Commerce Relied on Struck-Down Analysis in Recent Review, Exporter Says

The Commerce Department repeatedly relied on an analysis in several administrative reviews that the courts had already struck down, an exporter of Indian carbon steel welded pipe said in a Jan.19 brief responding to comments made by DOJ and domestic petitioners regarding its own motion for summary judgment (Garg Tube Export v. U.S., CIT # 21-00169).

That analysis involved applying adverse facts available to the exporter after its unaffiliated input provider failed to cooperate with Commerce, the exporter said.

Garg Tube, the exporter, sought summary judgment after Commerce used an “identical rationale” in a voluntary remand of a contested 2018-2019 administrative review’s results to again apply AFA to aspects of the exporter’s antidumping duty (see 2308020056).

Garg said the contested administrative review’s final results also were based on the same flawed analysis that the Court of International Trade rejected in an earlier case Garg brought against a 2017-2018 administrative review. Commerce and the domestic petitioners failed to adequately distinguish that review -- and its problems -- from the present one, the exporter said, especially because Commerce used and referenced the 2017-2018 review many times in the more recent one.

In particular, Commerce should not have used AFA to calculate input costs Garg incurred from its unaffiliated vendor because another (redacted) entity did not reply to the departments’ questionnaire, the exporter said.

The exporter disagreed with the U.S.’s argument that Garg should have found a different input provider after issues arose in the 2017-2018 review, saying that it had no way of knowing about those issues until near the end of the 2018-2019 review.

“Garg had no reason to change its sourcing patterns until Commerce requested that Garg’s unaffiliated vendors submit cost data and its vendors refused to comply. As the above-referenced chronology of events reveals, these events did not occur until near the end of AR18/19,” it said.

Furthermore, applying AFA to Garg would have no impact on Garg’s uncooperative supplier and went against judicial precedent, the exporter said.