Commerce Properly Said Foreign Steel Maker Didn't Reimburse Importer for AD, Exporter Tells CAFC

The Commerce Department properly found that foreign manufacturer BlueScope Steel did not reimburse its affiliated importer, BlueScope Steel Americas, for the amount of antidumping duties BlueScope Americas paid on imports of hot-rolled steel flat products, defendant-appellees BlueScope and BlueScope Americas argued in a Jan. 25 reply brief at the U.S. Court of Appeals for the Federal Circuit. Petitioner U.S. Steel's claims to the contrary rest on a misinterpretation of the record and inappropriately claim BlueScope Americas was indirectly reimbursed via formula price provisions laid out in a supply agreement between BlueScope and BlueScope Americas, the brief said (U.S. Steel v. United States, Fed. Cir. # 22-2078).

The case concerns Commerce's final results in the administrative review of the antidumping duty order on hot-rolled steel flat products from Australia. During the review period, BlueScope made sales to BlueScope Americas, which then sold the merchandise to another affiliated entity, Steelscape. This company further manufactured the steel into nonsubject merchandise, selling the final goods to an unaffiliated U.S. customer.

According to the supply agreement governing these sales, BlueScope set the price charged to BlueScope Americas, called a formula price, by deducting the estimated antidumping duties and freight price from the price charged to Steelscape. To calculate BlueScope Americas' duty transfer price, BlueScope started with the price paid by Steelscape then deducted the AD to estimate the entry value. U.S. Steel told Commerce that by decreasing the invoice price by the amount of the antidumping duty, BlueScope reimbursed BlueScope Americas for the duties, meaning the agency was required by its regulation to lower the exporter's U.S. price by the amount of the estimated duties.

In the review, Commerce disagreed since there was no evidence of any reimbursement. U.S. Steel then took its case to the trade court, arguing that the exporter reimbursed the duties indirectly by decreasing its invoice price. However, CIT sided with Commerce, holding that the deduction of duties "on its own, is unremarkable when viewed in the context of the record." The court found that the reimbursement regulation does not apply (see 2206100066). U.S. Steel appealed to the Federal Circuit, claiming that the exporter failed to invoice the importer at the formula price, instead lowering the price by the amount of the duties (see 2210030049).

In its reply, BlueScope said that Commerce correctly found that the combination of the facts that BlueScope Americas paid the appropriate amount of AD and BlueScope Americas' "certification of non-reimbursement submitted" to CBP for the sales at issue "together constituted important evidence that there was not reimbursement." U.S. Steel "largely ignores this important evidence that was at the heart of the Commerce determination at issue here," the brief said. The petitioner blatantly asks the appellate court to ignore key evidence showing that BlueScope Americas paid the AD for all sales and that BlueScope Americas, as part of its normal business, submitted a non-reimbursement certificate for the entries on which Commerce based its determination, BlueScope said.

U.S. Steel suggests that there was certain evidence not properly considered by Commerce, referencing a calculation worksheet that BlueScope submitted to the agency in response to a question over the calculation of transfer prices. "This impression, however, is just wrong," the brief said. "Commerce explicitly addressed this specific BlueScope calculation worksheet in its final determination and concluded that BlueScope’s calculation of its transfer prices 'provides no evidence that BlueScope reimbursed BlueScope Americas for AD duties.'"

The petitioner further claimed that Commerce illegally applied its regulation on reimbursement of AD when it found that the exporter did not reimburse the importer for the antidumping duties. "This argument, however, fundamentally misstates what Commerce did," BlueScope said. "Commerce did not find that its regulation applies only to direct reimbursement of dumping duties and cannot encompass indirect reimbursement of duties through the lowering of an invoice price. On the contrary, Commerce found that since there was no lowering of the formula price to the importer (the importer paid a price that included the duties paid by BlueScope Americas), in this particular case there was no reimbursement of duties, direct or indirect. Commerce’s determination reflected a careful and correct review of the record before it; it was not based on the distorted view of the record presented by U.S. Steel."