Trade Court Upholds Total AFA Rate in AD Review, Given Failure to Reconcile COP, CV Data

The Commerce Department properly hit Greek exporter Corinth Pipeworks Pipe Industry with a 41.04% total adverse facts available antidumping duty rate, given that its reported costs were not reconciled to its normal books and records, the Court of International Trade ruled. Judge Leo Gordon said the law does not require Commerce to respond to Corinth's arguments on its use of total AFA, which the agency employed in the first instance amid the final results of the first administrative review of the antidumping duty order on large diameter welded pipe from Greece.

Corinth claimed that the statute on AFA at Section 1677m(g) required Commerce to give the company a chance to comment on its use of total AFA. This law says that before the final results are issued, the agency shall stop collecting information and give the parties a final chance to comment on the information obtained by Commerce on which the parties have not previously had a chance to comment. Gordon said that the exporter misunderstood the law since Commerce does not obtain information when calculating margins -- it generates information.

"In sum, Plaintiffs attempt to broaden the reach of § 1677m(g) to obligations that the statute was not intended to create," the opinion said. "Relatedly, Plaintiffs have failed to point to any statutory requirement outside of § 1677m(g) requiring Commerce to issue a 'post-preliminary' decision other than the final results."

Timothy Brightbill, counsel for petitioner American Line Pipe Producers Association, said that "The Court properly held that the cost reconciliation is a critically important part of the antidumping calculation, so when CPW failed to provide this fundamental information as requested, it impeded the Commerce proceeding. Both the underlying Commerce determination and the Court’s ruling are well reasoned. This decision greatly helps ALPPA’s U.S. producers to compete against dumped imports of large diameter welded pipe from Greece."

Gordon further ruled that Commerce properly hit Corinth with total AFA. In the review, Commerce asked the exporter to report its per-unit cost of production and constructed value figures based on the company's actual costs, adding that the numbers must reconcile to the actual costs reported in the firm's normal accounting system. After finding deficiencies, Commerce issued a total of two supplemental questionnaires, both of Corinth's responses to which failed to resolve the reconciliation issues.

Corinth argued at the trade court that it submitted instructions to Commerce which, if followed, would have led to a full reconciliation of the company's costs. Gordon said that it's the company's burden to create an adequate record and not Commerce's, meaning the company's submissions were simply inadequate. The judge added that Corinth "has failed to explain why it could not cooperate by generating cost reports for the ranges of months that Commerce requested. It is telling that, as proof of Corinth’s cooperation, Plaintiffs point to the company’s reliance on the approach it followed at the investigation stage, not on Commerce’s instructions in the current review."

The court lastly addressed Corinth's claims that the 41.04% rate taken from the petition is punitive. "Relying only on broad assertions that the selected rate was 'drastically overstated, punitive and unjustified,' as well as on their prior arguments opposing Commerce’s application of total AFA, Plaintiffs fail to persuasively explain how Commerce’s selection of the 41.04 percent rate was unsupported by the record," the opinion said.

(Corinth Pipeworks Pipe Industry v. United States, Slip Op. 23-65, CIT # 22-00063, dated 04/28/23; Judge: Leo Gordon; Attorneys: Kristin Mowry of Mowry & Grimson for plaintiff Corinth Pipeworks Pipe Industry S.A.; Eric Singley for defendant U.S. government; Timothy Brightbill of Wiley Rein for defendant-interevenor American Line Pipe Producers Association Trade Committee)