Commerce Decision Memoranda Aren't 'Factual Information,' Steel Petitioner Argues

The Commerce Department wrongly called its own decision memoranda in other, similar proceedings “new factual information” that could be, and had been, “untimely raised,” a petitioner said in a July 22 brief -- six months after that petitioner relied on them in its own administrative filings (ArcelorMittal Tubular Products v. U.S., CIT # 24-00039).

Steel petitioners led by U.S. manufacturer ArcelorMittal Tubular Products argued in their 86-page brief that the department’s classification of its own memoranda as “factual information” went against the actual definition of the term as described by Commerce’s own regulations.

Those regulations identify five categories of “factual information,” they said: “evidence, including statements of fact, documents, and data” submitted to respond to questionnaires; evidence to support allegations; publicly available information meant to “value factors under § 351.408(c) or to measure the adequacy of remuneration under § 351.511(a)(2)”; evidence placed on the record by the department; and evidence “other than the factual information” described previously, “in addition to” evidence put forward to counter another party’s evidence.

But, when the department rejected one of the petitioners’ briefs because it contained “untimely factual information,” it never identified which of the five categories the memoranda the petitioners had cited fell under, they said. And in announcing the categories in 2013, the department “clearly contemplate[d] that factual information for the record of a review is evidence directly related to the respondent in the review,” not inclusive of “fact patterns in other cases.”

They also pointed out that Commerce’s preliminary and decision memoranda “are routinely adopted by reference in the accompanying Federal Register notices.” Plus, the department acted unreasonably by not raising this issue for six months after the petitioners cited the memoranda, then rejecting their pre-submission comments and their administrative case brief for the alleged error, they said.

The petitioners also argued that Commerce had illegally failed to address the overarching issue they raised when citing the memoranda: the fact that the department had acted without substantial evidence when it failed to collapse a respondent with an affiliate in a review of an antidumping duty order on Italian cold-drawn mechanical tubing of carbon and alloy steel. The five decision memoranda they cited dealt with other reviews in which Commerce had collapsed a respondent and affiliate, they said.

In the Italian steel AD review, they alleged, the department should have collapsed respondent Dalmine with its Romanian affiliate, Silcotub.

Although this was an “essential argument” to the proceeding, Commerce didn’t mention it at all in its final results, the petitioners said. And when the department did address it in its two letters rejecting the petitioners’ two filings, they said, its rationale was “vague” and had “no basis in the regulations. The Court of International Trade has held that “failure to address an essential argument in making a final decision is sufficient grounds for remand,” they said.

“Without knowing the basis for the Department's decision, the Court is unable to evaluate the agency's decision-making (or lack thereof) and remand is necessary,” they said.

In their brief, the petitioners also made arguments as to why Commerce was wrong to have refused to collapse Dalmine and Silcotub for the review.

The collapse analysis considers three criteria but ultimately considers the totality of the circumstances to reach a conclusion, they said. In this case, Dalmine and Silcotub both have production facilities that wouldn’t require substantial retooling to manufacture the subject merchandise, the petitioner said. The two share ownership and see substantial managerial overlap, and, although no evidence indicates that they are currently using their affiliation to manipulate their goods’ price or production, it is still possible they could in the future, the petitioners said.

“Had the Department correctly conducted the analyses for the three factors for collapsing under 19 C.F.R. § 351.401(f)(2), and considered the agency precedent Petitioners cited, it should have concluded that the requirements for collapsing Dalmine and Silcotub are satisfied,” they said.

They made similar arguments in their complaint, filed in March (see 2403080042).