Commerce Can't Knowingly Use False Information, Exporter Argues at Trade Court

The Commerce Department can't use information it knows to be incorrect, exporter Nagase said in its Sept. 8 remand comments to the Court of International Trade. In its Aug. 9 remand redetermination (see 2308100028) covering the 2018-20 administrative review of the antidumping duty order on glycine from Japan, Commerce knew that the constructed export price value sales were incorrect but used those values anyway despite correct information on the record, Nagase said. The court can't sustain a determination created using knowingly false information, Nagase said, arguing for another remand (Nagase & Co. v. U.S., CIT # 21-00574).

While Nagase said that it supports Commerce's recalculation of its general and administrative expense ratio, it opposes the recalculation of Nagase's assessment rate because the calculation was based on incorrect information. The exporter argued that the recalculation of its assessment rate during the remand "differed fundamentally" from that made during the underlying review, Nagase argued. During the remand, "Commerce was well aware that the entered values for the constructed export price sales ... were incorrect" but still used that information to recalculate the assessment rate, Nagasesaid.

Commerce claimed that standard practice and finality dictated its use of the data, but Nagase argued that the department clearly had the correct data because it used the correct values for calculating Nagase's export price sales. Regardless of whether the department was aware of the error during the underlying review, it was surely aware during the remand proceeding "and could not pretend otherwise," Nagase said.

During the remand, Commerce rejected Nagase's argument, saying that the correct values were in dispute. Nagase said such a reply does not justify Commerce's failure to address the dispute. "Parties dispute issues before agencies all the time, and an agency is required to resolve the disputes in a manner that is supported by substantial evidence," Nagase argued.

Finally, the exporter argued that the correct values were available to Commerce in Nagase's sales database and a recalculation using that data would have been simple.