Slip Op. 19 - 87
UNITED STATES COURT OF INTERNATIONAL TRADE
AG DER DILLINGER HUTTENWERKE,
Plaintiff,
ILSENBURGER GROBBLECH GMBH, Before: Leo M. Gordon, Judge SALZGITTER MANNESMANN GROBBLECH GMBH, SALZGITTER Consol. Court No. 17-00158 FLACHSTAHL GMBH, SALZGITTER MANNESMANN INTERNATIONAL GMBH, and FRIEDR. LOHMANN GMBH,
Consolidated Plaintiffs, and
THYSSENKRUPP STEEL EUROPE AG,
Plaintiff-Intervenor,
v.
UNITED STATES,
Defendant,
NUCOR CORPORATION and SSAB ENTERPRISES LLC,
Defendant-Intervenors.
OPINION and ORDER
[Considering Commerce’s Final Determination on the application of partial adverse facts available.]
Dated: July 16, 2019
Marc E. Montalbine, Gregory S. Menegaz, and Alexandra H. Salzman, deKieffer & Horgan, PLLC, of Washington, DC for Plaintiff AG der Dillinger Hüttenwerke and Consolidated Plaintiff Friedr. Lohmann GmbH.
David E. Bond, Richard G. King, Ron Kendler, and Allison J. Kepkay, White and Case LLP, of Washington, DC, for Consolidated Plaintiffs Ilsenburger Grobblech GmbH, Consol. Court No. 17-00158 Page 2
Salzgitter Mannesmann Grobblech GmbH, Salzgitter Flachstahl GmbH, and Salzgitter Mannesmann International GmbH.
Robert L. LaFrankie, Crowell & Moring LLP, of Washington, DC, for Plaintiff- Intervenor thyssenkrupp Steel Europe AG.
Vito S. Solitro, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for Defendant United States. With him on the brief were Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, and Tara K. Hogan, Assistant Director. Of counsel was Natan P. L. Tubman, Attorney, U.S. Department of Commerce, Office of Chief Counsel for Trade Enforcement and Compliance, of Washington, DC.
Alan H. Price, Christopher B. Weld, and Stephanie M. Bell, Wiley Rein LLP, of Washington, DC, for Defendant-Intervenor Nucor Corporation.
Gordon, Judge: This action involves the final affirmative antidumping duty
investigation of certain carbon and alloy steel cut-to-length plate (“CTL plate”) from the
Federal Republic of Germany. See Certain Carbon and Alloy Steel Cut-to-Length Plate
from the Federal Republic of Germany, 82 Fed. Reg. 16,360 (Dep’t of Commerce Apr. 4,
2017) (“Final Determination”), and accompanying Issues and Decision Memorandum, A-
428-844 (Dep’t of Commerce Mar. 29, 2017), available at
http://enforcement.trade.gov/frn/summary/germany/2017-06628-1.pdf (last visited this
date) (“Decision Memorandum”).
Before the court are the motions for judgment on the agency record filed by Plaintiff
AG der Dillinger Hüttenwerke (“Dillinger”) and Consolidated Plaintiffs Ilsenburger
Grobblech GmbH, Salzgitter Mannesmann Grobblech GmbH, Salzgitter Flachstahl
GmbH, Salzgitter Mannesmann International GmbH (collectively, “Salzgitter”), and Friedr,
Lohmann GmbH (all, together with Dillinger, “Plaintiffs”). See Pl. Dillinger Mem. in Supp. Consol. Court No. 17-00158 Page 3
of Rule 56.2 Mot. for J. on the Agency R., ECF No. 40 1 (“Dillinger Br.”); Salzgitter Consol.
Pls.’ Rule 56.2 Mot. for J. on the Agency R., ECF No. 43 (“Salzgitter Br.”); Def.’s Mem.
Opp. Pls.’ Rule 56.2 Mots. for J. on the Admin. R., ECF No. 55 (“Def.’s Resp.”); Def.-
Intervenor Nucor Corporation Resp. Br., ECF No. 58; Reply Br. of Pl. Dillinger, ECF
No. 62 (“Dillinger Reply”); Reply in Supp. of Consol. Pls.’ Rule 56.2 Mot. for J. on the
Agency R., ECF No. 64 (“Salzgitter Reply”). Plaintiff-Intervenor thyssenkrupp Steel
Europe AG (“thyssenkrupp”) has also filed a brief in support of Plaintiff Salzgitter’s Rule
56.2 Motion. See Pl.-Intervenor’s Memorandum of Law in Support of Pl. Salzgitter’s Rule
56.2 Mot., ECF No. 41 (“thyssenkrupp Br.”). The court has jurisdiction pursuant to Section
516A(a)(2)(B)(i) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(i)
(2012), 2 and 28 U.S.C. § 1581(c) (2012).
This opinion addresses Plaintiffs’ claims regarding the application of partial
adverse facts available (“AFA”) by the U.S. Department of Commerce (“Commerce”) for
certain home market CTL plate sales made by their respective affiliates. The remaining
issues, which are raised only by Dillinger, will be addressed in a separate opinion.
I. Background
In its initial questionnaire, Commerce asked respondents Dillinger and Salzgitter
to provide, among other things, the identity of the manufacturer of each CTL plate sold
1 All citations to parties’ briefs and the agency record are to their confidential versions unless otherwise noted. 2 Further citations to the Tariff Act of 1930, as amended, are to the relevant provisions of
Title 19 of the U.S. Code, 2012 edition. Consol. Court No. 17-00158 Page 4
during the period of investigation (“POI”) (April 1, 2015, through March 31, 2016), along
with its respective price, in their respective United States’ and German sales databases.
See Salzgitter Questionnaire at B-25, C-31; Dillinger Questionnaire at B-25, C-31.
Commerce sent multiple supplemental questionnaires to Dillinger and Salzgitter
requesting additional information covering various subjects, including the identity of the
manufacturer(s) of certain home market CTL plate sales that they claimed could not be
provided without inordinate difficulty.
Dillinger and Salzgitter made sales during the POI in the home market to affiliated
parties, as defined in 19 U.S.C. § 1677(33). Commerce accordingly tested those sales to
determine whether they were made at arm’s-length prices. See 19 C.F.R. § 351.403(c).
Commerce preliminarily found that Dillinger’s reported sales to two affiliated
resellers did not pass the arm’s-length test. Id. Because of gaps in the reported
downstream sales of those affiliates, Commerce preliminarily treated all of their sales as
being Dillinger-produced CTL plate. Id. Commerce then requested additional information
from Dillinger for consideration of these sales for the final determination. Dillinger’s
affiliates were eventually able to gather some of the missing CTL plate manufacturer
information. See Dillinger’s Third Supplemental Section B&C Questionnaire Response
at 5, PD 434.
Salzgitter, for its part, responded to Commerce’s initial questionnaire by stating
that certain downstream sales by its affiliated reseller were not being reported because it
could not identify the original manufacturer of the CTL plate sold without performing a
burdensome manual check. See Certain Carbon and Alloy Steel Cut-to-Length Plate from Consol. Court No. 17-00158 Page 5
the Federal Republic of Germany, 81 Fed. Reg. 79,446 (Dep’t of Commerce Nov. 14,
2016) and accompanying Preliminary Decision Memorandum at 12, PD 436, available at
http://ia.ita.doc.gov/frn/summary/germany/2016-27313-1.pdf (last visited this date).
Salzgitter specifically noted that “while it is able to do so for customers upon request,
its accounting system does not track merchandise by manufacturer once placed into
inventory and, thus, it would be ‘unreasonably burdensome’ to obtain the requested
information.” Id. Commerce requested in two separate supplemental questionnaires that
Salzgitter provide these unreported sales in case the sales to the affiliated reseller failed
the arm’s-length test. Commerce preliminarily found that Salzgitter was able to report
these sales but chose not to identify all of its affiliated reseller’s sales of Salzgitter-
produced merchandise, therefore Commerce applied facts available, in part, with
an adverse inference to account for the affiliated reseller’s unreported downstream sales.
Id. Commerce indicated that it intended to examine the issue further at verification before
coming to a conclusion in the final determination. See id.
In the end, Commerce found both Dillinger’s and Salzgitter’s efforts insufficient to
complete identification of the manufacturer and applied partial AFA to those CTL plate
sales when determining the applicable dumping margins. See Decision Memorandum
at 27–34, 61–64. For Dillinger, because its sales to its home market affiliate failed the
arm’s-length test and exceeded five percent of Dillinger’s total reported home market
sales during the POI, Commerce continued to include all affiliate transactions of CTL plate
of unidentified manufacturers but substituted for Dillinger’s reported prices the “highest
non-aberrational net price among Dillinger’s downstream home market sales.” For Consol. Court No. 17-00158 Page 6
Salzgitter, Commerce included all of Salzgitter’s affiliates’ downstream home market CTL
plate sales with unidentified manufacturers, but applied the highest non-aberrational net
price among those sales to all such sales.
II. Standard of Review
The court sustains Commerce’s “determinations, findings, or conclusions” unless
they are “unsupported by substantial evidence on the record, or otherwise not in
accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). More specifically, when reviewing
agency determinations, findings, or conclusions for substantial evidence, the court
assesses whether the agency action is reasonable given the record as a whole. Nippon
Steel Corp. v. United States, 458 F.3d 1345, 1350–51 (Fed. Cir. 2006). Substantial
evidence has been described as “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” DuPont Teijin Films USA v. United States,
407 F.3d 1211, 1215 (Fed. Cir. 2005) (quoting Consol. Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). Substantial evidence has also been described as “something less than
the weight of the evidence, and the possibility of drawing two inconsistent conclusions
from the evidence does not prevent an administrative agency’s finding from being
supported by substantial evidence.” Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620
(1966). Fundamentally, though, “substantial evidence” is best understood as a word
formula connoting reasonableness review. 3 Charles H. Koch, Jr. Administrative Law and
Practice § 9.24[1] (3d ed. 2019). Therefore, when addressing a substantial evidence issue
raised by a party, the court analyzes whether the challenged agency action Consol. Court No. 17-00158 Page 7
“was reasonable given the circumstances presented by the whole record.” 8A West’s Fed.
Forms, National Courts § 3.6 (5th ed. 2019).
III. Discussion
A. Resort to “Facts Available”
“The manufacturer information is critical for the Department’s margin analysis
because the Department matches sales by, among other criteria, manufacturer.” Decision
Memorandum at 32. Without the identity on the record of the manufacturers of all CTL
plate transactions sold in the home market, Commerce faced the dilemma of how to treat
those sales in the margin calculation. The sole issue for the purpose of this opinion is
whether, as a solution to that problem, Commerce’s resort to “facts otherwise available”
(or “facts available”) with an adverse inference in its selection is reasonable (supported
by substantial evidence).
Dillinger first challenges Commerce’s determination by arguing that it notified
Commerce of its difficulty in tracing the CTL plate manufacturer for some transactions
and requested accommodation pursuant to 19 U.S.C. § 1677m(c)(1) and contending that
Commerce never properly responded to that notification. Dillinger Br. at 20 (citations
omitted). However, as explained in Dillinger France S.A., v. United States, 42 CIT ___,
___, 350 F. Supp. 3d 1349, 1364 (2018), a § 1677m(c)(1) notice to Commerce must
include “a full explanation and suggested alternative forms in which” the information could
be provided. Dillinger’s notification to Commerce in the underlying proceeding here did
not suggest any alternative form(s) of information that Commerce could use in place of
the missing information. Dillinger’s notification lacked the required “suggested” Consol. Court No. 17-00158 Page 8
alternatives, and therefore did not trigger Commerce’s obligations under § 1677m(c).
By contrast, Commerce properly alerted Dillinger and Salzgitter of their deficiencies in
providing the identities of all the manufacturers of all CTL plate sold by their affiliates. See
19 U.S.C. § 1677m(d) (upon receipt of non-compliant response to request for information,
Commerce required to inform respondent promptly about “the nature of the deficiency”).
Whenever information necessary to a determination is missing from the record,
Commerce must rely on other facts of record as an appropriate surrogate.
19 U.S.C. § 1677e(a)(1). Subsection 1677e(a)(2) specifies that whenever an interested
party or other person (A) “withholds,” or (B) “fails” to provide requested information by the
deadlines set for its submission and in the form and manner requested, or
(C) “significantly impedes” the proceeding, or (D) provides requested information that
cannot be verified, Commerce must resort to facts available. 19 U.S.C. § 1677e(a)(2).
A § 1677e(a)(2)(B) “failure” generally covers, but is not limited to, the process of
responding to and providing requested information. Such a “failure” is subject to the
notification to Commerce of difficulties in responding, discussed above. See 19 U.S.C.
§ 1677m(c). It is also subject to 19 U.S.C. § 1677m(e), which provides that Commerce
“shall not decline to consider” necessary “information” if (1) the submission is timely,
(2) the information is verifiable, (3) it is “not so incomplete that it cannot serve as a reliable
basis for reaching the applicable determination,” (4) the interested party “acted to the best
of its ability” to provide it, and (5) the information can be used without undue difficulties.
19 U.S.C. § 1677m(e). Consol. Court No. 17-00158 Page 9
Plaintiffs argue that their submissions in response to Commerce’s questionnaires
met all of these criteria. However, the “information” to which § 1677m(e) refers, in the
context of this proceeding, is the missing manufacturer information, not the remainder of
“the information” that Plaintiffs submitted. Plaintiffs acknowledge that the identity of the
CTL plate manufacturers is relevant to whether home market transactions should or
should not be included in margin calculations, and that they did not identify all of them.
Plaintiffs thus cannot escape the conclusion that they failed to satisfy § 1677m(e) with
respect to that information. In short, Plaintiffs’ reliance upon § 1677m(e) is misplaced.
As noted, Commerce disagreed with Plaintiffs that there was no “gap” in the record.
Plaintiffs argue, however, that the affected transactions were “small,” and they attempt to
minimize the lack of full information on the identities of the CTL plate manufacturers and
that information’s relevance by arguing that there were no “gaps” in their respective,
verified, affiliate home market price databases. See Salzgitter Br. at 4–16; Dillinger Br.
at 20–22, 24.
However, the price data for those transactions were not the problem. Indeed, they
were irrelevant to solving Commerce’s conundrum of an incomplete record. The real
problem for Commerce was that it could not determine whether to include or exclude the
CTL plate transactions from Dillinger’s and Salzgitter’s margin calculations because of
the missing manufacturer information. Accordingly, Commerce reasonably determined
that it must resort to “facts available” pursuant to 19 U.S.C. § 1677e(a). Consol. Court No. 17-00158 Page 10
B. Adverse Inference
Having determined that it had to resort to facts available to substitute for the
missing CTL plate manufacturer information, Commerce then faced the related question
of whether the circumstances called for an adverse inference. Commerce concluded that
the responsibility for the dilemma before it rested with respondents Dillinger and
Salzgitter, who had failed to provide the necessary information. Cf. QVD Food Co. v.
United States, 658 F.3d 1318, 1324 (Fed. Cir. 2011) (adequacy of record).
19 U.S.C. § 1677e(b) provides that if Commerce finds that an interested party has
failed to cooperate by not acting to the best of its ability to comply with a request for
information, it “may use an inference that is adverse to the interests of that party in
selecting from among the facts otherwise available.” This standard “requires the
respondent to do the maximum it is able to do.” Nippon Steel Corp. v. United States,
337 F.3d 1373, 1382 (Fed. Cir. 2003). “The statutory trigger for Commerce’s
consideration of an adverse inference is simply a failure to cooperate to the best of
respondent’s ability, regardless of motivation or intent.” Id. Pursuant to this standard, it is
irrelevant whether the respondent was intentionally evasive, or whether respondent
thought it had a valid legal basis for withholding the requested information. See Nan Ya
Plastics Corp. v. United States, 810 F.3d 1333, 1347 (Fed. Cir. 2016) (“Congress decided
what requirements Commerce must fulfill in reaching its determinations, § 1677e(b), and
we do not impose conditions not present in or suggested by the statute’s text”).
Respondents are required to “(a) take reasonable steps to keep and maintain full
and complete records documenting the information that a reasonable importer should Consol. Court No. 17-00158 Page 11
anticipate being called upon to produce; (b) have familiarity with all of the records it
maintains in its possession, custody, or control; and (c) conduct prompt, careful, and
comprehensive investigations of all relevant records that refer or relate to the imports in
question to the full extent of the importers’ ability to do so.” Nippon Steel, 337 F.3d
at 1382. Applying these standards, Commerce explained that “[t]he information in
question . . . is the type of information that a large steel manufacturer such as Dillinger
should reasonably be able to provide, in order to provide its customers with the mill test
certificates for the CTL plate they purchase.” Decision Memorandum at 64. Commerce
presumed that Dillinger was “familiar with all of the records” maintained by its affiliates
and that those affiliates “possessed information about the manufacturers of the CTL plate
at issue, yet reported the producers of only some of the CTL plate, but not all.” Id.
Commerce found that “Dillinger’s failure to report the requested manufacturer information,
accurately and in the manner requested, using the records over which it maintained
control, indicates that Dillinger did not act to the best of its ability to comply with our
requests for information.” Id.
Commerce reasoned similarly as to Salzgitter that the identity of the manufacturers
of the CTL plate resold by its affiliate “is the type of information that a respondent should
have reasonably anticipated being required to provide to its customers for quality
assurance and warranty claims[,]” and at verification “Salzgitter was able to identify the
manufacturer of a sale in the [separate] sales database when it attempted to obtain that
information.” Decision Memorandum at 33. Consol. Court No. 17-00158 Page 12
Commerce stressed that it provided Dillinger and Salzgitter “multiple” opportunities
to remedy the deficiencies in their affiliates’ downstream sales, and that Plaintiffs did not
remedy those deficiencies. Id. at 33–34, 64. Because the additional requested information
was not forthcoming, Commerce determined that Dillinger and Salzgitter had not
cooperated to the best of their ability by providing the necessary information to determine
how to attribute the transactions with unknown manufacturers.
Plaintiffs vigorously contest this determination. They argue that they exerted their
best efforts to comply with Commerce’s requests for information, and that there was no
need or justification for imposing an adverse inference upon resort to facts available. Both
Plaintiffs contend that it was unreasonable for Commerce to determine that they
“withheld" information or “failed” to (fully) respond because Nippon Steel does not require
perfection.
Dillinger argues that it exerted considerable efforts in complying with Commerce’s
information requests, and that “[f]ar from showing that Dillinger failed to put forth its
maximum effort to provide the Department with information, the record shows that
Dillinger expended Herculean efforts to provide the Department with all the information it
requested.” Dillinger Reply at 30–32. Dillinger also maintains that the very fact that
Commerce treated all the transactions for which a manufacturer could not be identified
as if they had been produced by Dillinger and included all of them in the margin calculation
implies that this “fully resolved” the issue of the missing manufacturer information. Id.
Dillinger’s conclusion, though, is not apparent from the record. The record does not
disclose whether attribution of the manufacture of all downstream sales of CTL plate in Consol. Court No. 17-00158 Page 13
the home market to Dillinger and inclusion of unadjusted prices for all such sales in the
margin calculation would have been adverse, neutral, or beneficial. Dillinger’s best efforts
arguments are therefore unpersuasive.
Salzgitter, for its part, emphasizes that it “did not refuse” to provide requested
information. It contends that its affiliate’s record-keeping systems during the POI complied
with the rules and regulations that apply to its commercial activities, and that a manual
search for the missing information was only theoretically possible. Further, Salzgitter
argues that Commerce “verified," based on the 10-minute turnaround time it took to locate
and match one CTL plate manufacturer at that time, that it would have taken 4,667 hours
for Salzgitter to provide the missing manufacturer information by manually correlating its
two disparate financial accounting and mill certificate management systems. See
Salzgitter Reply at 4–5 (citations omitted).
Nevertheless, whether that single incident amounts to verification of the time and
effort involved to “resolve” the missing manufacturer information for the affected CTL plate
transactions, it neither excuses nor resolves the problem that Commerce still faced as to
whether to include or exclude those transactions in Salzgitter’s margin calculation.
Salzgitter reiterates that in response to one of Commerce’s requests, it submitted
a “separate database” of CTL plate sales pertaining to transactions with missing
manufacturer data. Salzgitter proposed three options to Commerce for using this
“separate”/revised database in its margin calculation, namely, that Commerce could
(1) treat all such sales as if they were not Salzgitter-manufactured plate, (2) treat all such
sales as if they were Salzgitter-manufactured plate, or (3) treat some of the sales in the Consol. Court No. 17-00158 Page 14
separate database as if they were Salzgitter-manufactured plate based on the ratio of
plate purchased from Salzgitter affiliates versus other mills during the period of
investigation, and that if any of these proposals had been adopted the dumping margins
“would have been nil.” Salzgitter Br. at 14–15; Salzgitter Reply at 10.
Commerce interpreted Salzgitter’s proposals as arguing for “neutral” facts
available to substitute for the missing CTL plate manufacturer information. See Decision
Memorandum at 31. Commerce, at verification, highlighted that Salzgitter “was able to
identify the manufacturer of a sale in the additional SMSD sales database when it
attempted to obtain that information” for the final determination. Decision Memorandum
at 32 (footnote omitted). Commerce further found that Salzgitter’s three proposals lacked
the type of “connectivity” or indication that any of these proposals would reasonably reflect
the missing CTL plate manufacturer information for the relevant transactions.
The court cannot understand why Salzgitter did not just simply conduct a statistical
analysis of the 28,000 CTL plate sales with missing manufacturer information, using
a sufficient and randomized sample size that was then manually matched to the missing
manufacturer information from its legacy mill certificate management system. This
approach might have established a statistically valid extrapolation, rather than Salzgitter’s
mere speculation, of the missing manufacturer information based on the sample’s actual
ratio of Salzgitter-manufactured to non-Salzgitter-manufactured CTL plate sales. This
approach would also have presented Commerce with an evidentiary proffer that
Commerce would have been hard pressed to reasonably reject, and it would have better
carried Salzgitter’s burden to create an adequate record. QVD Food, supra, 658 F.3d Consol. Court No. 17-00158 Page 15
at 1324. And the court cannot understand why Salzgitter, having failed to figure out that
relatively straightforward approach out on its own, did not more completely avail itself of
the full operation of 19 U.S.C. § 1677m(c)(1) & (2) and promptly disclose its difficulties to
Commerce and request assistance to figure out a path to ascertain the necessary
information. An interested party’s unilateral assertion of difficulty, like Salzgitter’s here,
rather than a more straightforward request for help, is fraught with risk. See Maverick
Tube Corp. v. United States, 857 F.3d 1353, 1360–61 (Fed. Cir. 2018) (affirming
Commerce’s application of AFA where respondent failed to indicate that it was unable to
provide relevant information nor suggest alternative for provision of that information).
In conclusion, the record does not appear as detailed with Plaintiffs’ efforts to
obtain the missing information as they argue before the court, and on those points the
court mainly confronts only self-serving statements or interpretations of the record.
Importantly, Plaintiffs fail to identify where the record indicates the effect, if any, on
Dillinger’s and Salzgitter’s margins if complete manufacturer information had been
provided for all home market CTL plate sales. Accordingly, taking the record as a whole,
Commerce’s imposition of an adverse inference in the selection of facts available is
reasonable. Consol. Court No. 17-00158 Page 16
C. The Selected Adverse Facts Available
As partial AFA, for the final margin calculations Commerce applied the highest
non-aberrational net price observed among Plaintiffs’ downstream home market sales for
which the identity of the manufacturer of the CTL plate had not been reported to all such
sales. Decision Memorandum at 10, 11, 34, 64. Given this determination, Plaintiffs
challenge whether it was reasonable for Commerce to substitute downstream price
information covering CTL plate for which manufacturer information was missing from the
record.
In Dillinger France, supra, the court was confronted with a near identical issue.
Compare Issues and Decision Memorandum for the Final Affirmative Determination in the
Less-Than-Fair-Value Investigation of Certain Carbon and Alloy Steel Cut-To-Length
Plate from France, A-427-828, at Cmt. 5 (Dep’t of Commerce Mar. 29, 2017), available
at https://enforcement.trade.gov/frn/summary/france/2017-06627-1.pdf (last visited this
date), with Decision Memorandum at Cmts. 2 & 20; see also Dillinger France, 42 CIT
at ___, 350 F. Supp. 3d at 1361–64 (discussing application of partial AFA to Dillinger
France for failure to report manufacturer of CTL plate in certain downstream home market
sales of affiliates). Plaintiff in that case argued that it (1) put forth its best efforts to provide
the price and manufacturer data requested by Commerce, and that (2) for transactions
where the manufacturer data was unknown but the sales price was contained in the
record, Commerce impermissibly replaced the record sales prices with the highest non-
aberrational net price among that plaintiff’s downstream home market sales. There, the
court upheld Commerce’s decision that an adverse inference was warranted, but also Consol. Court No. 17-00158 Page 17
noted that “Commerce did not explain what authority permitted it to replace known
information with adverse facts available[,]” 42 CIT at ___, 350 F. Supp. 3d at 1364, and
remanded for further consideration. Here, the court does not reach the same conclusion,
as Commerce has clear statutory authority pursuant to 19 U.S.C. § 1677m(d)
to “disregard all or part of the original and subsequent responses” in an adverse inference
scenario. 19 U.S.C. § 1677m(d) (emphasis added).
In any event, and importantly as to this issue, on remand Commerce “relied on the
Court’s statement that ‘the reliability of the reported sales prices has not been called into
question and there is no informational gap in the sale prices for Commerce to fill.”
See Final Results of Redetermination Pursuant to Court Remand at 6, Dillinger France
S.A. v. United States, No. 17-00159 (CIT Mar. 11, 2019), ECF No. 56-1. Commerce
elaborated that “[g]iven this holding, and contrary to Nucor’s argument that we should use
the highest non-aberrational price as partial AFA, we find that we cannot ignore record
information that is not in dispute, pursuant to the facts on the record of this investigation
and the Court’s decision.” Id. As a result, Commerce changed its application of partial
AFA and “1) treated these downstream home market sales transactions as Dillinger-
France produced plate, rather than treating these transactions as sales of plate produced
by an unrelated manufacturer; and 2) relied on the sales prices as reported.” Id. at 6–7.
However, in doing so, Commerce found that “because of the small number of affected
transactions whose prices are used as a basis for normal value and which are actually
compared to U.S. sale prices, these home market transactions have no measurable
impact on Dillinger-France’s estimated weighted-average dumping margin.” Id. at 6. Consol. Court No. 17-00158 Page 18
Reasoned decision-making requires a certain measure of consistency, which is
not present across the France and Germany investigations. As noted, the cases share
near identical (almost verbatim) Issues and Decision Memoranda on the AFA issue. The
court therefore orders Commerce and the parties to review whether the same correction
made in Dillinger France would have any material effect on the margins in this case, or if
it would be immaterial. If the parties conclude that a similar correction as ordered in
Dillinger France would materially affect the margins, the court will then remand this matter
to Commerce to make a similar adjustment to its application of partial AFA to Dillinger
and Salzgitter as it did in the Dillinger France remand with resulting adjustment of the
investigation’s margins. 3 Accordingly, it is hereby
ORDERED that Commerce shall determine whether a similar correction as
ordered in Dillinger France would materially affect the margins in this action; and it is
further
ORDERED that Commerce shall notify the court with the results of its analysis on
or before August 7, 2019.
/s/ Leo M. Gordon Judge Leo M. Gordon
Dated: July 16, 2019 New York, New York
3 Including the “All Others” rate. See thyssenkrupp Br. at 4.