Commerce Sticks With Facts Available Using Likely Selling Prices of Non-Prime Goods in AD Case

The Commerce Department stuck with its application of facts available in remand results filed at the Court of International Trade on Aug. 25 despite a U.S. Court of Appeals for the Federal Circuit decision finding that such reliance on the current data was inappropriate. Seeing as no other data was available than respondent Dillinger France's books and records, Commerce said it had to rely on them despite their deficiencies (Dillinger France S.A. v. United States, CIT #17-00159).

The case stems from the less-than-fair-value investigation of certain carbon and alloy steel cut-to-length plate from France, in which Dillinger was a respondent. In the investigation, Dillinger submitted information on its allocation of costs between its non-prime and prime products. Dillinger's books, while in accordance with Generally Accepted Accounting Principles, assigned costs to the non-prime products based on their "likely selling prices," rather than reporting the cost of the goods. This was a no-go for the Federal Circuit, which remanded the case to Commerce so the agency could get better data.

Commerce then attempted to do so, issuing a supplemental questionnaire to Dillinger requesting information about the product-specific costs of the non-prime goods. According to Commerce, Dillinger "failed to give either the physical characteristics of non-prime products produced or its actual product-specific costs of production of non-prime products, despite arguing that the actual costs of making non-prime products should have been used."

Stuck, Commerce then continued to apply facts available and saddled Dillinger with a 6.15% dumping margin. "Therefore, upon reconsideration of the record evidence and to comply with the Court’s remand order, Commerce must rely on the total cost assigned to the prime and non-prime products as recorded in Dillinger’s normal books and records," the remand results said