Use of AFA Invalid Given Lack of Chance to Comment on AD Calculation, Greek Exporter Tells CAFC

The Commerce Department's use of adverse facts available against Greek exporter Corinth Pipeworks Pipe Industry was "flawed" since the agency never gave the company a chance to comment on its calculation and analysis, Corinth argued in its Sept. 29 opening brief at the U.S. Court of Appeals for the Federal Circuit. The exporter added that Commerce also failed to support its use of a 41.04% AFA rate since the company didn't withhold information, impede the antidumping duty review on large diameter welded pipe from Greece or fail to submit information in the form and manner requested (Corinth Pipeworks Pipe Industry v. United States, Fed. Cir. # 23-2094).

Corinth said that Section 1677m(g) of the AD statute requires interested parties to get a chance to comment on all of the information serving as the basis for Commerce's decisions. The Court of International Trade ruled the exporter misunderstood the law since Commerce doesn't obtain information when calculating margins -- it generates information (see 2305010054).

At the appellate court, Corinth argued the information "was not the calculation of a dumping margin," since Comerce didn't calculate a dumping margin but instead assigned the exporter an AD rate based on AFA. The agency's analysis "constituted a new reconciliation table of Commerce's devising" that put forward a new methodology for reconciling the figures that hadn't previously been disclosed to the parties. "This is precisely the sort of information that must be disclosed before Commerce relies upon it as the basis for determining that the costs on the record did not reconcile," the brief said.

Corinth argued that it's clear that Congress meant for the statute to allow parties to have a chance to comment on information that serves as the grounds for Commerce's decisions. The statute says the administering authority shall stop collecting information and give the parties a final chance to comment on information on which the parties have not previously had a chance to comment. While "information" is not defined, the legislative history shows the law is meant to cover information "Commerce itself places on the record," the brief said.

"Here Commerce did not afford [Corinth] with an opportunity to comment on Commerce’s reconciliation table that included its methodological change to reconstruct the reconciliation of [Corinth's] submitted costs in a manner that double-deducted semi-finished pipe costs," the brief said.

Commerce didn't give Corinth a chance to comment on the cost reconciliation table that was the basis for Commerce's change in methodology. The trade court's ruling "conflicts with the Congressional purpose of ensuring that interested parties have an opportunity to comment on all information serving as the basis for Commerce's determinations," the brief said.

Corinth added that it didn't withhold information or impede the investigation, precluding the use of AFA. The exporter said "no reasonable reading" could find that Corinth didn't tell Commerce it was unable to submit its cost information in the form and manner requested in the supplemental questionnaires. No notification was needed since its cost reconciliation followed Commerce's methodology. The exporter established a clear record by explaining how its reconciliation worksheets accounted for accumulated costs recorded at intermediate production stages, the brief said.