353 F. Supp. 3d 1303
Ct. Int'l Trade2018Background
- Commerce conducted an administrative review of the antidumping duty order on carbon and certain alloy steel wire rod from Mexico for the POR Oct 1, 2014–Sep 30, 2015; Deacero was a respondent.
- Deacero submitted a revised section D (cost) dataset after Commerce’s initial questionnaire; Commerce used that revised dataset to calculate preliminary margins.
- Commerce later concluded the revised dataset introduced an unexplained reallocation of billet (CONNUM) costs, revealed planned-vs-actual production issues, and lacked supporting record evidence.
- After follow-up (post‑prelim) questionnaires, Commerce found Deacero’s explanations and documentary support inadequate and determined Deacero impeded the review.
- Commerce applied total facts otherwise available with an adverse inference (total AFA) and assigned Deacero the highest rate alleged in the 2001 petition (40.52%) as the AFA margin.
- The Court sustained Commerce’s use of total AFA but remanded Commerce’s selection of the 40.52% petition rate for further explanation or reconsideration because Commerce did not place corroborating materials on the record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Commerce permissibly applied "facts otherwise available" (total FA) to Deacero | Deacero timely corrected errors; Commerce should not disregard its revised dataset or treat corrections as withholding | Deacero withheld required information, revisions impeded the review, and Commerce properly found the record insufficient | Court: Sustained Commerce’s use of facts otherwise available; Deacero’s revised dataset was inadequately explained and unreliable |
| Whether Commerce permissibly applied an adverse inference when selecting among facts otherwise available | An adverse inference was not warranted because Deacero acted in good faith and attempted to correct errors | Deacero did not act to the "best of its ability"—failed to substantiate revisions despite opportunities to explain | Court: Sustained Commerce’s application of an adverse inference; Deacero did not cooperate to best of its ability |
| Whether Commerce lawfully selected 40.52% (highest petition rate) as the total AFA rate without corroboration on the record | The petition rate is punitive and was not corroborated on the current record; Commerce must put corroborating materials on the record | Commerce relied on a pre‑initiation analysis from 2001 and the rate has probative value; initiation notices are public | Court: Remanded selection of 40.52% for further explanation or reconsideration because Commerce failed to place corroborating documents on the administrative record |
| Whether Commerce erred in calculating G&A for Deacero’s U.S. affiliate (omitting further manufacturing costs) | Commerce ignored additional manufacturing costs when computing the affiliate’s G&A ratio | Commerce treated these issues as moot given its total AFA determination | Court: Did not reach merits—challenge moot in view of total AFA determination |
| Whether Commerce failed to correct clerical errors in the preliminary margin calculation | Plaintiffs identified clerical errors that should have been corrected | Commerce treated the issue as moot after applying total AFA | Court: Did not reach merits—challenge moot in view of total AFA determination |
| Whether Commerce improperly used zeroing instead of average‑to‑average methodology | Zeroing produced inflated margins; Commerce should have used average‑to‑average | Commerce applied zeroing but deemed the point moot under total AFA | Court: Did not reach merits—challenge moot in view of total AFA determination |
Key Cases Cited
- Timken U.S. Corp. v. United States, 434 F.3d 1345 (Fed. Cir. 2006) (Commerce has discretion to accept or reject corrective information; must balance accuracy and finality)
- Nippon Steel Corp. v. United States, 337 F.3d 1373 (Fed. Cir. 2003) (defining "best of its ability" as doing the maximum one is able to do)
- QVD Food Co. v. United States, 658 F.3d 1318 (Fed. Cir. 2011) (respondent bears responsibility to populate the record with relevant information)