Tires Petitioner Seeks AFA for Reversal on Information Availability After First Questionnaire
The Commerce Department should apply adverse facts available to an exporter that initially responded that certain sales data was unavailable, but when subsequently pressed provided the information to Commerce, an attorney said during a hearing before Commerce related to an antidumping duty investigation on passenger vehicle and light truck tires from South Korea.
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“Nexen's response to Commerce reflects a repeated problem we see Commerce facing with respondents seeking to game their responses by withholding information in the first response knowing that the statute requires Commerce to provide an opportunity to cure response deficiencies and counting on only having to submit whatever information Commerce continues to seek in supplemental questionnaires,” said Nicholas Birch of Schagrin Associates, who represents petitioners in the case, according to a transcript of the May 6 hearing posted on May 13.
According to Birch, when Nexen, an Indian exporter, was asked for information about its U.S. sample sales in the initial questionnaire, “it said directly that data was not available because it didn't track it.” But when pressed, including during a verification, “it turns out that Nexen does track that information in detail,” Birch said.
“We believe Commerce should reject this kind of gamesmanship and reject the late submission of information that clearly should have been included in a first response,” Birch said. “Commerce should hold Nexen to that first response with its now clear results and a failure of Nexen to cooperate to the best of its ability from the start, and so as we argue should apply AFA on Nexen's sample sales,” he said.
“That will directly contribute to a main purpose of applying AFA, which is to induce future cooperation from respondents, reinforcing they're required to submit the data that Commerce seeks in the first instance rather than hoping to escape providing possibly unfavorable data if Commerce does not discover that data in fact exists,” Birch said.
In his rebuttal, counsel for Nexen, William Moran of White & Case, said applying AFA in this case would be unprecedented. “The basis of this argument that Petitioner has presented is a bit unusual, that there is no claim that there is any missing information, so Petitioners would have the Department apply some form of facts available without pointing to any information that's not available on the record,” Moran said. “Petitioners would have the Department create a new standard, one that's never been affirmed in the courts, that an applicant can have AFA despite the fact that the information requested is on record, and despite the fact that the respondent complied with verification and that there were no issues found at the verification,” he said.
And the effect of sample sales was in any case negligible,” Moran said. “In a U.S. database with nearly 6.5 million sales, there's an objection to a little over 100 sales, 100 tires that went for free to U.S. customers,” Moran said. “It amounts to nothing more than a rounding error. In fact, as we do put in our rebuttal brief, we're discussing 0.002 percent of Nexen's sales to the United States, and that's not a lot of sales and hardly warrants the application of AFA.”
Commerce is scheduled to announce its final determination in the case on May 22.