Commerce Ignored CIT, CAFC When Using 'Likely Selling Price' of Non-Prime Goods, Exporter Argues

The Commerce Department ignored the Court of International Trade's and U.S. Court of Appeals for the Federal Circuit's instructions when it continued to rely on the "likely selling price" of non-prime goods to set rates in an antidumping duty case, exporter AG der Dillinger Huttenwerke said in a March 15 brief responding to Commerce's remand results. Dillinger says the agency continued to use facts otherwise available even after the trade court ruled it unsupported, arguing Commerce must instead use the company's actual data (AG der Dillinger Huttenwerke v. United States, CIT Consol. #17-00158).

The case concerns the antidumping duty investigation on carbon and alloy steel cut-to-length plate from Germany. Dillinger's case at CIT challenged Commerce's cost of production (COP) determination for Dillinger's prime and non-prime plates. The agency found that Dillinger uses internal "factory results reports" to value the non-prime products at their "likely selling prices," using this value as an offset to the production of prime goods. CIT remanded Commerce's reliance on the price offset, finding that Commerce must use a respondent's actual cost data as opposed to its likely selling price in line with Federal Circuit precedent (see 2108180046).

CIT then told the agency to recalculate the respondent's margins according to the methodology established in a different case. The court said the use of partial AFA in the two cases appeared undistinguishable, but, in its remand, Commerce said that the scope of Salzgitter's failure to cooperate is "substantially different" than the scope of the related case (see 2201200053).

In response, Dillinger argued that "despite the clear admonition from this Court and the Court of Appeals," Commerce stuck with its position and "simply ignores the decisions" of CIT and the Federal Circuit. "Commerce tries to justify its stubborn application of the sales price as COP for non-prime plate by claiming that there is necessary information missing from the administrative record requiring the application of facts available," the brief said. "The information that Commerce claims is missing is the [control number] CONNUM-specific costs for non-prime products. Commerce however fails to explain how the sales price of non-prime plate bears any relation to the CONNUM-specific costs of nonprime plate."