CIT Won't Tell Commerce to Ignore Data Voluntarily Submitted by Respondent
The Court of International Trade won't order the Commerce Department "to ignore information" antidumping duty respondent Navneet Education "voluntarily put on the record," the trade court ruled in Dec. 29 decision sustaining the 2019-20 AD review on notebook paper from India.
Judge Stephen Vaden said that while Navneet didn't give the agency the physical characteristics of the goods in its cost database, it did put the data in question on the record as part of its submissions to Commerce.
Navneet asked the court to "disregard the best available comparator data on the record in favor of using another, less similar product," which would lead to a "less accurate dumping margin," but a more favorable mark for Navneet, the court said. "The request answers itself."
Timothy Brightbill, counsel for petitioner Association of American School Paper Suppliers, said in an email that the association is "very pleased with the Court's decision. For years, Navneet has continued to undercut domestic sales prices at major U.S. accounts, denying American companies important sales opportunities and damaging the U.S. industry."
Vaden also rejected Navneet's claims that Commerce's use of the voluntarily submitted information constituted a change in its methodology and that the agency's methodology distorted the firm's dumping margin.
On the latter point, the respondent only filed a few "vague, conclusory statements" administratively claiming that Commerce erred in not limiting the cost database it used. However, when it got to the trade court, the company submitted multiple pages of sophisticated arguments on how the use of the cost database distorted the dumping mark.
The court rejected this split approach as a "surprise attack" on Commerce "by turning a three-sentence argument before Commerce into a multi-page attack in court." The result is that the company failed to raise the issue administratively and thus waived it, the court ruled.
In the review, Commerce used cost components of third-country control numbers (CONNUMs) only sold in third countries as surrogate costs for the difference-in-merchandise test, despite Navneet not having submitted the CONNUMs in its cost database. Instead it had submitted it elsewhere on the record. Vaden said that the agency properly took from the record in using the data, despite it not appearing in the company's cost database.
Navneet told CIT that Commerce failed to provide notice of its change in methodology, arguing that the agency affirmed its practice of not using third-country CONNUM costs in an AD review of ripe olives from Spain. However, Vaden found the comparisons to this review to be inapt because that review addressed the petitioner's claim that the respondent failed to provide third-country product information in its cost database, shifting the discussion to whether the omission required drawing an adverse inference and not on whether Commerce will ignore information a company submitted voluntarily.
Since the record doesn't show that Commerce "changed its practice of using the best available data to find the closest comparator for its cost calculations and because the agency notified Plaintiff of what data it intended to use and considered Plaintiff’s objections to it," the court must uphold the decision, the opinion said.
The court also ruled that Navneet wasn't without notice, given that Commerce raised the issue administratively. The agency said what it would do regarding the third-country costs in the review's preliminary results, meaning the exporter was able to object to the issue.
(Navneet Education v. United States, Slip Op. 23-191, CIT # 22-00132, dated 12/29/23; Judge: Stephen Vaden; Attorneys: Irene Huei-min Chen of Chen Law Group for plaintiff Navneet Education; Antonia Ramos Soares for defendant U.S. government; Timothy Brightbill of Wiley Rein for defendant-intervenor Association of American School Paper Suppliers)