AD Petitioner Says 'Sloppy Recordkeeping' Not Justification for Failure to Offer Info in AD Review

Antidumping petitioner SSAB Enterprises argued that the Commerce Department was justified in using partial adverse facts available against respondent Salzgitter Flachstahl due to the company's failure to cooperate to the best of its ability. While Salzgitter said it couldn't submit certain requested information because one of its affiliated resellers, Salzgitter Mannesmann Stahlhandel, didn't keep that information, SSAB said that "Salzgitter cannot rely on" Salzgitter Mannesmann's "sloppy recordkeeping as a valid excuse to justify its failure to provide Commerce with the requested manufacturer information" (AG der Dillinger Huttenwerke v. United States, Fed. Cir. # 24-1219).

SSAB made three claims in its reply brief: that the statute required the use of facts otherwise available, that Salzgitter failed to meet the standard to cooperate to the "best of its ability" by failing to submit the requested information, and that the methodology Commerce used in picking the AFA rate in which it assigned the "highest non-aberrational net price" was lawful.

In the antidumping duty investigation on carbon and alloy steel cut-to-length plate from Germany, Commerce said Salzgitter failed to cooperate by not acting to the best of its ability to provide manufacturer information for around 28,000 downstream sales in Germany made by Salzgitter Mannesmann. The respondent sued, claiming that it acted to the best of its ability but couldn't submit the information because the reseller didn't keep the requested information (see 2402050029).

In response, SSAB said that the "investigatory record" shows that the information was in the reseller's possession, but because it was not "electronically recorded and readily available in" the company's accounting and mill certificate recording system, the company "opted not to undertake a more comprehensive search of" Salzgitter Mannesmann's records to provide the data. As a result, the agency was justified under 19 U.S.C. 1677e(a)(1), (a)(2)(A) and (a)(2)(B) in using partial facts otherwise available because the exporter "withheld and failed to timely submit the necessary manufacturer information."

The petitioner added that Salzgitter failed to meet the best of its ability standard since it "failed to comply with Commerce's requests" despite the fact that the reseller had the information and at verification showed its ability to identify the manufacturer of its German sales.

"There is no merit to Salzgitter’s assertions that providing the manufacturer information would have been unreasonably burdensome," the brief said. This burden is "self-imposed" because the reseller "chose not to maintain manufacturer information in the ordinary course of business in its electronic accounting system and mill certificate recording system."

The governing standard "does not condone inadequate record keeping," the petitioner said. Commerce clearly explained that this is the "type of basic information that any respondent should reasonably anticipate it would need to provide to its customers at any given time," the brief said. Salzgitter "failed to do the maximum it could do to comply with" Commerce's requests.

The Court of International Trade initially remanded the case so Commerce could bring its AFA calculation methodology in line with the agency's methodology it used in the Dillinger France v. U.S. lawsuit. In that case, the agency "relied on the prices as reported for the respondent's sales with missing manufacturer information." Commerce explained on remand that using this methodology would not fit with the purpose of AFA, which is to induce cooperation since it would lead to a zero percent rate for Salzgitter and its exclusion from the AD order.

The petitioner said that while this methodology may have worked for the other respondent in the present investigation that didn't provide manufacturer information for an "insignificant number of downstream home market sales," it doesn't work for Salzgitter since it failed to give information for around 28,000 downstream home market sales. SSAB echoed Commerce's remand reasoning in saying that using the Dillinger France method "would frustrate the AFA statute's goal of inducing cooperation by ensuring that the non-cooperative respondent does not receive a more favorable AFA rate than it would have received had it fully cooperated."