Shopping Bag Exporter, Petitioner Seek Judgment in Cases Challenging AD Review
Colombian shopping bag exporter Ditar and domestic petitioner Coalition for Fair Trade in Shopping Bags each filed a motion for judgment in their respective cases challenging the results of the same antidumping duty investigation. Ditar, a mandatory respondent, argued the Commerce Department had been required to make a level-of-trade adjustment between its U.S. and home markets, while the Coalition alleged Ditar’s records were unreliable (Ditar v. United States, CIT # 24-00130; Coalition for Fair Trade in Shopping Bags v. United States, CIT # 24-00157).
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The Coalition said in its case, again, that Ditar had misreported several of its sales as home market transactions (see 2409120037).
As it did in its complaint, it claimed Commerce had been wrong to not apply adverse facts available for Ditar’s failure to report that a product it sold to a Colombian customer ended up in the United States. It alleged that Ditar had known its customer’s intentions, despite Commerce’s claim otherwise.
At verification, “Ditar acknowledged ... [it] ‘had knowledge that the merchandise would be subsequently be exported to the United States,’” it said.
In turn, in its brief, Ditar said it made its home market and U.S. distributor sales at the same level of trade, but that its direct home market sales to end users were “at a more remote and significantly different level.”
It said its selling activities and prices were substantially different between the alleged levels, and called a level of trade adjustment “imperative.”
Commerce was right to find that all of Ditar’s U.S. sales were conducted at only one level, it said -- Ditar’s selling activities on the export side only involved sales support, logistical services and sales-related administrative services. Ditar did the exact same things for its sales to Colombian distributors, but it “performed substantial additional selling functions,” as well as the previous selling functions at a greater intensity, with regard to Colombian end-use customers, it said.
For example, it said, it only had two distributor sales staff “who conducted primarily order input activities, engaged in sales forecasting only yearly, provided little customer marketing support, negotiated prices only rarely, and handled warranty claims only occasionally.” On the other hand, its end user sales staff was a 19-person team that interacted daily with customers, Ditar said.
The exporter provided all of this information in its questionnaire responses, it said, as well as a price comparability analysis that showed the differences between average net prices of Colombian distributor and end user sales.
But the department refused to find that Ditar’s home market sales were conducted on two different levels, saying Ditar hadn’t shown its customer types differed and that “‘Commerce's rulemaking’ established that ‘different marketing stages occur where merchandise changes hands twice,’” a requirement Ditar’s products didn’t meet.
Particularly, the department said that it disagreed “that having more frequent sales meetings, client meetings, personnel training, or more small customer support and customer personnel training for end users indicates that sales were made at different LOTs.” In essence, it conceded that Ditar’s selling activities for end user customers were more frequent and intensive than the exporter’s distributor sales activities, but decided that wasn’t enough.
“It is hard to imagine a more constrained logical progression or one based less on substantial evidence,” it said.
Commerce also conducted its own analysis of Ditar’s home market prices “on a product code-basis (i.e., not based on CONNUMS),” Ditar said. And it only determined that the difference wasn’t substantial “after eliminating from its analysis one product code that Commerce thought aberrational,” over Ditar’s protest.
This was “a separate price comparison analysis that is not supported by substantial evidence and that conflicts with long-established Commerce practice,” the exporter said.