Trade Court Says Shifting Narratives No Basis for AFA, Especially Given Commerce Dropped It

The Court of International Trade in a May 13 opinion sustained the Commerce Department's drop of facts available after the court made the agency give antidumping duty respondent Hyundai Steel Co. the chance to explain a discrepancy between the reporting of two data fields. The petitioner, U.S. Steel Corp., argued that the results should not be sustained given Hyundai's shifting narratives on the discrepancy. Judge Richard Eaton was not persuaded, however, arguing that since Hyundai gave Commerce the information it requested, the respondent replied 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).

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 facts available (see 2109280041).

U.S. Steel then contested Commerce's decision to simply accept this explanation from Hyundai in its comments on the remand results (see 2111020039). The petitioner said that the remand did not stop Commerce from finding that Hyundai did not cooperate to the best of its ability or being "indifferent to Hyundai's chronic failures" to do just that, especially when the key issue that brought Commerce to apply AFA is still unresolved. Commerce should also be concerned with the fact that Hyundai is "miscoding its sales," U.S. Steel argued.

Eaton found the petitioner's arguments unconvincing. "First, Commerce -- the administrative agency charged with enforcing the antidumping law -- concluded that Hyundai had provided all of the information the Department had requested, and that there were no gaps in the factual record to fill with 'facts otherwise available,'" the brief said. "Moreover, Commerce disagreed with U.S. Steel’s position that Hyundai continually shifted its story. ... U.S. Steel has made no argument that convinces the court that Commerce erred on remand."

(Hyundai Steel Co. v. United States, Slip Op. 22-46, CIT Consol. #19-00099, dated 05/13/22, Judge Richard Eaton. Attorneys: J. David Park of Arnold & Porter for plaintiff Hyundai Steel Co.; Kelly Krystyniak for defendant U.S. government; Thomas Beline of Cassidy Levy for defendant-intervenor U.S. Steel Corp.)