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CIT Enters Partial Judgment in German AD Case, Giving Exporter Chance to Appeal Use of AFA

The Court of International Trade in a Nov. 15 opinion partially ended an antidumping duty case for one of two plaintiffs, German exporter Salzgitter Mannesmann Grobblech, since its claims already have been resolved by the court. Salzgitter challenged the use of adverse facts available on its sales for which the company could not identify or report the manufacturer in the AD investigation of cut-to-length carbon and alloy steel plate from Germany.

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The trade court sustained Commerce's decision to apply facts available in 2019, but remanded the way Commerce used partial AFA in the investigation. The agency's decision was eventually sustained over Salzgitter's claim that the use of partial AFA was unreasonable or unlawful. Since the remaining issues in the case, brought by exporter Dillinger Huttenwerke, do not concern Salzgitter, Judge Leo Gordon entered judgment. "Partial judgment would also give Salzgitter the opportunity to immediately appeal if it so chooses," the court noted.

Concurrently with the opinion, the remaining parties issued their comments on Commerce's remand results, in which the agency reconsidered its rejection of Dillinger's proposed quality code for sour service petroleum transport. In its comments, the exporter said that Commerce properly determined that the facts of the case are analogous to the proceeding in Bohler Bleche BMBH & Co. v. U.S., though, in light of this finding, Commerce should also accept Dillinger's quality code for sour service pressure vessel steel.

In its last decision, the trade court noted that Commerce's exact methodology was remanded by the court in Bohler, where CIT found that the agency failed to adequately account for the alloy content of specialized high alloy steel goods, thus failing to account for serious differences in physical characteristics, costs and price (see 2306230054). On remand, Commerce declined to reconsider the analogous issue of a separate quality code for sour service pressure vessel steel.

Dilliger said in its comments that the "issues involving sour service petroleum transport plate and sour service pressure vessel plate are exactly the same," with the only difference being the "form of the downstream product using the steel plate." The plate is used to make pipelines to transport sour crude oil and pressure vessel plate is used to make pressured tanks holding sour crude oil, the exporter said.

Commerce's new decision that the facts of this case are analogous to Bohler "fundamentally shifts the record of this investigation and requires Commerce to further explain why its determination rejecting an additional Quality code for sour service pressure vessel steel (code 759) is reasonable in light of its approach in Bohler and now its acceptance f the Quality code for sour service petroleum transport steel (code 771)," the brief said.

(AG der Dillinger Huttenwerke v. United States, Slip Op. 23-160, CIT # 17-00158, dated 11/15/23; Judge: Leo Gordon; Attorneys: Marc Montalbine of deKieffer & Horgan for plaintiff Dillinger; Ron Kendler of White & Case for consolidated plaintiffs led by Salzgitter; Robert LaFrankie of Crowell & Moring for plaintiff-intervenor thyssenkrupp Steel Europe AG; Kara Westercamp for defendant U.S. government; Jeffrey Gerrish of Schagrin Associates for defendant-intervenor SSAB Enterprises; Stephanie Bell of Wiley Rein for defendant-intervneor Nucor Corp.)