AD Respondent Says Commerce Failed to Allow Comments on Methodology Change
The Commerce Department failed to provide antidumping duty respondent CPW America Co. with a chance to comment on the agency's change in methodology, which resulted in a change from a zero percent dumping rate to one derived from total adverse facts available, CPW and Corinth Pipeworks Pipe Industry argued in a March 3 reply brief at the Court of International Trade. CPW said that Commerce illegally used AFA based on an "erroneous conclusion" that the respondent's reported costs were not reconciled to its normal books and records (Corinth Pipeworks Pipe Industry v. United States, CIT # 22-00063).
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CPW claimed that, in the 2019-20 administrative review of the antidumping duty order on large diameter welded pipe from Greece, Commerce relied on the respondent's reported costs in the preliminary results, but then in the final results switched to using total AFA, without a change in the data (see 2203310039). The agency did so since CPW supposedly failed to provide cost reconciliation information in the manner requested by Commerce. Responding to arguments from the U.S., plaintiffs Corinth and CPW said that the agency failed to provide it an opportunity to comment on the switch.
CPW had previously cited a host of past CIT rulings to back its argument, including Nan Ya Plastics. v. U.S., in which the trade court sent back an AD ruling to Commerce to address methodology changes made between the preliminary and final results. CPW also cited CC Metals v. U.S., in which Commerce altered its normal value adjustment based on information submitted after the preliminary results and the court remanded to consider arguments from the respondent. The U.S. claimed that these cases were distinguishable from the present action since Nan Ya involved the calculation of AFA as opposed to the application of AFA and CC Metals dealt with claims over past practice violations for which the court found merit.
"Notwithstanding these quibbles, both cases address the precise issue presented here: whether Commerce must provide a party with an opportunity to comment before changing its methodology between the preliminary and final results," CPW said. "The United States and Petitioners have not responded on the merits to CPW's argument that its costs fully reconcile but only reiterate the erroneous claims in Commerce's Final Results Calculation Memorandum. ... The United States' inability to even respond to CPW's principal contention that Commerce's calculations demonstrate that CPW's costs do reconcile necessitates a remand so that Commerce can consider CPW's arguments."
In response to DOJ's claim that Commerce is owed deference given the complexity of AD calculations, CPW said, "Commerce may be owed a degree of deference, but not when its conclusions and reasoning for making a change in methodology have not been made available for the parties to comment on prior to being adopted."