Commerce Must Adjust for All Rebates in AD Rate Calculations, Says CIT
Commerce is not allowed to pick and choose the circumstances under which it accounts for rebates when calculating antidumping duty rates, said the Court of International Trade as it remanded the 2008-09 administrative review on lightweight thermal paper from Germany. Papierfabrik August Koehler’s AD rate had risen from zero to 3.77% when Commerce decided to disregard the rebates because Koehler’s customers may not have known they’d be getting the payments at the time of purchase. But CIT said the move was illegal, because Commerce’s regulations say the agency must adjust for all rebates, not just some.
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The rebates in question had been provided by Koehler to its German customers every month. Commerce is required under 19 CFR 351.401(c) to reduce home market and export prices of foreign companies when it calculates their AD rates. In this case, the rebates had the effect of lowering Koehler’s German market prices, which made the company’s U.S. prices seem comparatively more expensive. That has the effect of decreasing the appearance of underselling (dumping) and lowering a company’s AD duty rate. In this case, Koehler’s preliminary rate from the review was zero percent.
But Commerce had changed tack in its final results. It disregarded the monthly rebates, finding that Koehler’s German customers didn’t know about the rebates when they bought paper from Koehler. That had the opposite effect, making Koehler’s German sales prices seem higher and increasing the company’s AD duty rate. Koehler’s rate rose to 3.77% in the final results.
Commerce pointed to a paragraph in the explanation accompanying the AD duty regulations to justify its decision. If companies could provide rebates whenever they wanted, they could use those rebates to tamper with their AD duty rates by using them to counterbalance dumping, Commerce said.
However, the trade court found Commerce’s regulations clear in requiring Commerce to account for all rebates, regardless of circumstances. In Section 351.401(c), the regulations say Commerce “will” use a price that is “net of any price adjustment,” including rebates, discounts, and post-sale price adjustments, when it calculates home market prices or U.S. prices for the purposes of AD duty calculations. Nothing in the regulations says that the adjustments should only happen if the customer knew of the price adjustment before the sale.
And in the explanatory paragraph Commerce cited to justify its decision to exclude the rebate, CIT noted an important omission from Commerce’s arguments. “The Department has not adopted this suggestion at this time,” Commerce had said in response to a request that it set a requirement that companies know about the rebate at the time of sale. The explanation had come out with the regulations in 1997. “We will consider adding other regulatory refinements at a later date,” Commerce had said. It never did.
(Papierfabrik August Koehler AG v. U.S., Slip Op. 14-31, dated 03/25/14, Judge Stanceu)