CIT Judge Presses Petitioner on Claims in AD Review of Thai Steel Shelves
Court of International Trade Judge Mark Barnett pressed counsel for petitioner Edsal Manufacturing during oral argument on July 23 regarding the company's challenge to the Commerce Department's surrogate financial statement selection in the antidumping duty investigation on boltless steel shelving units from Thailand. Barnett also sharply questioned Edsal's counsel regarding their challenge to Commerce's use of the commercial invoice date as the date of sale for respondent Siam Metal Tech's U.S. sales and the agency's reliance on respondent Bangkok Sheet Metal's total cost of manufacture value (Edsal Manufacturing Co. v. U.S., CIT # 24-00108).
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From the outset of the argument, Barnett noted he recently ruled against Edsal in a case on the AD investigation on steel shelving units from India (see 2506040025). The judge said the petitioner's arguments raised in the case on the India investigation regarding the selection of surrogate financial statements are very similar to those currently before the court, urging Edsal's counsel to distinguish the India case and the present one.
Matthew Martin of Kelley Drye argued that Commerce failed to analyze the petitioner's preferred surrogate financial statement, which came from Sahamitr Pressure Container, in relying on surrogate company PNS' financial statement. The government defended Commerce's move on the basis that PNS makes boltless steel shelves while Sahamitr makes liquified petroleum gas cylinders, noting that the agency prefers to use surrogate data from a company that makes products identical to the respondents' (see 2503040071).
Martin then tried to distinguish the India case from the present one by claiming that Commerce "glossed over" evidence regarding the similarity between the products Sahamitr makes and the products one of the respondents makes.
"Oh, come on," Barnett said. "You're seriously going to stand here and tell me that when one company is a significant producer of other kinds of steel shelving, and the other one produces propane tanks, that those things are all the same thing?" The judge suggested that it would be incredibly unlikely that Commerce didn't address this fact.
When Martin said Commerce failed to use the right standard, since the agency should have reviewed the statements to see if the company makes the same "general category of merchandise," Barnett said, "I think I've heard enough on that one." When Martin then attempted to argue that PNS received countervailable subsidies, Barnett said "that's not going to get you anywhere," referring to his rejection of this argument in the India case.
Joshua Morey, another Kelley Drye attorney, then stepped in and said the distinguishing feature here between the present case and the India case is the fact that Commerce's analysis on the matter is "conclusory." The agency merely said Sahamitr doesn't make steel shelving, "which isn't the standard," Morey argued. On rebuttal, while Morey said Commerce failed to follow its established criteria in assessing the financial statements, Barnett said that Morey is ignoring the other criteria, which favor PNS, to narrowly focus on the lone factor requiring the agency to review the statements to see if the company makes products similar to those the respondent produces.
Throughout his exchange on this and other points with both Martin and Morey, Barnett kept urging the attorneys to specifically relate their arguments to the court's standard of review and not merely "re-hash" their arguments made before Commerce.
Morey then launched into his arguments against Commerce's use of the commercial invoice date as the date of sale for Siam Metal Tech's U.S. sales. Barnett engaged in an exchange with Morey regarding whether, for purposes of determining the U.S. sales date, the destination of a sale is a material term. Morey argued that date of sale "has nothing do with" the destination of the product, including whether it ends up in the U.S. Barnett said that if the purpose of determining the U.S. sales date is to set the universe of sales to determine whether dumping is occurring, it's unclear if the sales date is actually set if it's unknown whether the sale is going to the U.S.
Barnett said Commerce's regulation expresses a preference for using the invoice date.
The judge also pressed Morey on his argument regarding Bangkok Sheet Metal's total cost of manufacturing value, which Morey suggested can't actually reflect the respondent's actual costs given the unusual allocation of the total costs to overhead and labor. Barnett emphasized to Morey that he should target his arguments to the court's standard of review, noting that Commerce fully responded to the petitioner's argument on this front and made their own determination.
"What is your good faith, non-frivolous argument other than 'I don't understand how it could be different,' that points to evidence in the record that they didn't address or consider?" Barnett asked. While Morey said Commerce should have said it verified the information, Barnett replied: "I understand they didn't use the words that satisfy you, but that's not the standard of review."