Chinese Exporter Blasts DOJ's Mischaracterization of Its Position on Like Product Argument
The Department of Justice mischaracterized plaintiff Jeld-Wen's position in its challenge to an International Trade Commission injury determination to support a "baseless exhaustion argument" and cover up the ITC's "erroneous and inconsistent like product analyses," Jeld-Wen said in a Dec. 23 reply brief. Instead, Jeld-Wen argued, it had exhausted all administrative remedies over its like product challenge and its claims over the deficiencies in the ITC's like product analyses are backed by substantial evidence (Jeld-Wen, Inc.v. U.S., CIT #21-00114).
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Jeld-Wen's case concerns the ITC's final injury determination that served as the basis for the antidumping and countervailing duty orders on wood moldings and millwork products (WMMP) from China. In the investigation, the ITC found that laminated veneer lumber (LVL) and traditional, solid wood moldings and millwork products are a single like product, while medium density fiberboard (MDF) and traditional WMMP aren't like products.
Replying to DOJ's and defendant-intervenor Coalition of American Millwork Producers' briefs, Jeld-Wen said that it actually did exhaust administrative remedies prior to launching its case at CIT. DOJ said that the plaintiff is asking the trade court to compare LVL and MDF even though it never asked the ITC to do this. But Jeld-Wen said that this is a mischaracterization of its position.
"Jeld-Wen is not asking this Court to compare LVL to MDF," the brief said. "Jeld-Wen is asking this Court to recognize that the Commission could not rationally define a single domestic like product as one which includes LVL but excludes MDF. Jeld-Wen repeatedly argued in the underlying administrative proceeding that LVL should be classified as a separate like product, and specifically raised the issue of the inconsistency in the Commission’s treatment of LVL and MDF in its Posthearing Brief." The plaintiff also piggybacked on another party's argument that said that it would be "somewhat illogical" for the ITC to exclude MDF from the domestic like product definition while including LVL.
Jeld-Wen said ITC's like product analysis reveals "glaring inconsistencies" that show that the commission's ultimate like product determination on LVL was unsupported by enough evidence. "Jeld-Wen is not ... asking this Court to change the priority of the relevant like product factors, to reweigh or judge the credibility of conflicting evidence, or to undertake an 'alternative comparison' of MDF and LVL," the brief said. "Rather, Jeld-Wen’s discussion of the Commission’s like product analysis of LVL and MDF demonstrates that the Commission’s determination to include LVL in its like product definition while excluding MDF lacks a rational connection to the facts."