CIT Affirms Total AFA AD Rate for Otherwise Cooperative Company in India Stainless Steel Review
The Court of International Trade sustained the International Trade Administration’s application of total adverse facts available to Mukand, Ltd.’s antidumping duty rate, despite the company’s omission of only one piece of data, in the 2009-10 administrative review of stainless steel bar from India (A-533-810). Mukand had declined to provide information on cost differences between producing stainless steel bar of various sizes, but had otherwise fully cooperated. CIT agreed with the ITA in its application of total AFA, finding that the requested information was so important to calculating Mukand’s AD rate that the rate could not have been accurately calculated without it.
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In its initial questionnaire, the ITA requested size-specific production cost information. Mukand’s response showed the same costs for all sizes. Deciding that this was unlikely, the ITA again asked for the information, or at least an explanation as to why the costs would be the same. In its four supplemental questionnaire responses, Mukand reiterated that the costs did not differ because the costs for each size evened out when the entire production process was taken into account. The company also said there was no reasonable and verifiable way to estimate the costs.
The size-specific production costs were necessary to run cost of production tests to see if some sales data needed to be excluded, and to calculate the DIFMER adjustment to adjust Mukand’s domestic prices to ensure a fair comparison between sales of dissimilar merchandise in India and the U.S. In its preliminary results, the ITA assigned Mukand a total AFA AD rate of 21.02 percent. Although Mukand attempted to submit the data after the preliminary results, the ITA said that it was too late, and continued to assign the same rate in the final results.
Mukand argued the ITA should not have applied an adverse inference (and assign an AFA rate), but should have instead relied on facts available. But even if AFA was appropriate, the ITA should not have used AFA to determine Mukand’s entire rate, the company said.
The court found the ITA met all of the requirements for application of AFA -- the agency’s questionnaires clearly emphasized the importance of the data to the record. CIT noted that application of total AFA is unusual in cases where there is some cooperation, but found that Mukand’s rate could not have been reliably calculated without the missing data. Calculation of an accurate AD rate would have been impossible without the DIFMER adjustment or a cost of production analysis, the court said, and even resort to constructed value was impossible because of Mukand’s omission.
(Mukand, Ltd. v. United States, Slip Op. 13-41, dated 03/25/13 (public version 04/03/13), Judge Goldberg)
(Attorneys: Peter Koenig of Squire Sanders for plaintiff Mukand, Ltd.; David D’Alessandris for defendant U.S. government; Grace Kim of Kelley Drye for defendant-intervenor Carpenter Technology Corporation)