CAFC Presses Respondent, US on Whether Commerce Imposed 'Unreasonable Burden' in AD Case
Judges at the U.S. Court of Appeals for the Federal Circuit pressed both respondent Salzgitter Flachstahl and the U.S. in an antidumping duty case regarding the use of partial adverse facts available against Salzgitter for its failure to provide manufacturer information for around 28,000 of its downstream sales made in Germany by one of its affiliates (AG der Dillinger Huttenwerke v. United States, Fed. Cir. # 24-1219).
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During oral argument on May 7, Judge Jimmie Reyna pressed Ron Kendler, counsel for Salzgitter, on why the company didn't submit a portion of the 28,000 sales as an alternative to submitting all the sales. Meanwhile, Judge Timothy Dyk pressed DOJ attorney Kara Westercamp on whether it was reasonable to find that Salzgitter didn't respond to the best of its ability in light of the "unreasonable burden" the request for the 28,000 sales placed on the respondent.
The Court of International Trade sustained the use of partial AFA against Salzgitter in the AD investigation on cut-to-length carbon and alloy steel plate from Germany due to the company's failure to report the manufacturer for a certain amount of its 28,000 sales (see 2306230054). The parties agreed that submitting the manufacturer information would have taken the respondent nearly 5,000 hours, since the information had to be manually retrieved for each individual sale.
During the investigation, Salzgitter offered three alternatives to reporting the manufacturing information. The alternatives either treated none of the sales as Salzgitter-made plate, treated all the sales as Salzgitter-made plate or treated only a portion of each sale as Salzgitter-made plate, and each alternative led to a 0% dumping margin.
At oral argument, Reyna noted that AD proceedings are "all about data" and, in this case, it "seems like" Salzgitter was "denying Commerce the opportunity" to "work with that data." Meanwhile, Dyk centered on the statute, which says Commerce has to consider an "unreasonable burden" created by its demands for information. Reyna continued to press Kendler about why Salzgitter didn't just report a sample of the 28,000 sales. Dyk agreed with this notion, telling Kendler that he "can't argue that a sample of 500 sales would have been an unreasonable burden."
To this, Kendler said at no point did Commerce say a sample should be provided, adding that no party has suggested that Salzgitter's third proposed alternative to providing the manufacturer information for all the sales was unreasonable.
Westercamp argued that the burden is on Salzgitter to supply an alternative to information requested by the agency that it can't provide. Dyk repeatedly questioned the DOJ attorney on this point, emphasizing that the respondent did submit alternatives. To this, Westercamp said Salzgitter didn't submit its alternatives early enough in the investigation, since it only came at verification, which is "nearly at the end" of the proceeding.
Reyna asked Westercamp what would have happened if Salzgitter had supplied a sample of the 28,000 sales. Westercamp replied that Commerce "likely" would have found this to be a "reasonable alternative."
Jeffrey Gerrish, counsel for petitioner SSAB Enterprises, also argued that Commerce did in fact address whether the burden associated with the production of the manufacturer information for the 28,000 sales was unreasonable, and that the use of AFA was reasonable due to Salzgitter's "sloppy recordkeeping." Gerrish said the respondent was "all over the place" in telling the agency how long it would take to produce the information. He added that the statute requires the respondent to provide an alternative way to report information it can't provide.
In rebuttal, Kendler said it's "not true" that Salzgitter was all over the place regarding how long it would take to provide the requested information or that the respondent had sloppy recordkeeping. Salzgitter did maintain the information Commerce requested, but the problem was that the information couldn't be conveyed electronically in less than 5,000 hours, Kendler said. "It was unreasonable" for the agency "to expect anything more forthcoming than what Salzgitter did," since it used the "systems it had in the ordinary course of business," he said.