Commerce Must Allow Comment If It Changes Calculation Method for AD Margins, Exporter Says

A Greek pipe exporter said Commerce made an error calculating its dumping rate, then violated antidumping duty laws when it didn't allow comment before hitting it with an adverse facts available rate, in a Jan. 16 reply brief to the U.S. Court of Appeals for the Federal Circuit (Corinth Pipeworks Pipe Industry v. U.S., Fed. Cir. # 23-2094).

The exporter, Corinth Pipeworks Pipe Industry, claims that Commerce failed to allow it time to comment on the department’s change in methodology in calculating an antidumping duty margin for the company’s product. It pointed out that statute requires that Commerce inform, and allow comment from, companies under investigation whenever the department places new factual information on the record.

Corinth said the failure meant it wasn’t able to correct Commerce when the department erred while manipulating data Corinth provided. Commerce’s mistakes included “twice deducting” an input’s production costs that the department claimed was “double counted,” Corinth said. This error “led directly to Commerce’s erroneous conclusion” that the Corinth’s costs didn't reconcile and resulted in its AFA rate, the exporter claimed.

Corinth cited other cases it said demonstrated its right to comment extended to situations involving Commerce changing its methodologies, not just learning of new information.

“The United States’ and Petitioner’s assertions that the right to comment under 19 U.S.C. § 1677m(g) applies only to new factual information submitted by other parties to Commerce rather than information Commerce itself places on the record, conflicts with the legislative history of the statute,” it said.

And the courts also have found "statistical manipulation of data on the record constitutes factual information," Corinth said. In one case, Stupp Corp. v. U.S., the court sustained Commerce’s rejection of a respondent’s case brief because the agency determined it contained “untimely ‘factual information’” that was “based on the respondent’s analysis of data that was already on the record,” Corinth said.

It said its AFA rate was unsupported by substantial evidence and not in accordance with law because its costs did reconcile.

The Court of International Trade ruled against Corinth in April, saying that Commerce had placed no new information on the record; it merely manipulated data already available to both parties, the court said (see 2305010054).

Commerce’s assignment of an AFA rating to Corinth also was justified because the exporter repeatedly failed to provide a proper account of its costs, CIT ruled. It said that information Corinth provided Commerce was inadequate -- Commerce described it as “voluminous and complex” but not “responsive to Commerce’s specific requests” -- and explained that the burden was on the exporter to ensure Commerce had received complete and comprehensible records.