the Federal Circuit case, which said magnesia carbon bricks with an alumina content below 5% are subject to AD/CVD.
On remand, Commerce said that since seven of Fedmet's bricks are certified to have a non-zero alumina content, they are subject goods, given the trade court's ruling. The agency said each of the seven samples "contained an above-zero quantity of alumina and were based on testing procedures which properly determined the alumina content at the time of importation."
For the four remaining samples, the testing results showing a non-zero alumina content weren't on the record, and while CBP retested the four samples using the X-ray diffraction testing method, these results also aren't on the record. As a result, Commerce, as contemplated by the court, said it will tell CBP to apply the CAFC's standard to the four samples.
The petitioner, the Magnesia Carbon Bricks Fair Trade Committee, submitted comments on Commerce's draft remand challenging the agency's decision. The committee argued that the trade court misinterpreted the Federal Circuit's decision, since the appellate court "recognized that [magnesia carbon bricks] could have some amount of alumina less than that required to form spinel (i.e., a characteristic that distinguishes [magnesia alumina carbon bricks] from [magnesia carbon bricks]) and would not be considered to be [magnesia alumina carbon bricks] per the common industry understanding."
The trade court's "erroneous interpretation" of the CAFC decision "would eviscerate" the AD/CVD orders, since "exporters very easily could add small amounts of alumina to their" bricks "merely to avoid duties." This result would be "incongruous with the entire history of this case" and would be "devastating to the domestic industry," the committee said.