503 F.Supp.3d 1355
Ct. Int'l Trade2021Background
- Sea-Line, a Chinese exporter of fresh garlic, was a mandatory respondent in Commerce’s 23rd antidumping administrative review for Nov. 2016–Oct. 2017.
- Commerce requested transaction-level U.S. sales data (payment dates and net revenue prices); Sea-Line initially reported invoice prices and omitted payment dates, later asserting a higher “total negotiated price” that included two undisclosed components.
- Commerce issued two supplemental questionnaires; Sea-Line provided inconsistent explanations and supporting documents (some illegible) that Commerce found irreconcilable with its sales database.
- FGPA withdrew a request for verification after the preliminary results; Commerce cancelled verification and, in the Final Results, concluded Sea-Line’s U.S. price data were unreliable.
- Commerce used facts otherwise available and applied total adverse facts available (AFA), assigning Sea-Line a $4.71/kg dumping margin; Sea-Line sued to challenge the AFA and (alternatively) Commerce’s surrogate-country selection.
- The Court of International Trade upheld Commerce: it found substantial evidence for resorting to facts otherwise available, for applying AFA, and did not reach the surrogate-country challenge (Sea-Line lacked a calculable rate and thus standing to challenge surrogate selection).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Commerce permissibly resorted to facts otherwise available (FA) for Sea-Line’s U.S. sales price data | Sea-Line: no gap existed — Commerce could use record information (as in preliminary results); Commerce failed to identify and notify discrete deficiencies and should have let Sea-Line cure illegible docs | Commerce: Sea-Line’s submissions were inconsistent, unverifiable, and unworkable despite two supplements; FA was appropriate to fill the core gap | Court: Held Commerce properly identified a gap and permissibly used FA; substantial evidence supports finding Sea-Line’s U.S. price data unreliable |
| Whether Commerce permissibly applied adverse facts available (AFA) | Sea-Line: it cooperated and any deficiencies were minor or curable; Commerce did not meet §1677m(d) notice obligations | Govt/FGPA: Sea-Line failed to act to the best of its ability, provided inconsistent data after multiple opportunities, and undermined verifiability | Court: Held Commerce permissibly applied AFA — Sea-Line did not cooperate to the best of its ability (Nippon Steel/Mukand framework) |
| Whether Commerce erred by not allowing resubmission of illegible supporting documents | Sea-Line: Commerce should have specifically notified these deficiencies and allowed resubmission under §1677m(d) | Commerce: it provided two supplements and reasonably concluded resubmitting illegible pages would not cure pervasive inconsistencies | Court: Held resubmission was not required because illegible docs were only one of multiple, core deficiencies making the record unusable |
| Whether Commerce erred by cancelling verification; and surrogate-country selection challenge | Sea-Line: cancelling verification prevented correction of issues; if AFA overturned, surrogate selection (Romania v. Mexico) is also unlawful | Commerce: verification discretionary; no request or showing of good cause by Sea-Line; surrogate selection irrelevant to Sea-Line because AFA produced its rate | Court: Held cancellation of verification not an abuse of discretion; did not decide surrogate-country claim (AFA dispositive and Sea-Line lacks standing to challenge surrogate selection) |
Key Cases Cited
- Nippon Steel Corp. v. United States, 337 F.3d 1373 (Fed. Cir. 2003) (defines “best of its ability” standard for AFA)
- Mukand, Ltd. v. United States, 767 F.3d 1300 (Fed. Cir. 2014) (upheld AFA where respondent failed repeatedly to provide necessary, verifiable information)
- Zhejiang DunAn Hetian Metal Co. v. United States, 652 F.3d 1333 (Fed. Cir. 2011) (addresses when reported data are unusable and total AFA is appropriate)
- Dongtai Peak Honey Indus. Co. v. United States, 777 F.3d 1343 (Fed. Cir. 2015) (clarifies that carelessness or inadequate record keeping can justify AFA)
- Nan Ya Plastics Corp. v. United States, 810 F.3d 1333 (Fed. Cir. 2016) (burden is on respondent to create an adequate record to avoid AFA)
- BMW of N. Am. LLC v. United States, 926 F.3d 1291 (Fed. Cir. 2019) (Commerce must consider totality of circumstances when selecting an AFA rate)
- Timken U.S. Corp. v. United States, 434 F.3d 1345 (Fed. Cir. 2006) (verification may be used when Commerce doubts submissions; discussed in context of verification discretion)
- Shakeproof Assembly Components v. United States, 268 F.3d 1376 (Fed. Cir. 2001) (verification is reviewed for abuse of discretion and must be timely requested)
- Micron Tech., Inc. v. United States, 117 F.3d 1386 (Fed. Cir. 1997) (addresses limits on claims that information should have been verified when verification was not requested)
- Olympic Adhesives, Inc. v. United States, 899 F.2d 1565 (Fed. Cir. 1990) (Commerce’s questionnaire and response obligations discussed)