CAFC Panel Misunderstood Proposed Solution to Address Missing Manufacturing Info, Exporter Says
Exporter Salzgitter Flachstahl asked a panel at the U.S. Court of Appeals for the Federal Circuit to rehear its case on the use of partial adverse facts available against the company in the antidumping duty investigation on cut-to-length carbon and alloy steel plate from Germany. Salzgitter argued that the panel seemingly ruled against its proposed methodology for addressing missing manufacturer information for around 28,000 of its downstream sales made in Germany by one of its affiliates based on a misunderstanding of the methodology (AG der Dillinger Huttenwerke v. United States, Fed. Cir. # 24-1219).
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Salzgitter failed to submit the manufacturer information for the sales in the investigation on the grounds that it didn't keep that data and would pose far too high a burden to manually extract the information for each sale. The government agreed that submitting the information for all 28,000 sales would be too high a burden.
During the investigation, Salzgitter offered three alternatives to reporting the manufacturing information. The alternatives either treated none of the sales as Salzgitter-made plate, treated all the sales as Salzgitter-made plate or treated only a portion of each sale as Salzgitter-made plate, and each alternative led to a 0% dumping margin. Commerce rejected all three and used partial AFA for the gap in the record.
The Federal Circuit upheld this approach in June in light of the insufficient alternatives suggested by Salzgitter (see 2506170084). Regarding the company's third option, which treated a part of the 28,000 sales as home market sales, the court said the proposal was "insufficient," since it merely assumes, without evidence, that the same portion of sales the company would designate as home market sales is the same proportion that were identified as Salzgitter's in the data set. The court said Salzgitter should have suggested using a random sample of the sales.
Salzgitter urged the panel to reconsider their position on the grounds that "the panel apparently misunderstood the data used under Option 3" and "the panel’s conclusion is contradicted by accepted statistical principles." The company added that if sampling "would have been sufficient (which necessarily introduces sampling error), then using the entire population, as in Option 3, leading to zero sampling error, would also be reasonable."
The exporter argued that its third option was "at least as representative as a random sample." The three CAFC judges "apparently overlooked Salzgitter’s explanations with respect to the completeness and accuracy of the data -- representing the entire verified population of the sales with missing manufacturing information adjusted using verified purchases information -- and, thus, incorrectly concluded Option 3 was insufficient," the brief said.
Salzgitter asked the court to take judicial notice of academic literature on sampling error to supplement its claim that its third option was actually a better approach to determining the sales' manufacturer information.
In the decision, the panel said Commerce's demands put an "unreasonable burden" on Salzgitter, though it still upheld the use of partial AFA. Salzgitter said this approach "is in direct conflict with Commerce’s practice in comparable cases." Salzgitter said where Commerce found the burden on the respondent to be unreasonable, "Commerce then decided it was inappropriate to conclude the respondent had not cooperated to the best of its ability and apply AFA."