AD Respondent's Mistake Doesn't End Commerce's Remedial Fairness Duty, Importer Says

Antidumping duty respondent Nagase & Co's oversight in submitting information to the Commerce Department leading to a "patently erroneous assessment rate," does not justify Commerce shirking its responsibility to provide remedial fairness, Nagase argued in an Aug. 29 reply brief at the Court of International Trade. While Nagase admits to its error, the respondent argued that Commerce still has an obligation to correct the mistake now that the agency knows of its existence (Nagase & Co. v. United States, CIT #21-00574).

The case contests the final results in the first administrative review of the antidumping duty order on glycine from Japan. Nagase, along with its affiliated producer Yuki Gosei Kogyo Co., served as one mandatory respondent in the review. Nagase challenged Commerce's final determination in the review that the exporter dumped glycine into the U.S. market at a rate of 27.71%.

During the review, Nagase said that it inadvertently duplicated the per-unit amounts of regular U.S. duties paid on its imports corresponding with constructed export price sales, reporting those amounts for the imports. Commerce then used Nagase's reported entered values to find the denominator of its assessment rate calculation. Nagase contested this move by the agency. In its defense, the U.S. and the AD petitioner argued that the error originated with Nagase; the error was not obvious from Commerce's materials; Nagase raised the error too late in the proceeding; the agency's policy favors finality; and even if the error may be corrected, Commerce doesn't need to do so.

In its reply, Nagase said that just because the respondent made a mistake, this does not justify ditching the "remedial and fairness principles" in AD law. "However, the fact that the error stems from Nagase’s inadvertence does not justify a refusal to correct it -- now that its existence is clear and CBP has yet to liquidate Nagase’s entries," the brief said. "In other words, Nagase’s responsibility for the error does not justify rejecting fundamental principles of fairness and the remedial nature of the antidumping law. ... Nor does it justify converting the law into a punitive instrument to inflict a huge financial penalty on Nagase for an oversight."

The petitioner told the trade court that Commerce needn't have fixed the mistake since it was a single number in a 100-plus-page document, and that the respondent raised the issue after Commerce's deadline for identifying ministerial errors. Nagase's response faults Commerce for not issuing draft liquidation instructions, for if the agency did so, the error would have been promptly caught.