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'Adverse Inferences' Cannot Be Made When Using a Respondent's Own Information, DOJ Argues

A German steel producer cannot claim that the Commerce Department used adverse inferences in selecting the producer's own submitted information, DOJ said in a March 23 response brief at the Court of International Trade defending Commerce's third remand redetermination on an antidumping duty investigation on carbon and alloy steel cut-to-length plate from Germany. DOJ said Commerce complied with the court's order to further explain the department's use of Dillinger’s normal books and records as facts otherwise available (AG Der Dillinger Huttenwerke v. U.S., CIT Consol. # 17-00158).

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In the remand redetermination, Commerce explained that because the costs it used reasonably reflect the cost of producing both prime and non-prime plate, the costs of producing the non-prime products directly affects the costs assigned to the production of prime products. Dillinger argued that Commerce failed to comply with the court’s remand order because the agency had not changed its original determination and continued to report costs of non-prime plate to its sales value and shift these costs to prime plate. Dillinger's argument "misses the mark" because the court did not find that Commerce could not rely on Dillinger’s normal books and records as facts otherwise available, DOJ argued.

The government argued that Commerce’s reliance on Dillinger’s books and records to fill an informational gap was permissible because Commerce did not make a finding that an adverse inference was warranted, and selected from among the facts otherwise available without an adverse inference. Instead, Commerce relied on record information "as submitted by Dillinger and recorded in Dillinger’s own normal books and records," DOJ said. "Dillinger cannot demonstrate that Commerce used an adverse inference in selecting Dillinger’s own submitted information ... as the best available information to fill gaps in the record," DOJ said.