US Steel Blasts Commerce for Accepting Hyundai's 'Shifting Narratives' in AD Review

Antidumping review respondent Hyundai Steel Co. "shifted its narrative" when answering a supplemental questionnaire from the Commerce Department on remand from the Court of International Trade, U.S. Steel argued in comments on the remand results. Arguing against Commerce's decision to drop its adverse facts available finding over a discrepancy between two product codes, U.S. Steel argued that Commerce mistook the court's decision as "somehow requiring Commerce to blind itself to Hyundai's troubling history of failing to cooperate to the best of its ability."

The case arose from the first administrative review on an antidumping duty order on cold-rolled steel flat products from South Korea in which Hyundai was a mandatory respondent. During the investigation, Commerce asked for product codes and specification data -- the type or grade of steel -- despite not using either number to construct matching control numbers, which are then used to calculate the dumping margin. Finding Hyundai's submitted data insufficient, Commerce issued follow-up questionnaires, but did not specifically alert Hyundai to what information it found lacking. It was this lack of notice that prompted the court to remand the case in April (see 2105070029).

Judge Richard Eaton directed Commerce to describe the nature of each deficiency in Hyundai's submissions and then give the company a chance to fix it. Hyundai said that one field under dispute was reported for merchandise as sold while the other was for merchandise as imported. Accepting this explanation, Commerce dropped its reliance on AFA (see 2109280041).

U.S. Steel now contests Commerce's decision to simply accept this explanation from Hyundai. "To be sure, the Court faulted Commerce for citing its application of facts available to Hyundai in the underlying investigation as a justification for applying facts available in the instant administrative review," the AD petitioner said. "But importantly, the Court did not preclude Commerce from considering Hyundai’s failure to put forth maximum effort, as reflected in its history of providing incomplete responses and a shifting narrative to explain away inconsistencies in its product reporting."

U.S. Steel is arguing that while the remand instructions did not allow Commerce to find that Hyundai failed to cooperate, it didn't stop the agency from deriving that Hyundai refused to apply "maximum effort" in the administrative review, including on its "incomplete responses and shifting narratives." In fact, Commerce "need not -- and should not -- be indifferent to Hyundai’s chronic failures to cooperate to the best of its ability," the petitioner said, especially when the key issue that brought Commerce to apply AFA is still unresolved.

Even if Commerce ignores the differences between the two data fields, it still should be concerned with the fact that Hyundai is "miscoding its sales," U.S. Steel argued. For instance, the specification data does not properly align with the control number reporting, the comments specified. "Commerce had an obligation to consider and weigh all record evidence -- not to merely accept Hyundai’s latest narrative at face value, without considering Hyundai’s track record of shifting narratives which exhibits a failure to cooperate to the best of its ability," the brief said.

Hyundai also submitted comments on the remand results, but, unsurprisingly, its words were much less harsh on Commerce's decision. The respondent merely called for the court to sustain the remand results, arguing that the agency simply rectified the "procedural shortcomings the Court identified in Commerce's initial determination."