Commerce Can't Use AFA Against Cooperative Respondents, Chinese Roller Bearing Maker Argues
The Commerce Department shouldn't have relied on adverse facts available in an antidumping duty review on tapered roller bearings from China for a fully cooperative entity that attempted to obtain information from its suppliers but couldn't secure their cooperation, Chinese bearing exporter Shanghai Tainai Bearing said in a July 13 motion for judgment at the Court of International Trade. Court precedent doesn't require a party to provide information not in its possession and which it can't reasonably obtain, the company said (Shanghai Tainai Bearing v. U.S., CIT # 23-00020).
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Tainai asked the court to remand the case to Commerce with instructions to reconsider its selected factors of product, its deduction of Section 301 duties from the U.S. price, its decision to cap the amount of revenue received as additional payment, and its failure to grant a byproduct offset. Tainai originally challenged Commerce's use of partial AFA when calculating the final 36.03% antidumping duty for the company in its Feb. 21 complaint (see 2302220039).
With a fully cooperative entity, "missing information should be selected from neutral facts, not adverse facts," Tainai argued, saying that its conduct "met all of the requirements for best efforts and cooperation." The use of adverse inferences requires a finding that a party did not use its best efforts in responding to Commerce, the company said. In contrast, Tainai said that it advised Commerce early on that unrelated suppliers would provide key information and that it was aware of the consequences if it could not obtain their cooperation.
Commerce never claimed that Tainai itself failed to cooperate, Tainai said. In fact, Tainai argued, because Commerce found that the company was entitled to a separate rate and was not part of the China-wide entity, the agency necessarily found that Tainai was cooperative.
"The inability of a respondent to obtain information from unrelated third parties is neither new nor unique," Tainai said. While Commerce has required parties to "obtain information from unrelated third-parties where the respondent has the power [to] induce cooperation, it does not require provision of this data no matter the degree of power." Here, Tainai didn't have sufficient market power "to force the unrelated suppliers to cooperate."
CIT has previously held that Commerce must consider evidence on whether the respondent had the practical ability to force cooperation, Tainai said. "The Courts have long held that a party can only be required to provide the information that it actually has in its possession."