Commerce Got Non-Use of AFA and Section 232 Calculations Correct on Remand, DOJ, Exporter Argue at CIT

The Commerce Department correctly reversed its use of adverse facts on remand in an antidumping duty review on imported steel nails from Oman, both DOJ and respondent Oman Fasteners said in two sets of remand comments, both filed Sept. 22 at the Court of International Trade (Oman Fasteners v. U.S., CIT # 22-00348).

The results of the sixth AD review published in December found that respondent Oman Fasteners hadn't submitted all of its response to Commerce’s supplemental questionnaire by the deadline. Commerce rejected the response and found that necessary information was missing, justifying the agency's use of facts available. After the court's July remand order (see 2307170036), Commerce reopened the record and allowed Oman Fasteners to re-file its response, ultimately adjusting its margin calculation to zero.

DOJ's remand comments argued that Commerce had correctly decided to calculate Oman Fasteners' margin without the use of AFA. After accepting previously rejected information from Oman Fasteners, Commerce rightly determined that there was no longer any necessary information missing from the record and that there was no longer a legal basis to use facts available, DOJ said.

On remand, Commerce also reevaluated its use of an annual weighted-average cost and instead opted for a quarterly method, citing "significant variation" in costs during the period of review as well as a correlation between the changes in cost of manufacturing and average U.S. prices. Such a change was within the department's discretion and consistent with its practice, DOJ said.

In its own comments, Oman Fasteners focused on rebutting Mid Continent's arguments surrounding the calculation of assessed Section 232 duties.

The case highlights an "unusual situation" in which Oman Fasteners didn't pay import duties at the time of entry, when the export price was paid, but later was found to be liable following a decision issued years after the period of review. Following a separate court case that found the duties to be unlawful, the CIT allowed Oman Fasteners to post bonds covering Section 232 duties, instead of depositing duties with CBP at the time of entry. In the remand results, Commerce determined to deduct the Section 232 duties that Oman Fasteners actually paid, the exporter said.

Petitioner Mid Continent argued that by failing to deduct Section 232 duties from the U.S. price when calculating the dumping margin, Commerce created a margin more favorable to Oman Fasteners than it should have been (see 2308240067), but Commerce cited its statutory requirement to deduct only “'the amount, if any' attributable to U.S. import duties in U.S. prices.” Mid Continent’s position that Commerce also should make deductions for Section 232 duties that were not paid, "has no basis in the antidumping statute," Oman Fasteners said.

Mid Continent’s argument misses the point, the exporter said. Commerce’s decision on how to treat the duties wasn't based on the status of legal proceedings, but on the question of whether Oman Fasteners paid Section 232 duty deposits on the relevant entry, Oman Fasteners said.