AD Respondents Defend Commerce's Discretion to Reopen Record in Steel Keg AD Case
The Commerce Department's discretion to decide whether to reopen the record on remand in antidumping duty proceedings "extends to placing surrogate value information on the record, with no restriction that such surrogate values can only be submitted to the record if strictly necessary," exporters Ningbo Master International Trade Co. and Guangzhou Jingye Machinery Co. argued. Submittting comments to the Court of International Trade, the exporters defended Commerce's decision to use Mexican International Labour Organization (ILO) data to value labor in the antidumping duty investigation on refillable stainless steel kegs from China (New American Keg v. United States, CIT # 20-00008).
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"While Commerce could have determined it was accurate to still rely on a less contemporaneous Mexico ILC [International Labor Comparisons] labor rate or open the record to place the Mexican CPI [Consumer Price Index] data on the record, Commerce determined in its expertise, it was most accurate to place the contemporaneous ILO Mexican labor rate on the record," the brief said. "Plaintiff may have wished Commerce made a different decision, but Commerce’s decision is supported by substantial evidence."
In 2021, the trade court remanded the investigation for Commerce to explain why Malaysian labor data, which had signs of forced labor, was preferable to plaintiff and petitioner American Keg's preferred Brazilian labor data. On remand, the agency swapped the Malaysian labor data for Mexican labor data, though it used the Mexican data inflated with a Brazilian consumer price index. CIT ordered another remand, after which Commerce dropped the Brazilian inflator but continued using the Mexican data.
American Keg continued to challenge this decision, claiming that the Brazilian data clearly cleared the agency's SV criteria. Ningbo Master and Jingye defended Commerce's decision that said that using a Mexican labor rate was superior to a Brazilian one, since Mexico is a producer of identical merchandise. American Keg said that the Mexican labor rate was not needed to calculate a margin.
"However, the reopening of the record is not restricted to only circumstances where strictly necessary -- i.e. when there is no other reasonable alternative, like Plaintiff suggests," the brief said.