US, AD Petitioner Defend Use of Partial AFA for Exporter's Failure to Submit Manufacturer Info in AD Investigation
The U.S. and petitioner Nucor Corp. defended the Commerce Department's use of partial adverse facts available against exporter Salzgitter Flachstahl in the antidumping duty investigation on carbon and alloy steel cut-to-length plate from Germany, in a pair of reply briefs at the U.S. Court of Appeals for the Federal Circuit. The government said the steel company said Commerce properly identified a gap in the record stemming from Salzgitter's failure to submit manufacturer information for 28,000 of its sales from an affiliated reseller, Salzgitter Mannesmann Stahlhandel (AG der Dillinger Huttenwerke v. U.S., Fed. Cir. # 24-1219).
The U.S. said the exporter could "reasonably anticipate that" this was information it "would need to provide to Commerce." It said that because Salzgitter had access to the information but "nevertheless chose not to identify all" of its resellers' sales of Salzgitter-made merchandise, it was "appropriate" to use an adverse inference when picking from the available facts.
And while the agency used the "highest nonaberrational price for all 28,000 sales missing manufacturer information," Salzgitter "never proposed an alternative price for Commerce to select as facts available," the brief said.
Nucor said the use of AFA here is supported by CAFC precedent in Nippon Steel v. U.S., which found that respondents "must do the maximum they are able to do" to avoid AFA, including "maintaining a full and complete record." Salzgitter failed to do that here -- it didn't "provide information that was requested by Commerce despite the fact that the information was in its possession and was information that it could reasonably expect would be needed."
The claims build off arguments also made by petitioner SSAB Enterprises (see 2404250049). In its brief, SSAB said Salzgitter can't use "sloppy recordkeeping as a valid excuse to justify its failure to provide Commerce with the requested manufacturer information." In its lawsuit, Salzgitter said it acted to the best of its ability but couldn't supply the requested information, saying it would have been "unreasonably burdensome" to do so.
The government said this "ignores the months that Salzgitter had to request that" its reseller "access the information for these sales or propose an alternative approach to Commerce, beginning with the initial questionnaire." The respondent doesn't dispute that it had "or had access to" the information because the reseller "has PDFs of that information." Regardless of what Salzgitter considers a "reasonable burden," the company "did not do the maximum it was able to do to educate Commerce regarding its ability to access the 28,000 missing manufacturers' information in the Separate Database and it 'was thus reasonable'" to expect more responsive answers.
Nucor echoed this, saying Salzgitter "acknowledges that, for at least some sales, it would have been able to identify the manufacturer but for inadequate record keeping practices." This defense "does not serve as a shield to the application of AFA," the brief said, citing to Nippon Steel.