US Making Post-Hoc Argument That Producers Can't Be Collapsed Across Borders, Petitioner Says
Following a voluntary remand which saw the Commerce Department maintain a prior determination, petitioner ArcelorMittal Tubular Products said that DOJ was inventing a new, post-hoc rule that entities couldn’t be collapsed across borders (ArcelorMittal Tubular Products v. United States, CIT # 24-00039).
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The department continued to find, on remand, that Italian exporter Dalmine and Romanian input provider Silcotub shouldn’t be collapsed for its final determination on cold-drawn mechanical tubing of carbon and alloy steel from Italy (see 2412200027). Commerce requested the remand to allow petitioner ArcelorMittal Tubular Products to submit previously rejected information from recent cases with “analogous facts.”
ArcelorMittal argued that the U.S. was attempting to prop up a post-hoc rationale that “a producer located outside of the country covered by an antidumping duty order cannot be considered a ‘producer of subject merchandise’ and therefore is not subject to the Department's collapsing regulations."
The only time the department said something similar in its final results was when it noted that Silcotub couldn’t produce subject merchandise, “which has a country of origin of Italy,” because it is located in Romania -- but the statement was “unaccompanied by any citation to the law or administrative record,” ArcelorMittal claimed. In fact, it said, no part of Commerce’s decision not to collapse cited “any statutory or regulatory provision,” it said.
And DOJ’s legal analysis otherwise doesn’t cite Commerce’s final results at all, it said.
It asked for a remand so that the department could offer a better explanation. This would not be a "useless formality,” it said. The Supreme Court has ruled in other cases that proper explanations promote accountability and allow for “confidence that the reasons given are not simply ‘convenient litigating position[s],’” it said.
It also argued that the law governing collapsing affiliated entities doesn’t require both producers be located in the company subject to the orders. And, in the same results that rejected collapsing Dalmine and Silcotub as legally impermissible, Commerce still said that it could reconsider its decision with the provision of new evidence, the petitioner said.
“If there were a statutory bar to collapsing production facilities in two countries, the Department presumably could not reconsider its decision based on new facts,” it said.
And Commerce has collapsed entities across country borders in other cases, meaning its past practice runs contrary to its current claim, ArcelorMittal said. It cited the investigation on Malaysian wind towers, which it said involved collapsing a Malaysian producer and a Korean parent company.
Dalmine and Silcotub produce similar, “and in some instances identical,” products, and neither entity’s production facilities would need “substantial retooling to restructure their manufacturing facilities,” it said.
“Defendant’s only argument is to fall back on the claim that Silcotub cannot produce subject merchandise,” it said. “That does not excuse the Department from the requirement to consider all material evidence on the record in reaching a decision.”