CIT Sends Back AD Review for Unjustly Rejecting Comments on Ministerial Errors as Untimely
The Court of International Trade in a Jan. 18 opinion sent back an antidumping review over the Commerce Department's decision to reject AD petitioner Nucor Tubular's ministerial error comments as untimely. Judge Jennifer Choe-Groves said the exception to the requirement that comments be timely filed applies in this case since Commerce's "unintentional errors became apparent only in the Final Results" of the AD review. Since Nucor should have been allowed to submit its comments on the ministerial error, the court remanded the review to consider the error "and respond accordingly," the judge said.
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"We are pleased with the Court’s opinion and believe that if Commerce follows the Court’s reasoning and accepts our ministerial error comments and corrects the errors identified, the Mexican respondents’ antidumping margins will be above de minimus," Robert DeFrancesco, counsel for Nucor, told us.
The case concerns an administrative review of the antidumping duty order on heavy walled rectangular welded carbon steel pipes and tubes from Mexico covering entries in 2019, wherein Commerce tapped Maquilacero and Productos Laminados de Monterrey (Prolamsa) as the mandatory respondents. The agency calculated Maquilacero's normal value by using programming language that relied on numbers "unrelated to Maquilacero's costs or questionnaire responses for a subset of the Maquilacero's sales."
Nucor alerted Commerce about this error to no avail, with the agency dismissing the grievance as untimely. Commerce even acknowledged that it incorrectly assigned sequential values, as opposed to using Maquilacero's reported quarterly hot-rolled coil price data in certain cases in the review. But Commerce said that the cost information was "unnecessary to the ultimate calculation," removing the cost language from the program. "However, Commerce did not remove other interconnected programming, thereby exacerbating the error in the preliminary determination," Nucor said in its complaint after filing suit at the trade court (see 2109290027).
Prolamsa's calculations also had errors. Commerce originally calculated Prolamsa's home market adjustments in Mexican pesos. The agency then revised the respondent's home market prices and converted them, along with adjustments and expenses, to U.S. dollars using different formulas than those in the preliminary results. These revisions had errors that did not exist in the preliminary results, the complaint said. Commerce said Nucor's ministerial error allegations for both Maquilacero and Prolamsa calculations were untimely.
CIT ruled that the comments regarding Maquilacero qualified for an exception to the need to be timely filed, which excludes comments should they address an error in the final results that was not present in the preliminary results. "Because the unintentional errors became apparent only in the Final Results, the Court concludes that the exception applies here, and Nucor was permitted to address new ministerial errors that arose after Commerce completed its constructed cost calculations for normal value in the Final Results," the opinion said.
Choe-Groves ruled that the same was true for the ministerial comments regarding the errors in Prolamsa's rate. "Remand of Commerce’s determination regarding Prolamsa will allow Commerce to reassess its home market price calculations and correct any potential errors in its currency conversions," the judge said. "Commerce has an obligation to calculate dumping margins as accurately as possible. The Court concludes that Defendant has provided a compelling justification for its remand request, the need for finality does not outweigh the agency’s justification, and the scope of Defendant’s remand request is appropriate."
(Nucor Tubular Products v. U.S., Slip Op. 23-6, CIT #21-00543, dated 01/18/23, Judge Jennifer Choe-Groves. Attorneys: Alan Price of Wiley Rein for Nucor; Claudia Burke for defendant U.S. government; David Bond of White & Case for defendant-intervenors Productos Laminados de Monterrey and Prolamsa; Diana Quaia of ArentFox for defendant-intervenor Maquilacero).