Indian Exporter’s Errors Too Minor for Application of AFA, US Argues
The U.S. responded to a petitioner’s argument that a Commerce Department remand redetermination ignored “inconsistencies” found in a court-ordered on-site verification visit to an Indian forged steel fluid end block exporter (see 2403150041). It said that even the petitioner concedes that the department’s new result complies with the court’s remand opinion (Ellwood City Forge Co. v. U.S., CIT # 21-00007).
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Commerce can't apply adverse facts available without first finding that it must rely on facts otherwise available, the government said. That requires more than a “small gap in the record,” it said.
Commerce assigned partial AFA to exporter Bharat Forge Limited in response to Bharat’s minor errors, but the government held that total AFA would have been inappropriate. Those errors “did not extend to, or otherwise affect, the other information” Bharat gave Commerce and the department verified, it said. And the department hadn't found the errors undermined Bharat’s overall reliability, it said, as the “vast majority” of Bharat’s records were sound.
“[Petitioner] Ellwood’s argument that Commerce should have relied on total adverse facts available revolves entirely around the erroneous assumption that Commerce must proactively justify a decision not to rely on total adverse facts available when partial facts available with an adverse inference is otherwise appropriate,” it said.
Pointing to Ellwood’s arguments regarding Bharat’s mill certificates as an example, the U.S. said that Commerce was allowed to find that similar mill certificates were reliable even though errors had been found in one type.
It also said Commerce found only two errors in the coding of 15 reported CONNUMs, and one had just been submitted as a minor correction that the department verified was accurate. This likewise failed to support application of total AFA, it said.
In fact, Commerce had investigated more CONNUMs than those pre-selected for verification during its on-site visit, the government said, confirming that all errors were contained to those two CONNUMs in doing so.
“If, as Ellwood argues, Commerce had only reviewed the CONNUMs pre-selected prior to verification, and did not perform any additional review at verification, Commerce likely would not have verified Bharat’s minor correction that the parts cost had been misreported for the CONNUM in question,” it said.
Both of these arguments indicated that Ellwood believed that Commerce had to justify not using AFA, the opposite of the actual legal standard, the U.S. said.