Rulings, remedies and court proceedings for customs and trade professionals

CIT Again Remands France Steel Plate Case on Lack of Production Cost Data

The Court of International Trade on Aug. 18 upheld the Commerce Department’s decision to apply facts available to production costs for a French steel plate exporter unable to distinguish between costs for its prime and non-prime merchandise, but again remanded the agency’s determination to use sales prices as a stand-in.

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Ruling on remand results filed by Commerce in response to a U.S. Court of Appeals for the Federal Circuit decision on its antidumping duty investigation on carbon and alloy steel cut-to-length plate from France, the trade court found Commerce did not adequately explain its continued reliance on sales data for the non-prime plate, which are rejects from the production process that aren’t up to standard. CIT did agree with Commerce that the agency may rely on facts available because Dillinger’s lack of data on production costs for producing the non-prime plate affects how costs are allocated for all of the exporter’s merchandise.

The Federal Circuit had found Commerce’s reliance on Dillinger’s books and records to determine production costs for the non-prime goods was erroneous because they reflect the lower selling price of the non-prime plate, rather than production costs themselves, failing to satisfy the legal requirement that the exporter’s records reasonably reflect the costs associated with production and sale of the merchandise.

Commerce may still rely on those costs, but in its remand results the agency “inadequately explained why it relied on Dillinger’s normal books and records as facts available.” Commerce put forward a theory at oral argument that the lower sales price from production defects can be considered a cost of production, but that reasoning was absent from the remand results themselves, CIT said.

“In short, Commerce inadequately explained its reliance on Dillinger’s normal books and records as facts otherwise available to supply missing cost information,” CIT said. “The court, therefore, remands to Commerce for further explanation or reconsideration consistent with this opinion.”

(Dillinger France v. United States, Slip Op. 22-97, CIT # 17-00159, dated 08/18/22, Judge Gary Katzmann. Attorneys: Marc Montalbine of DeKieffer & Horgan for plaintiff Dillinger France; Kelly Krystyniak for defendant U.S. government; Stephanie Bell of Wiley Rein for defendant-intervenor Nucor Corporation; Roger Schagrin of Schagrin Associates for defendant intervenor SSAB Enterprises)