No Magnesia Carbon Bricks With Added Alumina Are Covered by AD/CVD, Exporter Says
A Chinese brick exporter fought back April 29 against opposition to its motion for judgment by the U.S. (see 2402130053) and domestic producers (see 2403120068), saying that its products weren't circumventing antidumping and countervailing duties on magnesia carbon bricks from China because the products are actually magnesia alumina graphite bricks, which are duty-free. The Commerce Department is “cherry-picking” evidence from prior scope rulings to prove otherwise, it said (Fedmet Resources v. U.S., CIT # 23-00117).
The Commerce Department has never specified what quantity of alumina makes a brick a magnesia alumina graphite brick rather than a magnesia carbon one, importer Fedmet Resources said. After being consulted by CBP during EAPA investigation, however, it determined that Fedmet’s bricks were the latter. On that basis, CBP found that the importer was circumventing AD/CVD orders.
Commerce relied on two earlier scope rulings, one initiated by Fedmet and one by another importer, to make its determination. But, despite what the U.S. and defendant-intervenor Magnesia Carbon Bricks Fair Trade Committee claimed, Commerce’s reliance on the latter was outside the scope of the department’s authority, Fedmet said.
“[E]ven … considering that scope ruling as a correct exercise of Commerce’s discretion, it simply confirmed that the specific merchandise for which [the other importer] requested a scope ruling is outside the scope of the Orders,” it said. “That decision cannot be a basis for finding that different merchandise is within the scope of the Orders.”
This was especially true because Fedmet’s bricks had themselves been determined, by the U.S. Court of Appeals for the Federal Circuit, to be out of scope of AD/CVD on magnesia carbon bricks, the importer said.
CAFC’s ruling excluded “all MAC bricks” from the AD/CVD orders, Fedmet said, rejecting the trade court’s holding that only some “high-alumina” bricks were.
“Because Commerce didn't find setting a cut-off point during the investigation as necessary for defining the scope of the Orders, no such cut-off point exists,” it said.
The U.S. didn’t address this argument at all in its opposition brief, Fedmet said. The Magnesia Carbon Bricks Fair Trade Committee did claim that the bricks involved in the current litigation are different than those discussed in CAFC’s ruling, but “[t]hey are not,” it said.
The committee was also wrong that CAFC's holding wasn't applicable to the present litigation because it “did not prescribe a particular cut-off point or testing method” for differentiating the two types of brick, Fedmet said. It said that, on the contrary, the appeals court had ruled that “any bona fide MCB containing added alumina constituted an excluded MAC brick for the purposes of the MCB Orders.”