Commerce Didn't Zero Ferrosilicon Exporter's Margin, US Argues
In its final determination in the antidumping duty investigation on ferrosilicon from Kazakhstan, the Commerce Department didn't unlawfully "zero" part of an exporter's weighted average dumping margin, the U.S. said Feb. 9 (YDD Corporation v. United States, CIT # 25-00100).
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
Kazakh exporter YDD argued in a November motion for judgment that Commerce had zeroed part of its margin without explanation, which went against Commerce’s established practice (see 2511100043). Relying on Loper Bright, it also claimed that the zeroing method wasn’t authorized by the Tariff Act.
“Zeroing” is the practice of setting an exporter’s sales with a negative dumping margin to zero. That means that they can’t offset any sales with a positive dumping margin, potentially resulting in a higher rate. The World Trade Organization ruled against the practice, but President Donald Trump reintroduced it when he returned to office for a second term (see 2501280067).
But Commerce didn’t zero some of YDD’s sales, the government claimed. Rather, it applied partial adverse facts available to some of the exporter’s sales, then calculated the rest using the average-to-average methodology. It was simply that the remaining negative margins “fully offset” the positive ones, for which the department reported a value of zero.
“Critically, zeroing concerns the exclusion of negative comparison results, not the reporting of a zero margin after offsets have been fully applied,” it said. “As discussed above, Commerce applied the A-A comparison methodology and provided full offsets for non-dumped comparisons, consistent with its post-WTO-compliance practice.”
In asking Commerce to instead report a negative total weighted average margin for those remaining non-AFA sales, YDD was essentially asking it to calculate an illegal negative dumping margin, the government said.
Commerce also was right to apply partial adverse facts available to the exporter, the U.S. said. During the investigation, a petitioner introduced evidence that YDD’s parent company and a U.S. customer for some of its sales shared an employee. YDD’s failure to previously disclose this information, and to provide rebuttal evidence before “one day before the statutory deadline,” justified the use of partial adverse facts available, the U.S. said.
It also didn’t matter that YDD alleged the sales in question were destined for Canada, not the U.S., the government said. YDD hadn’t been able to demonstrate those sales were actually delivered anywhere other than the U.S., it said.
Further, Commerce’s application of partial AFA was a “methodological choice and not a ministerial error,” the government said. But YDD filed a ministerial error allegation, even though it “did not identify a clerical or arithmetic error,” the government said.
And the U.S. said Commerce was right to use mandatory respondent Kazchrome’s shipment dates as its sales’ dates, as the department was operating within its discretion.