DOJ Opposes Separate Briefing Schedule Request From AD Case Challenger

The Department of Justice opposed the bid by plaintiffs in an antidumping duty challenge for a separate briefing schedule apart from a briefing on a voluntary remand requested by the defense, in an Oct. 12 reply brief at the Court of International Trade. The plaintiffs, led by Pirelli Tyre Co., feel as though the voluntary remand will not touch on the issues they raised by bringing their case to CIT, so they want a separate briefing schedule on their case. DOJ argues that this is "both inefficient and likely to lead to confusion of the issues in this case" (Pirelli Tyre Co., Ltd., et al. v. United States, CIT #20-00115).

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, which had received the all-others rate in the review. The review tapped Shandong New Continent -- another plaintiff in the case -- as the mandatory respondent, finding a zero percent dumping margin for the exporter. Following the review, CBP alerted Commerce to certain inaccuracies in SNC's reported sales prices on imports of the covered tires (see 2107260023).

DOJ then moved to lift the stay on the case and voluntarily remand the matter to the Commerce Department in light of these errors and a conclusion in the case China Manufacturers Alliance v. U.S. that had implications for Pirelli's case. In China Manufacturers Alliance, the Federal Circuit held that the adverse facts available country-wide rate can apply to cooperative respondents (see 2106100044). The court cited the resolution of the case as the reason for the stay to be lifted.

However, Pirelli pushed back on this motion, arguing that SNC's calculated rate had nothing to do with Pirelli and so didn't need to be considered in the case. Ultimately, the court disagreed, finding that the scope of the remand request was valid since calculating SNC's rate as the sole mandatory respondent could be relevant if Pirelli were to succeed in the case (see 2109200047).

Still taking issue with the voluntary remand, Pirelli filed a motion for clarification from the court, arguing that the voluntary remand would not be used to address any of the issues it raised in its complaint and simply be used to correct the inaccuracies in SNC's reported sales prices on imports of the tires. The motion for clarification sought a separate briefing schedule to address the claims that Pirelli brought before the court.

DOJ then stepped in with its opposition to this motion, finding that it would be "more efficient and less confusing" if only one briefing schedule existed. The defense also argued that the plaintiffs' proposal, which intersperses briefing on the remand results and their claims, gives no reason a briefing on the remand results should be expedited ahead of the briefing on the plaintiffs' claims. The proposed schedule is "extraordinarily expedited" as well, the brief said.

The U.S. then proposed its own briefing schedule that it believes would see the remand results filed in January 2022, the plaintiffs' Rule 56.2 briefing -- briefing on its claims -- and comments on the remand results filed in March, and DOJ's response to the 56.2 brief filed in May. The remainder of DOJ's proposed of schedule would wrap up in July 2022. DOJ consulted with the plaintiffs and defendant-intervenor regarding the schedule.