Commerce Can't Point to Any Information Exporter Actually Withheld, AD Respondent Argues
The Commerce Department did not "sufficiently" identify withheld information to justify of its use of adverse facts available in an antidumping duty case, plaintiff Kumar Industries argued in a Nov. 18 reply brief at the Court of International Trade. Commerce failed to identify "a single document that was actually missing" to justify the use of AFA and also chose not to verify the information submitted by Kumar despite ample opportunity to do so, the brief said (Kumar Industries v. United States, CIT #21-00622).
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The case concerns the 2018-20 administrative review of the antidumping duty order on glycine from India. During the review, Commerce hit Kumar with AFA for its alleged withholding of information about potential affiliation between it and two unnamed companies identified in the brief as companies A and B. The agency believed that there was affiliation between Kumar and the two companies since both were owned by former Kumar partners. The respondent said that the partners have since sold their interests in the companies and no longer exert any control over their business operations.
Commerce ultimately found that Kumar's alleged failure to cooperate with the request for its affiliation status with the two companies meant the agency was unable to find whether the respondent's home market sales to Company A were sales to an affiliate, which would require data for downstream sales, and whether its purchases of major inputs from Company B were purchases from an affiliated supplier that would warrant the use of the major input rule and a cost adjustment.
In its motion for judgment, Kumar said that at no point did Commerce ask it to report a home market buyer's resales of its purchases as home market sales or report an input supplier's own input purchases of its sales to Kumar in the AD review responses (see 2207280055). In response, the U.S. focused on Kumar's failure to disclose its partner's history with the unnamed companies until after multiple questionnaires were issued (see 2209280060). Even when Kumar did disclose this history, it gave "conflicting information" over whether Kumar continued to get income from the unnamed companies, the U.S. said.
In its reply, Kumar said that Commerce did not point to a single document that was actually missing to justify the use of AFA. The respondent argued that Kumar consistently said that it was not affiliated with companies A and B and provided information over the nature of the previous affiliations. "In other words, Kumar’s position that it was not affiliated with Companies A and B during the period of review has no bearing on whether the company withheld information from Commerce during the administrative review, and Kumar certainly could not have impeded the review by taking this position on a legal question," the brief said.
Commerce cannot declare that a respondent withheld information it actually provided that Commerce then used to reach its ultimate decision, Kumar said. "In other words, Commerce cannot assert on the one hand that Kumar withheld information pertaining to whether its partner received income from Companies A and B, and on the other hand, use information (i.e. the tax return) to find that there was evidence the partner received income," the brief said. "It is simply illogical to penalize a company for withholding or refusing to give information, and then use the information that was submitted by the respondent to support a finding that it withheld the information. The Court should not countenance Commerce’s circular and unsupported reasoning."