Commerce Unnecessarily Favored Steel Nails Importer on Remand, Domestic Producer Says
The Commerce Department unnecessarily backed off of its use of adverse facts and erred in a dumping margin calculation on imported steel nails from Oman in an antidumping duty review, domestic producer and defendant-intervenor Mid Continent Steel & Wire said in remand comments filed Aug. 23. Mid Continent is contesting the July 17 remand results, in which Commerce reversed its imposition of total adverse facts available on Oman Fasteners and completely removed the 154.33% AD rate for the company (see 2307170036) (Oman Fasteners v. U.S., CIT # 22-00348).
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Mid Continent asked the court to remand the issue to Commerce but also said that it filed its comments in order to preserve all issues for a potential appeal to the U.S. Court of Appeals for the Federal Circuit.
Commerce gave Oman Fasteners "a second bite at the apple" when it allowed the company to refile a previously rejected supplemental response that corrected flaws in Oman Fasteners' data reporting, Mid Continent said. That allowance was contrary to Commerce's own regulations, practice, and decisions of both the Federal Circuit and the Court of International Trade, Mid Continent argued.
Commerce had the proper authority to enforce its own deadlines and reject Oman Fasteners' late submission, Mid Continent argued. Further, the court couldn't order Commerce to reconsider the late filing, the brief said, citing a Federal Circuit ruling that courts cannot set aside the application of proper administrative procedure when they believe that rejected evidence might have returned a more accurate result. Oman Fasteners failed to file its response to a "critical supplemental questionnaire" despite receiving multiple extensions from Commerce. The department then correctly applied adverse inferences to Oman only to cave on remand, Mid Continent said.
The producer also argued that Commerce had improperly calculated the dumping margin by using quarterly rather than annual costs and by failing to subtract Section 232 duties from U.S. sales. On the quarterly cost calculation issue, Mid Continent said that Commerce unnecessarily went with a calculation more favorable to Oman Fasteners despite the importer's failure to show why that measure was more appropriate. Mid Continent also argued that by failing to deduct Section 232 duties when calculating the dumping margin, Commerce again came up with a margin more favorable to Oman Fasteners than it should have been.