Exporter Supports US in Remand Results, Says Commerce Can’t Make Cost-Based PMS Adjustments
A German forged steel fluid end block exporter Jan. 22 for the most part supported the U.S. position in a remand redetermination that the Commerce Department couldn't make PMS adjustments for costs of production in antidumping and countervailing duty investigations. It argued, however, that the department failed to address illegitimate PMS adjustments for two inputs for comparisons based on constructed value (Ellwood City Forge Co. v. U.S., CIT Consol. # 21-00077).
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The exporter, plaintiff and defendant-intervenor BGH Edelstahl Seigen, first said in its brief commenting on the results that AD/CVD petitioner Ellwood City Forge had failed to raise certain key arguments in prior proceedings.
The petitioner had pushed Commerce to make PMS-related cost adjustments in its antidumping duty calculation for BGH, a mandatory respondent in Commerce’s administrative review. Because the U.S. Court of Appeals for the Federal Circuit has struck down such cost adjustments before, Elwood proposed in remand comments several “alternative pathways,” based in statute, by which it claimed Commerce could still make the changes (see 2401090060). Commerce rejected these when it released its second, and most recent, remand redetermination (see 2311220001).
“Despite the fact that the statutory provisions for each of these pathways existed at the time of the original investigation, the Coalition chose to resort only to Pathway #1, and it raised no arguments concerning Pathways #2 or #3 during the original investigation,” BGH said.
BGH also agreed that there was no statutory basis for making cost-based PMS adjustments, citing Saha Thai v. U.S., a case recently decided by the Federal Circuit.
It argued, however, that Commerce failed in its redetermination to address arguments BGH made regarding the department’s PMS adjustments related to electricity and ferrochrome, two of the exporter’s imports, to make constructed value comparisons. It claimed that particular market situations didn't exist with respect to either electricity or ferrochrome production in Germany. Even if such distortions did exist, they didn't require constructed values for proper comparison, it said.