Commerce Illegally Altered Costs in Merchandise Adjustment Program, Indian Paper Exporter Says

Commerce illegally departed from its standard methodology when it decided to use third-country control number (CONNUM) costs in the final results of an antidumping duty review on lined paper products from India and then attempted to obscure its standard practice as a defense in court, Navneet said in a March 17 reply at the Court of International Trade. The court should remand the case to Commerce with instructions to recalculate Navneet’s 20.22% dumping margin, the brief said (Navneet Education v. U.S., CIT # 22-00132).

Commerce deviated from its practice of not using third-country CONNUM costs when it reverse-engineered physical characteristics for Navneet products sold only in third-country markets, the exporter said. "If reporting product physical characteristics for products sold only in third-country markets was necessary for the margin calculation program" there would be no question as to whether product physical characteristics variables are included in the cost database. Instead, "there would only be a YES or a question of whether Commerce should apply facts available (or adverse facts available)," said Navneet.

Navneet argued that Commerce's alterations to the program "resulted in the inclusion of extraneous and distortive third country costs in the difference-in-merchandise adjustment." Navneet says it is "being punished" with a 20.22% dumping margin simply "because it could not guess that Commerce would change its methodology." The unanticipated change resulted in the exporter going from a "good corporate citizen and a 0.00% margin to appearing to be a furtive foreign producer with an aberrant 20.22% margin."

The agency claimed Navneet misread Commerce's decision not to use third-party CONNUMs in a review on ripe olives from Spain when it argued that the ripe olives case affirmed agency practice (see 2302030033). "Commerce claims that it acted consistently with its practice but can only make this argument by blurring what practice it is talking about," Navneet said.