AFA Not Warranted in Antidumping Case Due to COVID-Related Reporting Failures, Commerce Says
The Commerce Department says total adverse facts available is not warranted in an antidumping duty investigation on silicon metal from Malaysia since mandatory respondent PMB Silicon did not actively withhold information, the agency said in a June 16 memorandum issued alongside its final affirmative determination in the investigation.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
The petitioners in the case, Globe Specialty Metals and Mississippi Silicon, alleged that information regarding PMB Silicon's reported costs was either manipulated or non-final and warranted a total AFA penalty. In particular, the petitioners argued that PMB Silicon compiled its cost data in "unnecessary, theoretical allocations when it had the data to report costs based on its actual production experience." The pair also accused PMB Silicon of "slow-walking" development of its cost reporting methodology, which slowed the ability of Commerce to gauge the accuracy of the submitted information.
Since one of PMB Silicon's production reports at issue was a direct screen print document, there cannot be a technical error in the document's transmission, as PMB Silicon suggested, the petitioners said. This could mean the evidence was manipulated, their comments said. PMB Silicon countered by saying the production report was a draft and not the final version.
Commerce said that while there were inconsistencies in PMB Silicon's data, these were cleared up by subsequent questionnaires, leading to the agency's finding that no manipulation of this data occurred. "Throughout this proceeding, PMB Silicon provided detailed explanations for the initial inconsistencies identified by Commerce and for its production data collection processes, both in the normal course of business and during the general lockdown in Malaysia related to COVID-19," Commerce said.
As a result of the COVID-related lockdowns, PMB Silicon had to rely on individuals it otherwise would not have to retrieve data for its production reports, the company said. The metal exporter does not have a companywide automated production system, so it requires this level of manual input. Due to this manual system and lack of the preferred personnel, "employees who collected the production data mistakenly transmitted a draft version of the daily production report." So, there can be slight variations in the reports received by PMB Silicon, Commerce said.
"More importantly," the agency said, "Commerce selected and reviewed PMB Silicon’s daily production reports for approximately 180 days and did not find any inconsistenc[i]es." Due to this and PMB Silicon's compliance with all antidumping proceedings, Commerce disagreed with the petitioners and found that no manipulation occurred and that the production reports were "sufficiently reliable for purposes of calculating an accurate margin." Commerce also decided to pass on applying total AFA to PMB Silicon's reported sales, finding that the company "provided sufficient documentation to support its position that these were, in fact, home market sales."