Steel Exporter Challenges Total AFA for Issue Impacting ‘0.4%’ of Sales at CAFC
Indian exporter Chandan Steel told the U.S. Court of Appeals for the Federal Circuit on June 4 that the 145% total adverse facts available antidumping duty rate it received wasn’t justified by a reporting error that affected only 0.4% of its U.S. sales (Chandan Steel v. United States, Fed. Cir. # 25-1291).
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Court of International Trade Judge Timothy Stanceu said Oct. 2 that the Commerce Department’s calculated rate was reasonable, as Chandan hadn’t participated in the underlying review to the best of its ability and the department acted within its discretion when it decided not to rely on Chandan’s third-market sales information (see 2410030013). In his opinion, Stanceu noted that Commerce had claimed the exporter repeatedly misreported its information, made errors in other parts of the review and failed to make corrections when given the chance.
Chandan argued in its June 4 reply brief to CAFC that its failure to report certain third-country sales made before and after the period of review -- sales of flanges that are between .5 and 1.5 inches in diameter -- mostly didn’t impact the review. It pointed out that it did report the third-country sales of those flanges made during the review period.
Every U.S. sale must be matchable to a third-country sale made up to three months before or two months after the U.S. sale, it said. That meant that all U.S. sales Chandan made between June 2018 and July 2019 could be compared with third-country sales made during the review period.
Further, a U.S. sale made at the end of the review period doesn’t need to be compared with a third-market sale made outside the period of review unless no such sale occurred during it, Chandan added. That meant that very few of its U.S. sales actually lacked a comparator.
Commerce could therefore have combined Chandan’s database of all review period sales with its database of window period sales of flanges 1.5 inches to 24 inches in diameter and calculated a “gross unit price without any adjustments for a useable comparison market database,” the exporter said. But the department refused to do so because of acknowledged “minor” errors in the window period sales database, it said.
Instead, the department wrongly rejected all of Chandan’s third-country sales reporting, it said.
It also pushed back against the finding that it hadn’t participated in the review to the best of its ability, saying Commerce failed to appreciate the context of the errors.
For example, it said it failed to report .5- to 1.5-inch diameter flange sales before and after the review period due to a translation error made by its employees, who aren’t native English speakers. The employees interpreted Commerce’s instruction in its initial questionnaire to report third-country sales of flanges starting at “one half inch” in diameter as meaning 1.5 inches. The department clarified in a subsequent questionnaire, but only instructed Chandan to update sales made during the review period, the exporter said.
It said it’s a small company with a small professional staff. Its employees aren’t fluent in English and don’t understand the intricacies of U.S. antidumping duty procedures, it claimed. These issues were compounded by the COVID-19 pandemic, it said.
And the department never notified it about the errors or missing information, it said.
“Commerce cannot lawfully invoke 1677e(a) unless it tried to use the data, found it objectively unusable, and gave a meaningful chance to correct the issue,” it said.