CIT Judge Sends Back Commerce Remand Results on Steel Nails From Taiwan

The Court of International Trade on April 3 again sent back Commerce’s third remand redetermination in an antidumping duty investigation on steel nails from Taiwan.

In the previous remand, the U.S. Court of Appeals for the Federal Circuit found that Commerce inadequately explained its choice of the simple average over the weighted average in constructing the denominator for the Cohen d test in the agency's targeted dumping analysis. Commerce relied upon literature that supported only weighted averaging and, although the appeals court noted that Commerce is not ordinarily bound to follow published literature, it found that because it justified its methodology based on that literature, Commerce needed to justify its non-use.

On its most recent remand, Commerce abandoned its prior argument justifying the use of a simple average, instead arguing the literature supported using a simple average when sampling is not used (see 2211140064).

CIT Judge Claire Kelly said Commerce did not further explain how the pricing behaviors of the test and comparison groups represented “separate and equally rational” or “equally genuine” behaviors. Nor did Commerce provide additional support for its assertion of “predictability" or offer further explanation for its assertions of "predictability, abstract effect, and rationality," the judge said.

Commerce appears to have misconstrued the Court of Appeals' mandate that the non-academic arguments "were unsupported -- not unsupportable," Kelly said. Mid Continent's arguments that the simple average was justified can't support Commerce's determinations "even if such explanations could support the reasonableness of Commerce's choice" because they are not Commerce's explanations, the judge said.

(Mid Continent Steel & Wire v. U.S., CIT # 15-00213, Slip Op. 23-45, dated 04/03/23; Judge: Claire Kelly; Attorneys: Adam Gordon of The Bristol Group for Plaintiff Mid Continent Steel & Wire; Mikki Cottet for defendant U.S. government; Ned Marshak of Grunfeld Desiderio for defendant-intervenors led by PT Enterprise, Inc.)