Mukand, Ltd. v. United States

Slip Op. 13-
UNITED STATES COURT OF INTERNATIONAL TRADE
OPINION AND ORDER
[Plaintiff’s Motion for Judgment on the Agency Record under USCIT Rule 56.2 is denied.]
Dated: March 25, 2013
Peter J. Koenig, Squire Sanders (US) LLP, of Washington, DC, for plaintiff.
David D’Alessandris, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, for defendant. With him on the brief were Stuart F.
Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M.
McCarthy, Assistant Director. Of counsel on the brief was Melissa M. Brewer, Office of the
Chief Counsel for Import Administration, U.S. Department of Commerce, of Washington, DC.
Grace W. Kim, Kelley Drye & Warren LLP, of Washington, DC, for defendant-intervenor.
Goldberg, Senior Judge: Plaintiff Mukand Ltd. (“Mukand”) contests the final results of
the U.S. Department of Commerce’s (the “Department” or “Commerce”) administrative review
of the antidumping duty order on Stainless Steel Bar from India. Stainless Steel Bar from India,
76 Fed. Reg. 56,401 (Dep’t Commerce Sept. 13, 2011) (final results of antidumping duty
administrative review and partial order revocation) (“Final Results”). Mukand asserts that the
MUKAND, LTD.,
Plaintiff,
v.
UNITED STATES,
Defendant,
and
CARPENTER TECHNOLOGY
CORPORATION,
Defendant-Intervenor.
Before: Richard W. Goldberg, Senior Judge
Court No. 11-00401
PUBLIC VERSION
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Department erred in applying adverse facts available (“AFA”) when calculating Mukand’s
dumping margin for the period of review. Alternatively, Mukand argues that even if resort to
AFA was appropriate, the Department nonetheless erred in employing “total AFA” instead of
“partial AFA” to arrive at the dumping margin. For the reasons set forth below, the court denies
Mukand’s Rule 56.2 Motion for Judgment on the Agency Record and sustains Commerce’s
determination to apply total AFA.
FACTUAL BACKGROUND
On March 30, 2010, the Department initiated an administrative review of the
antidumping duty order on Stainless Steel Bar from India, pursuant to the request of domestic
interested parties. Initiation of Antidumping and Countervailing Duty Administrative Reviews
and Request for Revocation in Part, 75 Fed. Reg. 15,679 (Dep’t Commerce Mar. 30, 2010). As
part of that review, the Department issued a series of questionnaires to Mukand wherein it sought
information designed to assist the Department in calculating Mukand’s dumping margin. Most
relevant to this case, Commerce requested that Mukand report the costs attributable to producing
various sizes of stainless steel bar.1 According to Commerce, this information was necessary to
accurately perform its sales-below-cost test, to calculate the difference in merchandise
(“DIFMER”) adjustment, and potentially to arrive at a constructed value. See, e.g., Issues &
Decision Memorandum, A-533-810 (Aug. 31, 2011), at 26 (“I&D Mem.”).
Commerce first requested size-specific cost information in its initial questionnaire to
Mukand. Admin. R. Pub. Doc. (“P.R.”) 54, at D-25. Upon receipt of Mukand’s response,
Commerce noted that Mukand assigned the same production costs across all product sizes.
Informing Mukand that it did “not consider one broad based average cost to be reasonable for
1 In this case, size was one of the six product characteristics making up the CONNUM. P.R. 5, at 3 (“AFA Mem.”).
The remaining characteristics were general type of finish, grade, re-melting, type of final finish, and shape. Id.
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purposes of” its calculations, Commerce stated that it was “imperative” that Mukand furnish
unique costs regardless of whether it tracked such costs in its normal accounting records. P.R.
108, at 3. Commerce alternatively afforded Mukand the opportunity to “quantify . . . and
explain” any reasons the company may have for believing the size-based cost differential to be
insignificant. Id.
In its response, Mukand declined to provide unique cost information and instead
attempted to explain why its costs did not vary from one product size to the other. Id. at 3–4.
Specifically, Mukand briefly responded that where product grade and type of finishing operation
are the same, direct material costs do not vary with size. Id. In a subsequent questionnaire,
Commerce reiterated its need either for cost estimates or a more thorough narrative quantifying
and explaining Mukand’s belief that size-based cost differences were insignificant. P.R. 145, at
8–9. Again, Mukand asserted that when all other physical characteristics remain the same, costs
do not vary with size. Id. at 9.
Commerce attempted to elicit the information a fourth time, noting that it “would appear
as though large sizes would require less processing and would incur less processing than smaller
sizes.” P.R. 172, at 1. Mukand conceded that “[t]heoretically,” there could be a cost difference,
but that it was insignificant because smaller sizes could be processed at faster speeds than larger
sizes. Id. at 2. However, Mukand did not provide any quantifiable data to support its assertion
because it believed the costs associated with those calculations were greater than the benefit. Id.
Unsatisfied with Mukand’s narrative, Commerce sought the information a final time
before releasing its preliminary results. In its supplemental questionnaire, Commerce identified
and elaborated on several flaws that it perceived in Mukand’s response. Specifically, Commerce
sought information with respect to two factors, rolling time and weight, that it believed would
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impact size-based costs.2 P.R. 206, at 1–5. To assist Mukand in explaining why those factors
did not significantly affect costs, Commerce asked a series of targeted and specific questions. Id.
The Department also instructed Mukand to contact them if their request was unclear, if Mukand
was unable to supply the information, or if the Department was otherwise mischaracterizing
Mukand’s production processes. Id. 	Commerce made clear that failure to cooperate with its
request could result in reliance on facts available. Id. at 5.
Mukand did not contact the Department, but again attempted to explain its basis for not
reporting size-specific costs. Mukand acknowledged that there was likely a cost difference
among sizes, however it “fe[lt] from experience” that the difference was insignificant and that, in
any event, there was no “reasonable and verifiable way” to estimate the costs. Id. at 2–4.
Mukand apparently thought that Commerce’s reliance on rolling time and weight ignored the
company’s broader production process. Essentially, Mukand maintained that size-based
production costs varied depending on the processing stage. For example, while smaller bars
incurred greater production costs than larger bars at the hot rolling stage, the opposite was true of
production costs at the heat treating stage. Id. The result of the different production processes,
Mukand maintained, was that variable size-based costs were virtually the same on the aggregate.
Id. Nonetheless, Mukand provided no concrete data in support of this argument, believing there
existed no “reasonable and verifiable way” to isolate the costs. Id. at 2–4.
Ultimately finding Mukand’s collective responses deficient, Commerce preliminarily
resorted to AFA to calculate Mukand’s dumping margin. Stainless Steel Bar from India, 76 Fed.
Reg. 12,044, 12,047 (Dep’t Commerce Mar. 4, 2011) (preliminary results). In comments on the
2 With respect to rolling time, Commerce believed that smaller bars would have undergone more rolling and, thus,
would be associated with a longer rolling time and an enhanced rolling cost. With respect to weight, Commerce
noted that smaller, lighter bars should have a higher per kilogram rolling cost than larger, heavier ones. Therefore,
weight would also presumably impact size-based costs. P.R. 206, at 2.
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preliminary results, Mukand argued that it materially complied with Commerce’s requests since
there was no reasonable and verifiable method of reporting size-specific production costs. P.R.
241, at 5–6. However, in a seeming reversal, Mukand offered to submit the same information
that it previously maintained was not reasonably obtainable. Id. at 10.
In its final results, Commerce refused to consider the new information because it could
not review it, solicit interested party comments, and re-calculate a margin within the statutory
timetables. I&D Mem. at 33. Therefore, Commerce continued to rely on AFA and assigned to
Mukand an AFA rate of 21.02 percent. Id. at 34. This appeal followed.
SUBJECT MATTER JURISDICTION AND STANDARD OF REVIEW
Mukand commenced this action under section 516A of the Tariff Act of 1930, 19 U.S.C.
§ 1516a(a)(2)(B)(iii) (2006). Accordingly, the Court has jurisdiction pursuant to 28 U.S.C. §
1581(c). This Court must uphold Commerce’s determination unless it is “unsupported by
substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. §
1516a(b)(1)(B)(i).
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).
Thus, the Court will not displace Commerce’s adequately supported conclusions simply because
reasonable minds may differ as to the proper outcome. Thai Pineapple Pub. Co. v. United
States, 187 F.3d 1362, 1365 (Fed. Cir. 1999). Commerce enjoys broad discretion when
implementing U.S. antidumping law and “factual determinations supporting anti-dumping
margins are best left to the agency’s expertise.” F.lli De Cecco di Filippo Fara S. Martino S.p.A.
v. United States, 216 F.3d 1027, 1032 (Fed. Cir. 2000); see also Ad Hoc Shrimp Trade Action
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Comm. v. United States, 33 CIT __, __, 675 F. Supp. 2d 1287, 1304 (2009) (addressing
Commerce’s broad discretion in determining whether to apply AFA).
The Court employs a two-part analysis when assessing whether Commerce’s statutory
construction is otherwise “in accordance with law.” Chevron, U.S.A., Inc. v. Natural Res. Def.
Council, 467 U.S. 837, 842–43 (1984); Wheatland Tube Co. v. United States, 495 F.3d 1355,
1359 (Fed. Cir. 2007). Under the Chevron rubric, the Court first assesses “whether Congress has
directly spoken to the precise question at issue.” Chevron, U.S.A., Inc., 467 U.S. at 842. If it
has, then the Court must give effect to Congress’s unambiguously expressed intent. Id. at 842–
43. If, however, the statute is silent or ambiguous with respect to the pertinent issue, the Court
defers to Commerce’s reasonable statutory construction. Id. at 843.
LEGAL FRAMEWORK FOR DETERMINATIONS BASED ON AFA
In an administrative review of an antidumping duty order, Commerce must determine
whether the subject merchandise “is being, or is likely to be, sold in the United States at less than
its fair value.” 19 U.S.C. § 1673(1). To facilitate that determination, Commerce evaluates “the
normal value and export price (or constructed export price) of each entry of the subject
merchandise” and “the dumping margin for each such entry.” Id. § 1675(a)(2)(A). U.S. law
defines the dumping margin as “the amount by which the normal value exceeds the export price
or constructed export price of the subject merchandise.” Id. § 1677(35)(A). And that margin
serves as “the basis for the assessment of . . . antidumping duties on entries of merchandise
covered by the determination and for deposits of estimated duties.” Id. § 1675(a)(2)(C).
To assist in calculating a dumping margin, Commerce requests information from
respondents through questionnaires. If a respondent (for any reason) fails to satisfactorily
respond to Commerce’s requests for “necessary information,” Commerce must use “facts
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otherwise available” to fill the gap in the record caused by respondent’s failure. Id. § 1677e(a);
Nippon Steel Corp. v. United States, 337 F.3d 1373, 1381 (Fed. Cir. 2003) (noting that (a)
focuses on respondent’s failure to provide information, not on the reason for the failure).
However, before resorting to facts otherwise available, Commerce must satisfy the statutory
requirements of 19 U.S.C. § 1677m(d) and (e). 19 U.S.C. § 1677e(a); see also Gerber Food
(Yunnan) Co. v. United States, 29 CIT 753, 763–64, 387 F. Supp. 2d 1270, 1280–81 (2005).
Pursuant to § 1667m(d), Commerce shall “promptly inform the person submitting the
response of the nature of the deficiency” and “to the extent practicable, provide that person with
an opportunity to remedy or explain the deficiency in light of the time limits established” for
completion of the review. Though the burden of creating a complete, accurate record ultimately
rests on the respondent, Commerce must still ensure that the respondent is “fully aware of what
information the Department [seeks] and the form in which it [seeks] the data.” SKF USA Inc. v.
United States, 29 CIT 969, 980, 391 F. Supp. 2d 1327, 1336 (2005).
If Commerce finds that the party’s proffered explanation is unsatisfactory or untimely, it
may “disregard all or part of the original and subsequent responses.” 19 U.S.C. § 1677m(d).
Conversely, Commerce “shall not decline to consider” necessary information if:
(1) the information is submitted by the deadline established for its submission, (2)
the information can be verified, (3) the information is not so incomplete that it
cannot serve as a reliable basis for reaching the applicable determination, (4) the
interested party has demonstrated that it acted to the best of its ability in providing
the information and meeting the requirements established by the administering
authority or the Commission with respect to the information, and (5) the
information can be used without undue difficulties.
Id. § 1677m(e).
After determining that the use of facts otherwise available is appropriate, Commerce may
further find that the record deficiency was caused by respondent’s failure to act “to the best of its
ability” in complying with Commerce’s requests. Id. § 1677e(b). If Commerce reaches that
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conclusion, it may use an “adverse” inference—known as AFA—when selecting among facts
otherwise available. Id. The statute does not define what an adverse inference entails, but it
should be a “reasonably accurate estimate of the respondent’s actual rate . . . with some built-in
increase intended as a deterrent to non-compliance.” F.lli De Cecco di Filippo Fara S. Martino
S.p.A., 216 F.3d at 1032. 3
DISCUSSION
I. Commerce reasonably used AFA to calculate Mukand’s dumping margin
Mukand’s first challenge to the Final Results relates to Commerce’s application of AFA
when selecting Mukand’s dumping margin. Mukand asserts that since it complied with
Commerce’s requests for size-specific cost information, Commerce erred in concluding that
Mukand failed to respond to the best of its ability. Pl.’s Mot. for J. on Agency R. (“Pl.’s Br.”) at
2. And because a respondent’s failure to act to the best of its ability is a prerequisite to the
application of AFA, Mukand maintains that Commerce’s AFA determination was unlawful. Id.
Mukand’s argument rests on the wording of Commerce’s questionnaires. Specifically,
Mukand justifies its non-responsiveness on two grounds: (1) Commerce’s questionnaires only
technically asked for size-specific costs if there existed a reasonable, verifiable way of isolating
and reporting those costs, and (2) in lieu of reporting size-based costs, Commerce authorized
Mukand to narratively explain why it believed that any cost differences attributable to product
size were insignificant. Id. at 3–4. Mukand asserts that it fully complied when it explained to
Commerce that there existed no reasonable, verifiable way of reporting size-specific costs, and
that in any event, variable costs did not significantly vary across product sizes. Id.
3 The corroboration requirement in 19 U.S.C. § 1677e(c) constrains Commerce when selecting among potential
AFA rates. Pursuant to § 1677e(c), when Commerce relies on “secondary information” for its AFA rate (as it has
here), it must corroborate that information “to the extent practicable.” The court does not address corroboration
since Mukand has not raised it.
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The Government maintains that Mukand’s reliance on semantics masks the obvious
meaning of Commerce’s request—namely, that Mukand either report size-based costs or
quantify and explain in a detailed narrative why it believes that size had an insignificant impact
on variable costs. Def.’s Opp’n to Pl.’s Mot. for J. on Agency Record (“Def.’s Br.”) at 14–16.
Despite Commerce’s five separate attempts to elicit the necessary cost information, suggestions
regarding how Mukand could compile that information, and offers to clarify the substance of its
requests, Mukand failed to comprehensively address Commerce’s questions. As a result,
Commerce asserts, it reasonably concluded that Mukand failed to act to the best of its ability
during the proceeding. Id. at 20.
A. Necessary information was absent from the record
Mukand did not provide necessary information to Commerce in the proceeding below.
To accurately perform its less than fair value analysis, Commerce must compare “the normal
value and export price (or constructed export price) of each entry of the subject merchandise.”
Id. § 1675(a)(2)(A).4 When calculating normal value, Commerce disregards foreign like product
sales occurring below the cost of production. Id. § 1677b(b)(1). If no sales remain after
disregarding below cost sales, Commerce constructs its own normal value for the subject
merchandise. Id. Additionally, when Commerce compares physically dissimilar merchandise, it
adjusts normal value to ensure a fair comparison between the foreign like product and the subject
merchandise. Id. § 1677b(a)(6); 19 C.F.R. § 351.411 (2012). Commerce cannot calculate that
DIFMER adjustment without knowing how certain physical characteristics affect the non-
4 “‘[T]he preferred methodology in reviews [is] to compare average [normal values] to individual export prices.’”
Kyd, Inc. v. United States, 35 CIT __, __, 779 F. Supp. 2d 1361, 1369 n.3 (2011) (citing Statement of Administrative
Action accompanying the Uruguay Round Agreements Act, H.R. Doc. No. 103-316, at 843 (1994), reprinted in
1994 U.S.C.C.A.N. 4040, 4178).
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identical foreign like product’s variable manufacturing cost. 19 C.F.R. § 351.411; Thai Plastic
Bags Indus. Co. v. United States, 34 CIT __, __, 752 F. Supp. 2d 1316, 1325 n.22 (2010).
In this case, Mukand’s failure to report size-based costs prevented Commerce from
performing a sales-below-cost analysis, calculating a constructed value, and making applicable
DIFMER adjustments. See I&D Mem. at 26. In sum, Commerce did not have all the
information necessary to calculate Mukand’s dumping margin.
B. Commerce provided adequate notice of the record deficiency
Commerce also complied with its notification duties under 19 U.S.C. § 1677m(d). On
five occasions, Commerce attempted to elicit size-specific cost information. On all but the first
occasion, Commerce made clear that it was unsatisfied with Mukand’s response and reiterated
both what it needed and why that information was important. In its final questionnaire,
Commerce even created a table for Mukand and offered to respond to any questions.
Thus, Mukand’s assertion that Commerce never directly requested size-specific cost
information is meritless.5 Instead, the record reflects that Commerce repeatedly asked for
“imperative” size-based costs regardless of whether the company tracked such costs in its normal
books and records. Mukand’s narrow focus on Commerce’s direction to report those costs using
a “reasonable” and “verifiable” method misses the broader picture. Based on the record as a
whole, Commerce clearly included that language to obtain useable and necessary information,
not to provide Mukand with a basis for evading its requests.6
5 The court is mindful of the fact that Mukand is comprised largely of non-English speakers; however, that is true of
most respondents in these proceedings. If Mukand was experiencing such difficulty in understanding Commerce’s
requests, it should have accepted Commerce’s invitation for further discussion.
6 Mukand does not appear to directly challenge Commerce’s decision to disregard Mukand’s narratives explaining
why costs do not vary across product sizes. Nonetheless, Commerce was within its discretion in not accepting
Mukand’s vague, unsupported assertions. Commerce instructed Mukand to “explain” and “quantify” why size did
not influence product costs, and Commerce reasonably found that Mukand’s responses fell short of that threshold.
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C. An adverse inference was appropriate under the circumstances
Lastly, Commerce reasonably adopted an adverse inference when selecting among the
facts otherwise available. The proper inquiry for AFA is not whether Mukand intended to thwart
Commerce in its efforts to complete the record. Rather, “[t]he statutory trigger for Commerce’s
consideration of an adverse inference is simply a failure to cooperate to the best of respondent’s
ability, regardless of motivation or intent.” Nippon Steel, 337 F.3d at 1383. A respondent fails
to act to the best of its ability if it does not to “do the maximum it is able to do.” Id. at 1382.
Phrased differently, AFA is appropriate when a respondent has failed to “put forth its maximum
effort to provide Commerce with full and complete answers to all inquiries.” Id.
Mukand consistently avoided the substance of Commerce’s size-based cost questions by
offering only vague, unsupported assertions that the requested information was not reasonably
available and that size did not significantly impact costs. Despite Mukand’s repeated assertions
that the information was not part of their normal records and otherwise not possible to track, it
was suddenly able to provide the requested information after Commerce’s preliminary decision
to apply AFA. Moreover, Mukand’s substantial experience with Commerce proceedings and the
fact that other respondents were able to isolate size-based costs lends further support to
Commerce’s findings. Based on the foregoing, Commerce reasonably found that Mukand did
not do the maximum it was able to do and that AFA was appropriate.
II. Commerce reasonably employed total AFA
Mukand next argues that even if resort to AFA was reasonable, application of total AFA
was not. Mukand claims that resort to total AFA violated Commerce’s statutory mandate to
accurately calculate dumping margins. Pl.’s Br. at 7. Further, Mukand maintains, Commerce’s
decision was inconsistent with its practice in prior proceedings of applying total AFA only to
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“far more egregious conduct” and not to the comparatively less egregious conduct exhibited in
this case. Id. at 8. Because Mukand’s sole failure was in not reporting size-specific costs,
Mukand believes Commerce should have employed partial AFA. Id. at 9.
The Government asserts that it acted consistently with its past practice. In support, it
cites numerous instances where it employed total AFA in response to a foreign company’s
failure to provide product-specific cost of production or DIFMER adjustment information.
Def.’s Br. at 18–20. The Government argues that Mukand’s responses similarly warranted total
AFA since they were “so incomplete” that they could not serve as a reliable basis for reaching a
final determination and could not be used without undue difficulty. See I&D Mem. at 30.
A. Framework for distinguishing total AFA and partial AFA
Neither statutory nor regulatory law reference the concept known as total AFA, but
Commerce uses it administratively to refer to “Commerce’s application of adverse facts available
not only to the facts pertaining to specific sales for which information was not provided, but to
the facts respecting all of respondents’ sales encompassed by the relevant antidumping duty
order.” Shandong Huarong Mach. Co. v. United States, 30 CIT 1269, 1271 n.2, 435 F. Supp. 2d
1261, 1265 n.2 (2006). Partial AFA, by contrast, is used “where there is useable information of
record but the record is incomplete.” Wash. Int’l Ins. Co. v. United States, Slip Op. 09-78, 2009
WL 2460824, at *8 n.18 (CIT July 29, 2009).
Case law has illuminated the circumstances Commerce should consider when deciding
whether to apply total AFA or partial AFA. Total AFA is appropriate “where none of the
reported data is reliable or usable” because, for example, all of the “submitted data exhibited
pervasive and persistent deficiencies that cut across all aspects of the data.” Zhejiang Dunan
Hetian Metal Co. v. United States, 652 F.3d 1333, 1348 (Fed. Cir. 2011); see also Foshan
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Shunde Yongjian Housewares & Hardware Co. v. United States, Slip Op. 11-123, 2011 WL
4829947, at *14 (CIT Oct. 12, 2011) (noting that total AFA involves a deficiency pertaining to
“core, not tangential” information). Partial AFA may be required when the deficiency is only
“with respect to a discrete category of information.” Foshan Shunde, 2011 WL 4829947, at *14.
When applying total or partial AFA, Commerce is also bound by statutory constraints on
its ability to disregard deficient information. Specifically, pursuant to 19 U.S.C. § 1677m(e),
Commerce may only disregard “information” if it fails to meet any of five enumerated
requirements. This court has previously deferred to Commerce’s interpretation of “information”
to encompass all the information that a respondent submits as opposed to discrete categories of
information. Steel Auth. of India, Ltd. v. United States, 25 CIT 482, 486, 149 F. Supp. 2d 921,
928 (2001). This interpretation is reasonable. If Commerce was constrained to consider some
submissions, but not others, respondents could manipulate the process by submitting only
beneficial information. Id. As a result, “[r]espondents, not the Department, would have the
ultimate control to determine what information would be used for the margin calculation,” and
the Department could not reliably calculate dumping margins. Id.
B. Commerce adequately supported its total AFA determination
In this case, Commerce decided that Mukand’s submitted information collectively failed
to satisfy at least two of the five requirements of § 1677m(e). In particular, in its Issues &
Decisions Memorandum, Commerce found that:
Mukand’s failure to provide the requested data renders its response unusable for
these final results under section 782(e) [§ 1677m(e)] of the Act. The information
Mukand did provide was so incomplete that it could not serve as a reliable basis
for reaching a final determination because without the cost information based on
size, 	the 	Department 	cannot 	conduct 	an 	adequate 	sales-below-cost 	test 	or
calculate an accurate DIFMER adjustment for size. For example, size specific
sales prices are compared to size specific costs in the sales below cost test, so
without size specific costs, an accurate sales-below-cost test cannot be performed.
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Furthermore, because the information was so incomplete, we find it cannot be
used without undue difficulty.
I&D Mem. at 30.
Commerce could have reasonably concluded that Mukand’s persistent failure to
report size-based costs made the remaining information so incomplete that it could not
“serve as a reliable basis for reaching a final determination.” See 19 U.S.C. §
1677m(e)(3). To make an antidumping determination, the Department needs respondent
data on U.S. sales, home market sales, cost of production, and constructed value. Steel
Auth. of India, Ltd., 25 CIT at 482, 149 F. Supp. 2d at 927. In this review, Commerce
was missing a piece of cost information necessary to calculate the cost of production and
constructed value. The absence of information so “vitally interconnected with other
elements of the dumping determination” could have made Mukand’s submitted
information too incomplete for Commerce to reliably calculate a margin. See Issues &
Decision Memorandum, A-533-810 (Sept. 14, 2004), at cmt. 1, p.12.
Moreover, because Commerce was unable to calculate cost of production or
constructed value, it could have been unduly difficult for Commerce to apply partial
AFA. Without cost information, Commerce could not disregard below cost sales. In that
scenario, normally Commerce would find as AFA that all home market sales were below
cost and, accordingly, look to constructed value. See Issues & Decision Memorandum,
A-533-810 (Aug. 10, 2000), at Facts Available cmt. 1. However, here Commerce would
also be unable to calculate constructed value without size-based cost information.7
7 In this regard, the instant case is distinct from the prior stainless steel proceeding upon which Mukand relies to
support its partial AFA argument. See Issues & Decision Memorandum, A-533-810 (Aug. 10, 2000). There, certain
cost information was absent from the COP database, and Commerce found as AFA that all home market sales were
below cost. Id. at Facts Available cmt. 1. Turning to CV, Commerce found that the respondent did submit useable
CV information, but not in the format Commerce desired. Id. Commerce decided that a partial AFA was warranted
given the deficiency, but rejected total AFA since the information was “sufficiently complete to serve as a reliable
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Although Mukand posits that Commerce should have used other respondents’ size-based
data to fill the record gap, doing so would have impermissibly rewarded Mukand by
allowing it to benefit from information provided by cooperative respondents.
Lastly, the fact that Commerce typically applies total AFA to more egregious
conduct is not dispositive. While most total AFA cases do involve more severe record
deficiencies, Mukand has not persuasively cited any authority establishing that
Commerce’s practice is to employ partial AFA in analogous factual circumstances.
Based on the facts of this case, Commerce adequately supported its total AFA
determination. Commerce has repeatedly noted that cost information is a vital part of its
dumping analysis. See I&D Mem. at 30; Issues & Decision Memorandum, A-533-810
(Sept. 14, 2004), at cmt. 1; Issues & Decision Memorandum, A-489-808 (Mar. 21, 2000),
at cmt. 1. Given its importance, Mukand’s missing cost information did not create a
deficiency with respect to a “discrete category of information” such that only partial AFA
would be appropriate. See Foshan Shunde, 2011 WL 4829947, at *14. Rather,
Commerce reasonably found that Mukand’s missing information was essential for
multiple calculations, thereby warranting total AFA.
CONCLUSION AND ORDER
For the foregoing reasons, it is hereby ordered that Mukand’s Rule 56.2 Motion
for Judgment on the Agency Record is DENIED and the Final Results are SUSTAINED.
/s/ Richard W. Goldberg
Richard W. Goldberg
Senior Judge
Dated: March 25, 2013
New York, New York
basis for reaching a determination without creating undue difficulties.” Id. Unlike in that proceeding, Mukand did
not submit any size-based costs.
Case 1:11-cv-00401-RWG Document 66 Filed 04/03/13 Page 15 of 15