Commerce Failed to Make Indirect Reimbursement Adjustment in AD Case, US Steel Argues

The Commerce Department was wrong to "jettison" its prior regulations in not adjusting for the indirect reimbursement for antidumping duties paid in an administrative review on hot-rolled steel flat products from Australia, the U.S. Steel Corporation said in a July 13 reply brief. Responding to arguments made by Commerce and defendant-intervenor BlueScope Steel, U.S. Steel argued that the scope of Commerce's reimbursement regulation includes both direct and indirect reimbursement, which runs counter to Commerce's decision to not adjust for indirect reimbursement.

Commerce has previously defined indirect reimbursement as, "the exporter lower[ing] the amount invoiced to the importer ... for antidumping duties to be assessed," U.S. Steel said. Seeing as all parties conceded that this is precisely what BlueScope did, Commerce should have conducted an indirect reimbursement analysis "consistent with its long-standing definition of 'reimbursement' under its regulations," the domestic steel company said.

U.S. Steel said Commerce argued that its regulatory changes since 1980 establish an intent to no longer correct for indirect reimbursement. However, this is not the case, U.S. Steel said. "Not only does Commerce contradict itself later by conceding that Commerce’s regulation does not apply 'only to "direct" reimbursement' ... but Commerce’s own definition of reimbursement provided nearly in parallel with the amendment directly undermines these post hoc characterizations. ... In any event, Commerce is wrong to jettison the language of its original regulations and the definition proffered by [a prior antidumping case]."

"Commerce is incorrect insofar as it accuses Plaintiffs of broadening the meaning of indirect reimbursement to apply to any reduction in transfer price for any reason," the brief said. "To the contrary, Plaintiffs’ argument is narrowly tailored to situations, such as this one, where a deduction to the importer’s invoice price is directly linked to the amount of antidumping duties to be assessed -- no more, no less." This would lead the court to find that Commerce should have conducted an indirect reimbursement analysis, the company argued.