Domestic Producer Could Have Supplied Importer Adequately via ‘Spot Sales,’ US Says

Defending the Commerce Department’s continued denial on remand of a canned foods importer’s Section 232 requests (see 2404020047), the U.S. said that the importer can submit new requests if domestic producers really can’t meet that importer’s needs (Seneca Foods Corp. v. U.S., CIT # 22-00243).

Based on the record, the department believed domestic producer U.S. Steel’s claim that it could supply importer Seneca Foods, DOJ said. It said email correspondence between the companies prior to Seneca’s filing of its exclusion requests indicated only that U.S. Steel couldn’t provide the needed steel in time through contract sales. However, U.S. Steel certified during the administrative proceeding that it could have done so at later dates through spot sales, it said.

“Accordingly, Commerce found no conflict or contradiction,” the U.S. said.

It also said that the reason the department didn’t consider emails exchanged more than 90 days before Seneca filed its requests due to the “ever-changing nature of steel and aluminum production schedules and industry,” as Commerce claimed in its results.

Upon remand (see 2310180052), Commerce addressed those early emails again, saying that they “had limited probative value”; so Seneca was wrong that the department “disregarded ‘overwhelming evidence’” regarding U.S. Steel’s refusal to supply it, DOJ said.

It called Seneca’s claims about U.S. Steel’s availability “hearsay” and said its complaint “amounts to only a disagreement about the weighing of the evidence, which is insufficient to reverse Commerce’s decisions.”

Importers’ exclusion requests are only granted when a product can’t be produced in the U.S. “in [a] sufficient and reasonably available amount,” as U.S. Steel’s tin sheet was, the government said.

“The test for the agency, and this Court, is not whether the parties already have or will enter into a binding agreement because there are myriad business and economic reasons driving both parties’ decisions, such as who to contract with, under what terms, and for how much,” it said.