Goodluck India Ltd. v. United States , 2019 CIT 110 ( 2019 )

Slip Op. 19-
UNITED STATES COURT OF INTERNATIONAL TRADE
GOODLUCK INDIA LIMITED,
Plaintiff,
v.
UNITED STATES,
Defendant, Before: Gary S. Katzmann, Judge
Court No. 18-00162
and
ARCELORMITTAL TUBULAR
PRODUCTS, MICHIGAN SEAMLESS
TUBE, LLC, PLYMOUTH TUBE CO. USA,
PTC ALLIANCE CORP., WEBCO
INDUSTRIES, INC. AND ZEKELMAN
INDUSTRIES, INC,
Defendant-Intervenors.
OPINION
[Plaintiff’s motion for judgment on the agency record is granted. The court remands to Commerce
for further proceedings consistent with this opinion.]
Dated:$XJXVW
Ned H. Marshak and Michael S. Holton, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt,
LLP, of New York, NY and Washington, DC, argued for plaintiff. With them on the brief were
Andrew T. Schutz, Kavita Mohan, and Jordan C. Kahn.
Ann C. Motto, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of
Justice, of Washington, DC, argued for defendant. With her on the brief were Joseph H. Hunt,
Assistant Attorney General, Jeanne E. Davidson, Director, and Claudia Burke, Assistant Director.
Of counsel was Caroline D. Bisk, Office of the Chief Counsel for Trade Enforcement &
Compliance, Office of the General Counsel, U.S. Department of Commerce, of Washington, DC.
Court No. 18-00162 Page 2
Melissa M. Brewer and Kathleen M. Cusack, Kelley Drye & Warren, LLP, of Washington, DC,
argued for defendant-intervenors. With them on the brief were R. Alan Luberda and David C.
Smith.
Katzmann, Judge: This case turns on distinguishing correctible importer mistakes from
submissions of untimely new factual information. Before the court is whether the Department of
Commerce (“Commerce”) abused its discretion by rejecting as untimely plaintiff Goodluck India
Limited’s (“Goodluck”) corrections to information submitted as part of a less than fair value
investigation on carbon and alloy steel from India and by subsequently relying on other sources of
information to complete the factual record.
As part of the investigation, Goodluck submitted sales data on cold-drawn mechanical
tubing sold in both its home market of India and in the United States and applied particular product
characteristic codes to the underlying data. After Goodluck had begun preparing its data,
Commerce revised its product characteristic coding guidance and extended Goodluck’s
submission deadline. When Goodluck submitted its responses to Commerce, it had failed to revise
the coding for 682 home market sales, resulting in cascading errors in Goodluck’s home sales and
cost databases. Goodluck alerted Commerce to its errors -- which it characterized as correctible
minor errors -- on the first day of verification, but Commerce rejected Goodluck’s updated
submissions as untimely new factual information. Consequently, Commerce rejected all of
Goodluck’s submitted data and issued Goodluck a final dumping margin of 33.80 percent based
on total adverse facts available. Commerce also used another respondent’s export subsidy rate to
calculate Goodluck’s export subsidy cash deposit offset, rather than the rate specifically calculated
for Goodluck in the companion countervailing duty investigation. Goodluck appeals Commerce’s
determination on each issue to this court.
Court No. 18-00162 Page 3
The court concludes that Commerce’s decision to reject Goodluck’s corrections was an
abuse of discretion and remands to Commerce to consider Goodluck’s corrected submission as
well as to explain why it has departed from its general practice for calculating cash deposit offset
rates in this case.
BACKGROUND
I. Legal Background
Dumping occurs when a foreign company sells a product in the United States for less than
fair value. Sioux Honey Ass’n v. Hartford Fire Ins. Co., 672 F.3d 1041, 1046 (Fed. Cir. 2012).
Similarly, a foreign country may artificially lower a product’s price through subsidies. U.S. Steel
Grp. v. United States, 96 F.3d 1352, 1355 n.1 (Fed. Cir. 1996). To ameliorate distortions caused
by these economic practices, Congress enacted the Tariff Act of 1930 (“Act”), which empowers
Commerce to investigate potential dumping or subsidies, and if appropriate, issue orders imposing
duties on the subject merchandise. Sioux Honey Ass’n, 672 F.3d at 1046–47. These antidumping
and countervailing duty actions are intended to be remedial, not punitive in nature, Chaparral Steel
Co. v. United States, 901 F.2d 1097, 1103 (Fed. Cir. 1990), and it is Commerce’s duty to determine
margins as accurately as possible, Rhone Poulenc, Inc. v. United States, 899 F.2d 1185, 1191 (Fed.
Cir. 1990).
A. Minor Corrections
“Although Commerce has authority to place documents in the administrative record that it
deems relevant, the burden of creating an adequate record lies with interested parties and not with
Commerce.” Nan Ya Plastics Corp. v. United States, 810 F.3d 1333, 1337 (Fed. Cir. 2016)
(quoting QVD Food Co. v. United States, 658 F.3d 1318, 1324 (Fed. Cir. 2011)). Commerce’s
Court No. 18-00162 Page 4
regulations address submissions of new factual information1 by parties to an investigation, with
the type of factual information determining the time limit for submission to Commerce under 19
C.F.R. § 351.301(c). Pertinent here, 19 C.F.R. § 351.301(c)(5) requires that miscellaneous new
factual information must be submitted either 30 days before the scheduled date of the preliminary
results, or 14 days before verification, whichever is earlier.2
1
19 C.F.R. § 351.102(b)(21) provides that:
“Factual information” means:
(i) Evidence, including statements of fact, documents, and data submitted
either in response to initial and supplemental questionnaires, or, to rebut,
clarify, or correct such evidence submitted by any other interested party;
(ii) Evidence, including statements of fact, documents, and data submitted
either in support of allegations, or, to rebut, clarify, or correct such evidence
submitted by any other interested party;
(iii) Publicly available information submitted to value factors under
§ 351.408(c) or to measure the adequacy of remuneration under
§ 351.511(a)(2), or, to rebut, clarify, or correct such publicly available
information submitted by any other interested party;
(iv) Evidence, including statements of fact, documents and data placed on
the record by the Department, or, evidence submitted by any interested
party to rebut, clarify or correct such evidence placed on the record by
the Department; and
(v) Evidence, including statements of fact, documents, and data, other
than factual information described in paragraphs (b)(21)(i)-(iv) of this
section, in addition to evidence submitted by any other interested party to
rebut, clarify, or correct such evidence.
2
19 C.F.R. § 351.301(c)(5) provides that:
Factual information not directly responsive to or relating to paragraphs (c)(1)-(4)
of this section: Paragraph (c)(5) applies to factual information other than that
described in § 351.102(b)(21)(i)-(iv). The Secretary will reject information filed
under paragraph (c)(5) that satisfies the definition of information described in
§ 351.102(b)(21)(i)-(iv) and that was not filed within the deadlines specified above.
All submissions of factual information under this subsection are required to clearly
explain why the information contained therein does not meet the definition of
factual information described in § 351.102(b)(21)(i)-(iv), and must provide a
Court No. 18-00162 Page 5
Apart from new factual information, “Commerce is free to correct any type of importer
error—clerical, methodology, substantive, or one in judgment—in the context of making an
antidumping duty determination, provided that the importer seeks correction before Commerce
issues its final results and adequately proves the need for the requested corrections.” Timken U.S.
Corp. v. United States, 434 F.3d 1345, 1353 (2006). 19 C.F.R. § 351.224(f) provides a definition
of “ministerial error.”3 Additionally, this court has held that Commerce abuses its discretion by
rejecting “corrective information,” which includes submissions “to correct information already
provided [to Commerce],” Fischer S.A. Comercio v. United States, 34 CIT 334, 348, 700 F. Supp.
2d 1364, 1376 (2010), or to “clarif[y] information already in the record,” id. at 1373, but not to
“fill [ ] gap[s] caused by [a respondent’s] failure to provide a questionnaire response or evidence
requested during verification,” id. at 1377. Notably, no regulation addresses the circumstances
under which corrections will be accepted or a time frame within which corrections should be
submitted. Deacero S.A.P.I de C.V. v. United States, 42 CIT __, __, 353 F. Supp. 3d 1303, 1307
(2018); see also Timken, 434 F.3d at 1353 (noting that it “appears that Commerce has not issued
any regulation addressing whether an importer can correct errors in the information it has
submitted, [nor] restricted the types of importer errors that are eligible for such correction.”).
detailed narrative of exactly what information is contained in the submission and
why it should be considered. The deadline for filing such information will be 30
days before the scheduled date of the preliminary determination in an investigation,
or 14 days before verification, whichever is earlier, and 30 days before the
scheduled date of the preliminary results in an administrative review, or 14 days
before verification, whichever is earlier.
3
19 C.F.R. § 351.224(f) provides that “under this section, ministerial error means an error in
addition, subtraction, or other arithmetic function, clerical error resulting from inaccurate copying,
duplication, or the like, and any other similar type of unintentional error which
the Secretary considers ministerial.”
Court No. 18-00162 Page 6
While Commerce is afforded discretion in deciding whether to accept a respondent’s
corrective information, Deacero, 353 F. Supp. 3d at 1309, if “Commerce acted differently in this
case than it has consistently acted in similar circumstances without reasonable explanation, then
Commerce’s actions will have been arbitrary,” Consolidated Bearings Co. v. United States, 348
F.3d 997, 1007 (Fed. Cir. 2003) (citing RHP Bearings v. United States, 288 F.3d 1334, 1347 (Fed.
Cir. 2002)). Moreover, “Commerce abuse[s] its discretion [when it] refus[es] to accept updated
data when there [i]s plenty of time for Commerce to verify or consider it.” Papierfabrik August
Koehler SE v. United States, 843 F.3d 1373, 1384 (Fed. Cir. 2016) (citing NTN Bearing Corp. v.
United States, 74 F.3d 1204, 1208–09 (Fed. Cir. 1995) (requiring correction of typing errors) and
Timken, 434 F.3d at 1353 (expanding the holding in NTN to “any type of importer error—clerical,
methodology, substantive, or one in judgment—... provided that the importer seeks correction
before Commerce issues its final results and adequately proves the need for the requested
corrections”)). While “a tension may arise between finality and correct result” at later stages of
an investigation, “[p]reliminary determinations are ‘preliminary’ precisely because they are
subject to change . . . the tension between finality and correctness [does] not exist at th[at] time.”
NTN, 74 F.3d at 1208.
B. Reliance on facts otherwise available and adverse facts available
If a party fails to satisfactorily respond to Commerce’s requests for “necessary
information” to calculate a dumping margin by withholding requested information, failing to
provide information by the submission deadlines or in the form or manner requested, significantly
impeding a proceeding, or providing information that cannot be verified, Commerce shall use facts
otherwise available to calculate the margin. 19 U.S.C. § 1677e(a)(2). “The use of facts otherwise
available . . . is only appropriate to fill gaps when Commerce must rely on other sources of
information to complete the factual record.” Zhejiang Dunan Hetian Metal Co. v. United States,
Court No. 18-00162 Page 7
652 F.3d 1333, 1346 (Fed. Cir. 2011) (citing Nippon Steel Corp. v. United States, 337 F.3d 1373,
1381 (Fed. Cir. 2003)).
Under 19 U.S.C. § 1677e(b)(1)(A), Commerce may apply adverse inferences as facts
available (“AFA”) when Commerce “finds that an interested party has failed to cooperate by not
acting to the best of its ability to comply with a request for information[.]” A respondent does not
cooperate to the “best of its ability” when it fails to “put forth its maximum effort to provide
Commerce with full and complete answers to all inquiries.” Dillinger France S.A. v. United States,
42 CIT __, __, 350 F. Supp. 3d 1349, 1360 (2018) (quoting Nippon Steel, 337 F.3d at 1382).
“[W]here there is useable information of record but the record is incomplete,” Commerce applies
partial AFA. Wash. Int’l Ins. Co. v. United States, 33 CIT 1023, 1035 n.18 (2009) (citing Yantai
Timken Co., Ltd. v. United States, 31 CIT 1741, 1746–48, 521 F. Supp. 2d 1356, 1364–65 (2007),
aff’d 300 Fed. Appx. 934 (Fed. Cir. 2008)). In contrast, when “none of the reported data is reliable
or usable,” Mukand, Ltd. v. United States, 767 F.3d 1300, 1305, 1307–08 (Fed. Cir. 2014), that is,
when it “exhibit[s] pervasive and persistent deficiencies that cut across all aspects of the data,”
Zhejiang, 652 F.3d at 1348, Commerce applies total AFA.
C. Export subsidy cash deposit offset determinations
“If Commerce issues a final determination that subject merchandise is being, or is likely to
be sold in the United States at less than fair value, Commerce orders the posting of a cash deposit
for each entry of the subject merchandise based on the estimated weighted average dumping
margin.” Jinko Solar Co. v. United States, 41 CIT __, 229 F. Supp. 3d 1333, 1359 (2017) (citing
19 U.S.C. §§ 1673d(a)(1), 1673d(c)(1)(B)(i)–(ii)). “The price used to establish export price and
constructed export price shall be increased by the amount of any countervailing duty imposed on
the subject merchandise . . . to offset an export subsidy.” 19 U.S.C. § 1677a(c)(1)(C). “Neither
the statute nor Commerce’s regulations otherwise define how the cash deposit is to be calculated
Court No. 18-00162 Page 8
in an investigation,” and so “Commerce has discretion to establish a reasonable practice to
calculate a cash deposit rate in investigations where there is no clear statutory directive.” Jinko,
229 F. Supp. 3d at 1358 (citing United States v. Eurodif S.A., 555 U.S. 305, 316 (2009)).
II. Factual Background and Procedural History
On May 16, 2017, Commerce initiated less than fair value investigations on carbon and
alloy steel from India, see Initiation of Less-Than-Fair-Value Investigations, 82 Fed. Reg. 22,491(May 16, 2017), Public Record (“P.R.”) 32, following a petition submitted on April 19, 2017 by
ArcelorMittal Tubular Products, Michigan Seamless Tube, LLC, PTC Alliance Corp., Webco
Industries, Inc., and Zekelman Industries, Inc. Id.On June 19, 2017, Commerce designated Goodluck as a mandatory respondent.4 See U.S.
Department of Commerce Questionnaire to Goodluck (June 19, 2017) (“ADD Questionnaire”),
P.R. 81. Commerce solicited data from Goodluck via questionnaire on every sale of subject
merchandise Goodluck made in its home market of India (“Section B”), to the United States
(“Section C”), and product specific costs (“Section D”) during the period of investigation from
4
In antidumping duty investigations or administrative reviews, Commerce may select mandatory
respondents pursuant to 19 U.S.C. § 1677f-1(c)(2), which provides:
If it is not practicable to make individual weighted average dumping margin
determinations [in investigations or administrative reviews] because of the large
number of exporters or producers involved in the investigation or review, the
administering authority may determine the weighted average dumping margins for
a reasonable number of exporters or producers by limiting its examination to—
(A) a sample of exporters, producers, or types of products that is statistically
valid based on the information available to the administering authority at
the time of selection, or
(B) exporters and producers accounting for the largest volume of the subject
merchandise from the exporting country that can be reasonably examined.
Court No. 18-00162 Page 9
April 1, 2016 to March 31, 2017. Id. Field 2.0 of the questionnaire instructed Goodluck to create
and report a control number, or “CONNUM,” for “‘each unique product’ reported in the sales and
cost data files,” using product characteristic-specific codes provided by Commerce.5 Id. at 109,
136.
When Commerce first provided the questionnaire to Goodluck on June 19, 2017,
Commerce had not yet determined how certain physical characteristics should be coded for the
purposes of constructing the 24-digit CONNUMs. See U.S. Department of Commerce CONNUM
Letter (July 6, 2017), P.R. 95 (“First CONNUM Letter”). On July 6, 2017, Commerce issued to
Goodluck the product characteristic codes via letter. Id. At that time, Goodluck’s Section B, C,
and D responses were due to Commerce on August 7, 2017. Id.
Field 2.5 required Goodluck to provide nominal wall thickness in millimeters for each tube
Goodluck sold in both its home market of India in its Section B questionnaire response and in the
United States in Section C. Id. at Attach. 1. Field 3.5 required Goodluck to apply a two-digit code
to the numeric wall thickness reported in Field 2.5 according to thickness ranges provided by
Commerce in its July 6, 2017 letter. Id. The two-digit codes reported in Field 3.5 were then
combined with codes for additional physical characteristics contained in other fields to create the
24-digit CONNUMs reported in Field 2.0. See ADD Questionnaire at 109, 136. Goodluck
reported weighted average CONNUM-specific costs and used CONNUM-specific expenses to
create the Section D database. Id. at 162.
5
Commerce instructed that “identical products should be assigned the same control number in
each record in every file in which the product is referenced (e.g., products with identical physical
characteristics reported in the foreign market sales file and the U.S. market sales file should have
the same control number.” ADD Questionnaire at 109, 136.
Court No. 18-00162 Page 10
On July 12, 2017, Petitioners submitted comments to Commerce contesting the
correspondence of certain product characteristics to the Commerce-devised codes. See
Petitioners’ CONNUM Comments (July 12, 2017), P.R. 97. Specifically, Petitioners asserted that
Commerce’s wall thickness ranges “were too broad to accurately capture cost and price differences
between products” and would undermine cost of production and product matching. Id. at 4–5.
Following Petitioners’ comments, Commerce sent Goodluck a Revised Product Characteristics
Letter on August 7, 2017. See U.S. Department of Commerce Revised Product Characteristics
Letter (Aug. 7, 2017), P.R. 153 (“Revised CONNUM Letter”). This letter modified and increased
the number of coding ranges for Goodluck to apply to the nominal wall thickness in Field 2.5 to
create the two-digit code reported in Field 3.5. See id. at Attach. 1; see also First CONNUM Letter
at Attach. 1. On August 25, 2017, Goodluck timely submitted its questionnaire responses for
Sections B, C, and D to Commerce, see Goodluck Sections BC&D Questionnaire Response (Aug.
25, 2017), P.R. 165–68, C.R. 62–131, reporting costs for 385 CONNUMs of subject merchandise,
see, e.g., id. at 788–95.
On September 20, 2017 and October 2, 2017, Commerce asked Goodluck for additional
supplemental information on Section D and Sections B and C, respectively. See U.S. Department
of Commerce Section D Supplemental Questionnaire to Goodluck (Sept. 20, 2017), P.R. 190, C.R.
168; see also U.S. Department of Commerce Section B-C Supplemental Questionnaire to
Goodluck (Oct. 2, 2017), P.R. 196, C.R. 170. Goodluck submitted its responses to the Section B
and C supplemental questionnaires on October 20 and 23, 2017. See Goodluck Supplemental
Section B-C Questionnaire Responses (Oct. 20, 2017), P.R. 220, C.R. 207–11; see also Goodluck
Supplemental Section B-C Questionnaire Responses (Additional Question) (Oct. 23, 2017), P.R.
222, C.R. 220–21. In these exchanges, neither Commerce nor Goodluck raised the manner in
Court No. 18-00162 Page 11
which Goodluck had reported nominal wall thickness in Field 2.5 or coded the wall thickness in
Field 3.5.
On November 22, 2017, Commerce issued its preliminary determination finding that
Goodluck’s dumping margin was de minimis. See Certain Cold-Drawn Mechanical Tubing of
Carbon and Alloy Steel From India: Preliminary Affirmative Determination of Sales at Less Than
Fair Value, in Part, Postponement of Final Determination, and Extension of Provisional Measures,
82 Fed. Reg. 55,567 (Nov. 22, 2017), P.R. 240. On November 20, 2017, Petitioners filed a
ministerial error allegation requesting Commerce to correct a clerical error in the coding of two
steel products sold in the home market. See Petitioners Ministerial Error Allegation (Nov. 20,
2017), P.R. 238, C.R. 238. On November 27, 2017, Goodluck filed a ministerial error letter asking
Commerce to correct this mistake. See Goodluck Ministerial Error Letter (Nov. 27, 2017), P.R.
249, C.R. 242. Commerce agreed to do so on January 3, 2018, and revised Goodluck’s preliminary
dumping margin to 4.2 percent. See U.S. Department of Commerce Amended Preliminary Margin
Calculation Memo (Jan. 3, 2018), P.R. 276, C.R. 380–84.
On November 22 and 27, 2017, Commerce sent its Sales Verification Agenda-Outline and
Cost Verification Agenda-Outline, respectively, to Goodluck, instructing:
[V]erification is not intended to be an opportunity for submission of new factual
information. New information will be accepted at verification only when: (1) the
need for that information was not evident previously; (2) the information makes
minor corrections to information already on the record; or (3) the information
corroborates, supports, or clarifies information on the record.
See U.S. Department of Commerce Sales Verification Agenda-Outline for Goodluck (Nov. 22,
2017), P.R. 244, C.R. 240; see also U.S. Department of Commerce Cost Verification Agenda-
Outline for Goodluck (Nov. 27, 2017), P.R. 246, C.R. 241.
Court No. 18-00162 Page 12
While preparing for verification, Goodluck discovered that it had reported incorrect codes
in Field 3.5 for 682 observations in its home market sales database provided in its Section B
questionnaire. See Goodluck Sales Verification Exhibits (Dec. 12, 2017), P.R. 269, C.R. 290–93.
The incorrect codes in Field 3.5 reflected Commerce’s coding instructions provided in the original
July 6, 2017 letter, rather than the updated coding guidance contained in Commerce’s August 7,
2017 letter. Id. at Exhibit 16.
On the first morning of Sales Verification on December 4, 2017, Goodluck informed
Commerce of its error and provided Commerce with a worksheet identifying the erroneous data
entries for Field 3.5, which presented the incorrectly reported two-digit product characteristic
codes side-by-side with the corrected codes. See Pl.’s Br. at Attach. One; see also Cold-Drawn
Mechanical Tubing of Carbon and Alloy Steel From India: Final Affirmative Determination of
Sales at Less than Fair Value (“Final Determination”), 83 Fed. Reg. 16,296 (Apr. 16, 2018), P.R.
317, accompanying Issues and Decision Memorandum at 6–8 (Apr. 9, 2018) (“IDM”), P.R. 311.
On the first morning of Cost Verification on December 11, 2017, Goodluck again directed
Commerce to the errors. IDM at 6–8. Commerce’s Cost Verification Report noted “[c]orrection
of these errors would result in changes to the physical characteristics of 24 CONNUMs and the
addition of 13 new CONNUMs” that were not included in Goodluck’s original Section D cost
database submission. See U.S. Department of Commerce Cost Verification Report (Jan. 18, 2018),
P.R. 278, C.R. 385.
On February 15, 2018, both Goodluck and Petitioners filed Case Briefs with Commerce.
See Goodluck Case Brief (Feb. 15, 2018), P.R. 288, C.R. 389; see also Petitioners’ Case Brief
(Feb. 15, 2018), P.R. 291, C.R. 392. Commerce rejected Goodluck’s case brief on February 20,
2018 for including untimely new factual information on Goodluck’s identified questionnaire
Court No. 18-00162 Page 13
errors. See U.S. Department of Commerce Letter re: Rejection of New Factual Information (Feb.
20, 2018), P.R. 295. Goodluck refiled a redacted case brief on February 21, 2018. See Goodluck
Redacted Case Brief (Feb. 21, 2018), P.R. 296, C.R. 406. Commerce rejected Goodluck’s redacted
case brief on March 7, 2018, see U.S. Department of Commerce Letter re: Rejection of New
Factual Information (Mar. 7, 2018), P.R. 302, and Goodluck’s corrected database on March 19,
2018 for containing untimely new factual information, see Letter from U.S. Department of
Commerce re: Rejection of New Factual Information (Mar. 19, 2018), P.R. 306.
On April 16, 2018, Commerce issued its final determination announcing a dumping margin
for Goodluck of 33.80 percent and a cash deposit rate of 33.70 percent. See Final Determination,
83 Fed. Reg. 16,296. In reaching the Final Determination, Commerce rejected all of the data
submitted by Goodluck in its questionnaires and instead relied on total AFA to calculate
Goodluck’s dumping margin. IDM at 10–14.
In determining Goodluck’s cash deposit rate of 33.70 percent, Commerce employed the
.10 percent export subsidy rate calculated for Tube Products of India, Ltd. (“TPI”), a separate
respondent in the investigation. See Goodluck Final Determination Ministerial Error Comments
(Apr. 17, 2018), P.R. 316. On April 17, 2018, Goodluck timely filed ministerial error comments
to challenge Commerce’s use of TPI’s export subsidy rate instead of 4.85 percent, the rate
calculated specifically for Goodluck in the accompanying countervailing duty investigation. Id.Commerce rejected Goodluck’s claim via memorandum on May 16, 2018. See U.S. Department
of Commerce Ministerial Error Allegation Memorandum (May 16, 2018), P.R. 318.
On July 10, 2018, Goodluck filed its complaint with this court appealing from Commerce’s
Final Determination. Compl., ECF No. 4. Goodluck filed its brief on December 14, 2018. Mot.
for J. on the Agency R. (“Pl.’s Br.”), ECF Nos. 21–22. Defendant the United States (“the
Court No. 18-00162 Page 14
Government) and Defendant-Intervenors filed their responses on April 24, 2019. Resp. to Mot.
for J. on the Agency R. (“Def.’s Br.”), ECF No. 27; Resp. in Opp’n to Mot. for J. on the Agency
R. (“Def.-Inters.’ Br.”), ECF No. 28. Goodluck filed its reply on May 28, 2019. Reply Br. (“Pl.’s
Reply”), ECF Nos. 30–31. The court heard oral argument on July 11, 2019. ECF No. 43.
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction over this dispute pursuant to 28 U.S.C. § 1581(c) and 19 U.S.C.
§ 1516a. The court may review final affirmative determinations in countervailing duty or
antidumping duty proceedings under 19 U.S.C. § 1561a(a)(2)(B)(i) and will hold unlawful those
agency determinations which are unsupported by substantial evidence on the record or otherwise
not in accordance with law under 19 U.S.C. § 1515a(b)(1)(B)(i).
DISCUSSION
Goodluck contends that Commerce’s determination was unsupported by substantial
evidence and contrary to law because (1) Commerce abused its discretion by rejecting Goodluck’s
correction submission at verification; (2) Commerce’s reliance on adverse facts available was not
warranted where there were no gaps in the record and where Goodluck did not significantly impede
the investigation; and (3) Commerce deviated from its typical practice when calculating
Goodluck’s export subsidy cash deposit without adequate explanation. The court concludes that
Commerce’s decision to reject Goodluck’s corrections was an abuse of discretion and remands to
Commerce to consider Goodluck’s corrected submission as well as to explain why it has departed
from its general practice for calculating export subsidy cash deposit offset rates in this case. The
court declines to reach Commerce’s reliance on facts otherwise available and adverse inferences
at this time.
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I. Commerce’s rejection of Goodluck’s updated data was not supported by substantial
evidence or in accordance with law.
The Government contends that Commerce properly rejected Goodluck’s corrections
submitted at verification because the errors Goodluck identified amounted to untimely new factual
information under 19 C.F.R. § 351.301(c)(5) and the verification instructions.6 Specifically,
according to the Government, the errors identified were so fundamental and systematic that they
compromised the integrity of the dataset as a whole.
The court finds this argument unpersuasive in light of existing case law and Commerce’s
own past practice. For example, in NTN Bearing Corp. v. United States, the Federal Circuit held
that Commerce abused its discretion when it refused to consider NTN’s corrections of errors in its
submissions because of the “untimely” submission of the corrective information. NTN, 74 F.3d
at 1208. When converting its sales data to the manner requested by Commerce, NTN entered some
improper code numbers. Id. “The effect of these mistakes was compounded because [Commerce]
used a sampling method to determine the extent of dumping, and the sample data contained the
clerical errors.” Id. at 1205. In concluding that Commerce abused its discretion by rejecting
NTN’s corrections, the Federal Circuit noted that “NTN responded in a timely manner to the
preliminary determination” when alerting Commerce to its errors, and that “[a] straightforward
mathematical adjustment was all that was required. Failure to make it resulted in the imposition
6
Commerce’s November 22, 2017 Sales and Costs Verification Agenda-Outline instructions:
[V]erification is not intended to be an opportunity for submission of new factual
information. New information will be accepted at verification only when: (1) the
need for that information was not evident previously; (2) the information makes
minor corrections to information already on the record; or (3) the information
corroborates, supports or clarifies information on the record.
See U.S. Department of Commerce Sales Verification Agenda-Outline for Goodluck (Nov. 22,
2017), P.R. 244, C.R. 240; see also U.S. Department of Commerce Cost Verification Agenda-
Outline for Goodluck (Nov. 27, 2017), P.R. 246, C.R. 241.
Court No. 18-00162 Page 16
of many millions of dollars in duties not justified under the statute” in light of the antidumping
laws’ remedial, and not punitive, purposes. Id. at 1208.
Applying NTN, this court in Fischer S.A. v. United States distinguished correctible
importer error entailing “a mistaken previous submission” to the record from new factual
information filling “[a] gap caused by failure to provide a questionnaire response or evidence
during verification.” 700 F. Supp. 2d at 1377. In that case, Fischer reported the wrong factor --
called a “Brix level” -- for Commerce to use in its formula for converting its United States and
home market sales to the same measurement system so Commerce could make an accurate
comparison. Id. at 1370–72. The Fischer court held that
On the authority of Timken and NTN Bearing, the Court holds that Commerce
abused its discretion in rejecting Fischer’s additional agreement pages as untimely.
Doing so was an abuse of discretion because (1) no finality concerns demanded
exclusion of the additional data at the preliminary results stage; (2) failure to
consider the additional pages to correct information already provided was a
violation of Commerce’s duty to determine Fischer’s dumping margin as accurately
as possible; (3) consideration of the additional data is necessary to ensure that the
remedial, non-punitive nature of the antidumping laws is not violated by imposition
of inaccurately high antidumping duties on Fischer despite the evidence that was
rejected; and (4) the recalculation of Fischer’s dumping margin could be
accomplished by simply replacing the actual Brix levels reported by Fischer in its
database with the standard Brix level of 11.8 degrees, should Commerce determine
upon remand that the sales agreement pages in fact substantiate that Brix levels
above 11.8 degrees did not increase the United States unit price of Fischer’s NFC.
Id. at 1376–77.
Here, like the respondents in NTN and Fischer, Goodluck sought to rectify reporting
mistakes contained in its previous submission to the record and not to fill gaps caused by an
omission or withholding of requested information from Commerce. Goodluck did not seek to
provide additional underlying production data -- which was correctly reported in its Section B and
C questionnaire -- but merely to remedy Goodluck’s misapplication of Commerce-devised codes
to the underlying data. As in NTN, Goodluck’s miscoding of nominal wall thickness in Field 3.5,
Court No. 18-00162 Page 17
which impacted two digits of a 24-digit CONNUM, could have been addressed through a
“straightforward mathematical adjustment” even though the “effect of these mistakes was
compounded” by how Commerce used the incorrect CONNUMs. See NTN, 74 F.3d at 1205;
Certain Hot-Rolled Steel Flat Products from the United Kingdom, 81 Fed. Reg. 53,436 (Aug. 12,
2016), accompanying Issues and Decision Memorandum at Comment 1 (noting that whether a
reporting error “affected many transactions and cascaded into other fields in [a] database” is not
dispositive on the error’s categorization).
The Government argues that accepting Goodluck’s submission would have “involve[d]
numerous corrections,” including “revising the weighted average CONNUM costs,” see IDM at 8,
which rendered it new factual information and a systematic error. However, whether the “effect
of these mistakes was compounded” by how Commerce used the incorrect CONNUMs does not
transform a minor correction into substantial new factual information. See NTN, 74 F.3d at 1205;
Certain Hot-Rolled Steel Flat Products from the United Kingdom, 81 Fed. Reg. 53,436 (Aug. 12,
2016), accompanying Issues and Decision Memorandum at Comment 1 (noting that whether a
reporting error “affected many transactions and cascaded into other fields in [a] database” is not
dispositive on the error’s categorization). As Commerce has previously stated -- and this court has
affirmed -- “the value of the errors as a percentage of total sales, or the number of instances of
errors” is not decisive. See The Coalition for the Preservation of American Brake Drum and Rotor
Aftermarket Manufacturers v. United States, 23 CIT 88, 93, 44 F. Supp. 2d 229, 236 (1999).
Commerce articulated a standard for delineating what constitutes a “substantial revision of [a]
response” in Certain Coated Paper Suitable for High Quality Print Graphics Using Sheet-Fed
Presses from the People’s Republic of China, 75 Fed. Reg. 59,217 (Sept. 27, 2010), accompanying
Issues and Decision Memorandum at Comment 10. In Certain Coated Paper, despite declaring
Court No. 18-00162 Page 18
that the impact of the respondent APP-China’s miscoding of a particular product characteristic7
“may not be minor,” Commerce nevertheless accepted the correction at verification as a minor
correction because it “d[id] not involve production data, or call into question [Factors of
Production8] and cost reconciliations.” Id. Like with APP-China, parties here are not contesting
the accuracy of Goodluck’s underlying production, input,9 or cost data. On costs specifically, in
the section entitled “Cost Reconciliations” of Commerce’s Cost Verification Report, Commerce
stated: “We reconciled the total [period of investigation (“POI”)] costs from the financial
statements to the total POI cost of units that produced [merchandise under consideration].” See
U.S. Department of Commerce Cost Verification Report at 8 (Jan. 18, 2018), P.R. 278, C.R. 385.
While it is true that some of the “weighted average CONNUM-specific costs” provided by
Goodluck were inaccurate, IDM at 12, this does not implicate the accuracy of Goodluck’s
underlying data, but rather was a cascading result of Goodluck’s coding error in field 3.5 of its
home market sales database. As with APP-China, the impact of Goodluck’s coding error “may
7
The correction at issue in Certain Coated Paper involved revising the “reporting of a particular
‘finish’ characteristic for several of APP-China’s products from characteristic ‘2’ – indicating a
finish between 65 and 74.99, to characteristic ‘1’ – indicating a finish of 75 or greater.” 75 Fed.
Reg. 59,217 (September 27, 2010), accompanying Issues and Decision Memorandum at Comment
10.
8
“Factors of production are the inputs consumed to produce the subject merchandise.” Nat’l Nail
Corp. v. United States, Slip Op. 19-71, 2019 WL 2537931, at *3 n.11 (CIT June 12, 2019).
9
The court notes that Commerce’s IDM stated: “[P]arties commented on Goodluck’s reporting of
nominal field lengths, steel grade, credit, insurance, indirect selling expenses, and inventory
carrying costs, U.S. destinations, date of sale, quality rejections, cost specificity, intra-company
transfers, and rebates.” However, Commerce did not reach these points in light of its decision to
rely on total AFA. IDM at 13. It is possible that these additional contentions could undermine the
accuracy of Goodluck’s reported production data, factors of production, and/or cost
reconciliations, and thereby render Goodluck’s submission a “substantial revision” under the
standard articulated in Certain Coated Paper. However, because Commerce did not fully explain
the implications of this statement, the court will not speculate.
Court No. 18-00162 Page 19
not [have] be[en] minor;” nevertheless, under the standard articulated in Certain Coated Paper,
correction of Goodluck’s errors should not require a “substantial revision of [its] response” given
the accuracy of Goodluck’s underlying data.
The Government further contended that accurately coded product characteristics are
indispensable to less than fair value investigations, and within product characteristics, accurately
coded wall thickness are paramount to cold-drawn mechanical tubing because misreporting wall
thickness dramatically skews costs. See Oral Argument, July 11, 2019, ECF No. 43. In the
Government’s estimation, errors in such crucial elements of the investigation cannot be considered
minor. As an initial matter, the court notes that Commerce did not specifically emphasize the
importance of wall thickness in its IDM. Rather, Commerce more generally asserted that
“[w]ithout accurate reporting of physical characteristics [generally] and matching CONNUMs in
Goodluck’s databases, Commerce does not have the primary components to perform an accurate,
reliable margin calculation for Goodluck” and stated that such “errors in a factor as fundamental
as the control number invalidate[] the allocations, matches, and calculations that follow.” IDM at
8–9.
Notwithstanding these contentions, Commerce has previously deemed errors in product
characteristic coding, wall thickness coding, and CONNUM creation to be minor errors at
verification, despite the impact of the errors on “allocations, matches, and calculations that
follow.” In a case similar to the one at bar, National Steel Corp. v. United States, Commerce found
errors committed by the respondent Hoogovens to be neither “systematic in nature” nor
“amount[ing] to a failure to provide information” -- despite the fact that, like Goodluck,
Hoogovens informed Commerce on the first day of verification that it had discovered inaccuracies
affecting “product characteristics submitted to Commerce,” the majority of which “involved the
Court No. 18-00162 Page 20
miscalculating of thickness [which] placed a number of sales in the wrong thickness group.” 18
CIT 1126, 1127, 870 F. Supp. 1130, 1132 (1994). As with Goodluck, Commerce found that
Hoogovens’ error affected home market sales CONNUMs, and correspondingly, “a significant
percentage of margin calculations” and “the model matching hierarchy.” Id. at 1133. Yet, unlike
with Goodluck, Commerce concluded that Hoogovens’ “errors themselves were minor” and
Hoogoven “did not omit data, but only provided inaccurate information.”10 Id. at 1134. While
each case turns on its own facts and circumstances, treating Goodluck’s strikingly similar error
differently is arbitrary.11
10
Given the case law that governed in 1994, Commerce decided not to accept Hoogovens’
corrections due to time constraints, despite finding that Hoogovens’ errors were minor. National
Steel, 870 F. Supp. at 1133. Such a determination by Commerce -- finding a respondent’s
computer conversion errors to be minor, and yet declining to correct them -- would soon be
precluded by the Federal Circuit case NTN Bearing Corp. v. United States in 1995, which held
that Commerce had abused its discretion in refusing to correct a respondent’s typographical errors
identified prior to the issuance of final results. 74 F.3d at 1207–08. All of that aside, the salient
point in this case comparison is that Commerce’s reasoning is inexplicably inconsistent:
Commerce declared Hoogovens’ CONNUM reporting errors to be neither “systematic” nor
“amount[ing] to a failure to provide information,” National Steel, 870 F. Supp. at 1134, and yet
found Goodluck’s strikingly similar error to be “systematic,” amounting to a provision of new
factual information.
11
When questioned about this difference, the Government responded in Oral Argument that
because Hoogovens’ mistakes resulted from a computer conversion error, it therefore qualified as
a clerical error (stemming from “inaccurate copying, duplication, or the like” under 19 C.F.R. §
351.224(f)); while Goodluck’s error “entailed more than copying or duplicating,” but properly
analyzing and following directions. Def.’s Br. at 21; Oral Argument, July 11, 2019, ECF No. 43;
IDM at 8. The court is unpersuaded. To produce the erroneously coded 682 home market sales
observations, Goodluck still copied and/or duplicated codes provided by Commerce, but simply
the wrong ones -- as evidenced by the fact that Goodluck’s errors reflected Commerce’s original
July 6, 2017 coding guidance instead of the revised guidance. See First CONNUM Letter at
Attach. 1; see also Revised CONNUM Letter.
Moreover, the Government acknowledged that had Goodluck simply mistyped
Commerce’s updated coding guidance in the process of revising the 682 home market sales
observations -- with the same cascading effects on CONNUMs and weighted average CONNUM-
specific costs -- such mistyping would be a correctible clerical error at the preliminary
investigation phase, but maintained that verification was too late to make such corrections.
However, this delineation in timing is inconsistent with NTN, which held that Commerce abused
Court No. 18-00162 Page 21
Finally, the Government contests Commerce’s assertion that “the rejected information was
available in the record” because “the code was ‘derived’ from the data reported in a separate field,
field 2.5,” pointing out that “nowhere in its case brief does Goodluck -- or can it -- point to a place
on the record in which this new information [the corrected CONNUM codes] can be found.” Def.’s
Br. at 25. The Government argues that the 13 unreported CONNUMs stemming from Goodluck’s
coding error necessarily dictate a finding of new factual information. The court is not convinced
by this argument. As discussed above, in NTN, some code numbers were incorrect,12 and yet the
its discretion in declining to correct typographical coding errors identified before Commerce had
issued its final results. 74 F.3d at 1209.
Additionally, the court is unconvinced by Commerce’s explanation for why this error
constitutes a failure to adhere to instructions. In its IDM at 8, Commerce states that “Goodluck
did not adhere to Commerce’s coding instructions, despite having the correct information on
hand.” The court notes that for any correctible error, the respondent necessarily has the correct
information on hand, but inadvertently reports the wrong information instead and thus seeks to
correct that mistake. In addition, as discussed, this is not a situation where a company was
unresponsive, provided fraudulent information, or clearly ignored Commerce’s instructions;
rather, Goodluck believed it had reported the correct information in accordance with Commerce’s
instructions -- and largely did so -- but made a mistake. It is thus unclear from Commerce’s
explanation what renders Goodluck’s error here a failure to follow instructions rather than a
correctible error.
12
The Government emphasizes the Federal Circuit’s use of the word ‘transposed’ to suggest that
Goodluck’s error was distinguishable from those at issue in NTN. However, as discussed in
footnote 11, the Government’s attempt to draw a divide between pure typographical errors and
Goodluck’s error is a distinction without a difference. Moreover, Federal Circuit progeny cases
establish that the holding of NTNis not limited to pure typographical, or even clerical, errors.
Papierfabrik August Koehler SE v. United States -- the most recent Federal Circuit treatment of
NTN Bearing -- stated:
We have held that Commerce abused its discretion in refusing to accept updated
data when there was plenty of time for Commerce to verify or consider it. NTN
Bearing Corp. v. United States, 74 F.3d 1204, 1207–8 (Fed. Cir. 1995) (requiring
correction of typing errors); Timken U.S. Corp. v. United States, 434 F.3d 1345,
1353 (Fed. Cir. 2006) (expanding the holding in NTN to “any type of importer
error—clerical, methodology, substantive, or one in judgment—…provided that
the importer seeks correction before Commerce issues its final results and
adequately proves the need for the requested corrections”).
843 F.3d at 1384.
Court No. 18-00162 Page 22
Federal Circuit found that Commerce abused its discretion by rejecting NTN’s corrections.
Moreover, as discussed above, cascading effects of errors -- such as the effect of CONNUMs here
-- do not transform a correctible error into new factual information.
The cases provided by Defendant-Intervenor and the Government involving untimely new
factual information -- as opposed to correctible importer error -- are easily distinguishable from
the instant case, and in fact further illuminate how Goodluck’s submission differs from
impermissible new factual information. For example, in Mukand Ltd. v. United States, the Federal
Circuit found that Commerce had permissibly refused the respondent’s untimely new information
because Commerce had asked Mukand “for size-specific cost information on five separate
occasions” and Mukand was only “suddenly willing and able to provide” the data after Commerce
had preliminarily resorted to adverse facts available. 767 F.3d at 1305. By contrast, Goodluck
demonstrated no such withholding of requested information from Commerce. Instead, Goodluck
complied with Commerce’s requests for the underlying data, but improperly applied product
characteristic codes, with respect to one of nine physical characteristics. Pl.’s Br. at 40. While
Mukand’s submission was clearly an attempt to fill “[a] gap caused by [Mukand’s] failure to
provide a questionnaire response,” and therefore constituted untimely new factual information, see
Fischer, 700 F. Supp. 2d at 1377, Goodluck’s submission was merely corrective information to
rectify reporting errors in its earlier submission.13
13
For its part, the Government cited to Stupp Corp. v. United States, 43 CIT __, 359 F. Supp. 3d
1293, 1301 (2019) for the proposition that manipulating existing record evidence to derive
corrected data necessarily constitutes new factual information. The court disagrees with this
interpretation as applied to the facts of this case. In Stupp, the respondent, SeAH, manipulated
existing record evidence to create two new databases, not for the purpose of correcting its own
coding error, but rather to rebut evidence placed on the record by Commerce. Such rebuttal
evidence falls expressly within the definition of “factual information” under 19 C.F.R.
§ 351.102(b)(21)(iv) (“evidence submitted by any interested party to rebut . . . evidence placed on
the record by the Department”), with corresponding regulatory deadlines. By contrast
Court No. 18-00162 Page 23
For these reasons, the court concludes that Goodluck’s submission was correctible
importer14 error and not untimely new factual information. Goodluck sought to rectify reporting
mistakes contained in its previous submission to the record, and not to supply additional underlying
data to fill gaps caused by an omission or withholding of requested information from Commerce.
While the Government nevertheless contended that Goodluck’s mistakes should be held to
“reach[] the threshold for new factual information pursuant to 19 C.F.R. § 351.301(c)(5),”
Commerce’s proffered reasons for doing so are either unsupported by case law or would entail
Commerce arbitrarily treating similar situations differently, Consolidated Bearings, 348 F.3d at1007 (citing RHP Bearings, 288 F.3d at 1347), amounting to an abuse of discretion. Finally, while
the Government contended that verification was simply too late in the investigation process to
correct Goodluck’s errors, as discussed above, the Federal Circuit has found correcting analogous
errors disclosed in a similar timeframe to be feasible and appropriate. See NTN, 74 F.3d at 1208(“Preliminary determinations are ‘preliminary’ precisely because they are subject to change. Thus,
the tension between finality and correctness simply did not exist at the time NTN requested
correction.”). In sum,
[D]raconian penalties are [not] appropriate for the making of clerical errors in order
to insure submission of proper data. Clerical errors are by their nature not errors in
judgment but merely inadvertencies. While the parties must exercise care in their
submissions, it is unreasonable to require perfection. [Commerce’s] refusal to
consider [plaintiff’s] request for correction of clerical errors in this case constituted
an abuse of discretion.
“Commerce’s regulations . . . do not provide a time frame within which [importer error] corrections
should be submitted.” Deacero, 353 F. Supp. at 1307.
14
In light of the court’s finding that Goodluck’s errors are minor, it need not address the issue as
to whether Commerce is only obligated to correct clerical errors versus methodological ones
beyond the discussion found in footnote 12.
Court No. 18-00162 Page 24
Id. at 1208–09. The court thus remands to Commerce to consider Goodluck’s corrected data
submission.15
II. Commerce’s did not adequately explain its export subsidy cash deposit offset
determination.
Commerce used the export subsidy rate of another respondent, TPI, to calculate
Goodluck’s export subsidy cash deposit offset, rather than the rate specifically calculated for
Goodluck in the companion CVD investigation. Goodluck argued that doing so was contrary to
Commerce’s general practice of adjusting antidumping margins -- even those calculated through
AFA -- by the company-specific export subsidy rate calculated in the companion CVD case, and
was otherwise unreasonable. Pl.’s Br. at 43. The Government counters that because 19 U.S.C. §
1677a(c)(1)(C)16 does not otherwise define how Commerce should calculate a cash deposit rate in
an investigation, “Commerce has discretion to establish a reasonable practice.” Def.’s Br. at 26.
15
As discussed above, Goodluck also challenged Commerce’s application of facts available and
adverse inferences. Although Commerce has discretion when applying facts available and adverse
inferences, “this discretion is not without limits. The appropriate rate ‘will depend upon the facts
of a particular case,’ cannot be ‘punitive, aberrational, or uncorroborated,’ includes ‘some built-in
increase’ to deter non-compliance, and . . . reflects the seriousness of the non-cooperating party’s
misconduct.” BMW of N. Am. LLC v. United States, 926 F.3d 1291, 1301 (Fed. Cir. 2019) (citing
Nan Ya Plastics Corp. v. United States, 810 F.3d 1333, 1347 (Fed. Cir. 2016) and F.lli De Cecco
Di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027, 1032 (Fed. Cir. 2000)).
However, because the court finds that Goodluck’s submission involved minor correctible importer
error, at this time, it need not address Commerce’s use of facts available, as the gap alleged by
Commerce may be resolved by Commerce’s consideration of Goodluck’s submission.
Additionally, because a proper facts available determination is a prerequisite for use of adverse
facts available, the court correspondingly does not reach Commerce’s reliance on adverse
inferences and particularly total AFA.
16
19 U.S.C. § 1677a(c)(1)(C) provides:
(c) Adjustments for export price and constructed export price
The price used to establish export price and constructed export price shall
be—
(1) increased by—
Court No. 18-00162 Page 25
Commerce indeed has discretion to establish a reasonable practice, but it must also explain
the reasons for deviating from that practice. See, e.g., Consolidated Bearings, 348 F.3d at 1007(holding that if “Commerce acted differently in this case than it has consistently acted in similar
circumstances without reasonable explanation, then Commerce’s actions will have been
arbitrary””). Here, Goodluck cited several determinations in which “Commerce adjusted
respondents’ [AFA] ADD margins . . . by the export subsidies the company received in the
companion CVD case.” Pl.’s Reply at 16–18. See, e.g., Carbazole Violet Pigment 23 from India:
Final Results of Antidumping Duty Administrative Review; 2015-2016, 83 Fed. Reg. 15,788,
15,789 (Apr. 12, 2018); Fine Denier Polyester Staple Fiber From India: Final Affirmative
Determination of Sales at Less Than Fair Value, 83 Fed. Reg. 24,737 (May 30, 2018). At Oral
Argument, the Government acknowledged that Fine Denier indeed represents Commerce’s most
common export subsidy cash deposit offset practice, see Oral Argument, July 11, 2019, ECF No.
43, but asserted that because Goodluck was uncooperative in the companion countervailing duty
investigation, the lowest possible export subsidy cash deposit offset adjustment was appropriate.17
Def.’s Br. at 27. On the other hand, Defendant-Intervenors offer a different rationale for
(C) the amount of any countervailing duty imposed on the
subject merchandise under part I of this subtitle to offset an
export subsidy
17
Goodluck contends that it fully cooperated in the companion countervailing duty investigation.
Pl.’s Reply at 16. The court notes that although AFA was applied in the companion countervailing
duty investigation, it was on the basis of the Government of India’s and another respondent’s
failure to cooperate. See Certain Cold-Drawn Mechanical Tubing of Carbon and Alloy Steel From
India: Final Affirmative Countervailing Duty Determination, 82 Fed. Reg. 58,172 (Dec. 11, 2017),
and accompanying Issues and Decision Memorandum at 27 (noting that, regarding the application
of an AFA rate to Goodluck, “[t]he CAFC has upheld the Department’s application of AFA to a
non-cooperating government even if it subjects a cooperating respondent to the ‘collateral effects’
of the adverse inference”).
Court No. 18-00162 Page 26
Commerce’s decision: that, “[c]ontrary to Goodluck’s claim that Commerce ‘inexplicably’ offset
Goodluck’s antidumping rate using the lowest export subsidy rate, the Department’s normal
practice is to offset an antidumping duty rate based on AFA with the lowest export subsidy rate in
the companion countervailing proceeding.” Def.-Inters.’ Br. at 34–35 (emphasis original).
Nowhere in the record does Commerce, itself, offer either explanation. In the Final
Determination, Commerce merely states that:
Commerce normally adjusts cash deposits for estimated antidumping duties by the
amount of export subsidies countervailed in a companion countervailing duty
(CVD) proceeding, when CVD provisional measures are in effect. Accordingly,
where Commerce made an affirmative determination for countervailable export
subsidies, Commerce has offset the estimated weighted- average dumping margin
by the appropriate CVD rate.
Final Determination, 83 Fed. Reg. at 16,297. In response to Goodluck’s ministerial error
allegations, Commerce reiterated this language and detailed that “Commerce deducted the lowest
calculated export subsidy rate determined for any party in the companion CVD investigation from
Goodluck’s antidumping margin, which was based on total adverse facts available, (AFA), for
antidumping cash deposit purposes, as intended.” U.S. Department of Commerce Ministerial Error
Allegation Memorandum, (May 16, 2018), P.R. 318. This statement describes what Commerce
did, but does not explain why Commerce used TPI’s rate from the companion CVD investigation
rather than the typical practice of using Goodluck’s. Thus, because Commerce has not provided a
sufficient explanation on the record for departing from its usual practice of using the companion
CVD rate in Goodluck’s case, the court remands to Commerce to reconsider or to provide a more
comprehensive explanation.
CONCLUSION
In sum, the court finds that Goodluck’s revised data submission should be categorized as a
correctible importer mistake as opposed to untimely new factual information and remands to
Court No. 18-00162 Page 27
Commerce for consideration of Goodluck’s corrected submission. Correspondingly, the court
does not reach whether Commerce’s reliance on facts otherwise available and adverse inferences
is supported by substantial evidence and in accordance with law at this time. The court further
remands to Commerce to better explain or reconsider its approach to calculating the export subsidy
cash deposit offset. Commerce shall file with this court and provide to the parties its remand
results within 120 days of the date of this order; thereafter, the parties shall have 30 days to submit
briefs addressing the revised final determination to the court and the parties shall have 15 days
thereafter to file reply briefs with the court.
SO ORDERED.
/s/ Gary S. Katzmann
Gary S. Katzmann, Judge
Dated: $XJXVW
New York, New York