Kumar Industries v. United StatesKumar Industries v. United States
OPINION
[Plaintiff‘s Motion for Judgment on the Agency Record is denied. ]
Dated: April 23, 2025
Kelly M. Geddes, Trial Attorney, U.S. Department of Justice, Washington, D.C., argued for Defendant United States. With her on the briefs were Brian M. Boynton, Principal Deputy Assistant Attorney General, Patricia M. McCarthy, Director, Claudia Burke, Deputy Director. Of Counsel on the briefs were Jack Dunkelman and Joseph Grossman-Trawick, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce, of Washington, D.C.
Katzmann, Judge: This case involves a company‘s claims of non-affiliation during the U.S. Department of Commerce‘s (“Commerce“) 2021-22 administrative review of the antidumping order on imports of glycine1 from the
Commerce issued its final determination on November 13, 2023. See Final Results, 88 Fed. Reg. 77552. In an accompanying memorandum, Commerce explained that necessary information was not available on the record, and that Kumar had withheld requested information, failed to provide information by the specified deadlines, and significantly impeded the proceeding by failing to provide information and documents substantiating its claim of non-affiliation with Companies A and B. See Mem.
This case presents two issues: (1) Whether Commerce‘s application of an adverse inference to Kumar is supported by substantial evidence and is otherwise in accordance with law; and (2) whether Commerce‘s decision to subtract antidumping and countervailing duties from the U.S. duties for only three of Kumar‘s transactions is supported by substantial evidence and otherwise in accordance with law. The court concludes that Commerce‘s application of an adverse inference and subtraction of antidumping and countervailing duties for only three transactions is supported by substantial evidence and otherwise in accordance with law. Therefore, the court denies Kumar‘s motion.
LEGAL BACKGROUND
The court briefly summarizes relevant concepts of trade law below before diving into the issues in this case.
I. Antidumping Duties
“Dumping” occurs when a foreign producer sells goods in the United States at a lower price than the producer charges for the same product in its home market. See Sioux Honey Ass‘n v. Hartford Fire Ins. Co., 672 F.3d 1041, 1046 (Fed. Cir. 2012). “Sales at less than fair value are those sales for which the ‘normal value’ (the price a producer charges in the home market) exceeds the ‘export price’ (the price of the product in the United States).” See Apex Frozen Foods v. United States, 862 F.3d 1322, 1326 (Fed. Cir. 2017) (citation omitted); see also
Upon a party‘s request, Commerce must “review[] and determine . . . the amount of any antidumping duty” each year after the publication of an antidumping duty order.
II. Calculating Antidumping Duties
As the normal value and export price may each rest on aggregated data (sets of multiple sales at different prices), Commerce determines the difference between the two values by calculating a weighted-average dumping margin. See
III. Party Submissions
In antidumping proceedings, Commerce “obtains most of its factual information . . . from submissions made by interested parties during the course of the proceeding.”
necessary information is not available on the record, or . . . an interested party or any other person-(A) withholds information that has been requested by [Commerce] under this subtitle, (B) fails to provide such information by the deadlines for submission of the information or in the form and manner requested, subject to [
19 U.S.C. § 1677m(c)(1) and(e) ], (C) significantly impedes a proceeding under this subtitle, or (D) provides such information but the information cannot be verified as provided in [§] 1677m(i) .
If Commerce determines that a party‘s response to a request for information is insufficient, it “shall promptly inform the person submitting the response of the nature of the deficiency and shall, to the extent practicable, provide that person with an opportunity to remedy or explain the deficiency.”
FACTUAL BACKGROUND
On August 9, 2022, Commerce initiated an administrative review of the antidumping duty order on glycine from India during the period of June 1, 2021, to May 31, 2022, at Kumar‘s request. See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 87 Fed. Reg. 48459, 48461 (Dep‘t Com. Aug. 9, 2022), P.R. 11; see also Glycine from China, India, and Japan; Determinations, 84 Fed. Reg. 29238 (ITC June 21, 2019); Glycine from India and Japan: Amended Final Affirmative Antidumping Duty Determination and Antidumping Duty Orders, 84 Fed. Reg. 29170 (Dep‘t Com. June 21, 2019). Commerce found that there was “a large number of exporters or producers of glycine from India covered by this administrative review,” and that “it [was] not practicable to individually examine and determine an individual weighted-average dumping margin for each exporter or producer. . . .” Respondent Selection Mem. at 3. As a result, Commerce selected the two exporters or producers with the largest volume of entries of subject merchandise-Avid Organics Private Limited (“Avid“) and Kumar-for individual examination as mandatory respondents. See id. at 4;
On September 22, 2022, Commerce issued the Initial Questionnaire to Avid and Kumar requesting various information about their production and sale of glycine including information about affiliates.4 See Initial Questionnaire at A-3. In response, Kumar identified several affiliates and charts purporting to list all its affiliates. See id. at 7; Exs. to Initial Questionnaire Resp. at A-3, A-3(a), A-4 (Oct. 20, 2022), C.R. 13 (“Affiliate Charts“). Kumar did not identify Companies A or B as affiliates in its initial response. See id.
Kumar again did not list Companies A and B as affiliates in its initial response during the 2021-22 administrative review and did not provide any supporting documentation to demonstrate that its affiliation status had changed since the prior administrative reviews. See Initial Questionnaire Resp. at 7; Affiliate Charts. As a result, Commerce issued a supplemental questionnaire on November 22, 2022, requesting that Kumar “explain in detail with supporting documents whether” Companies A and B “are affiliated with Kumar,” produced glycine in India, imported glycine into India, or sold glycine. First Suppl. Questionnaire at 5. If Companies A and B were not affiliated with Kumar, Commerce requested that Kumar “provide supporting documents that demonstrate that these companies were not affiliated with Kumar during the [period of review].” Id.
Kumar responded on December 12, 2022, stating that Companies A and B were not affiliated with Kumar and that Kumar “had sufficiently explained this in detail[ed] submissions during previous administrative reviews.” First Suppl. Questionnaire Resp. at 6. Kumar also stated that Companies A and B did not produce or sell glycine during the period of review and that the “companies informed [Kumar] that they will not share their audited financials.” Id.
Commerce issued a Second Supplemental Questionnaire on February 3, 2023, again requesting that Kumar provide a narrative explanation and supporting documentation regarding its affiliation, or lack thereof, with Companies A and B during the period of review. See Second Suppl. Questionnaire at 4. In its request, Commerce emphasized that Kumar must provide “more substantive information than just a statement saying that Kumar is not affiliated with these companies.” Id. Commerce also reminded Kumar that it had applied adverse inferences in the previous administrative reviews when it was “unable to determine Kumar‘s affiliation status with these companies because Kumar failed to cooperate to the best of its ability in response to [its] multiple requests for information concerning Kumar‘s affiliation status with these companies.” Id. In response, Kumar repeated its prior representations that it had no affiliations with Companies A and B, that Companies A and B confirmed they had not produced or sold glycine during the period of review, and that Companies A and B refused to provide audited financial statements. See Second Suppl. Questionnaire Resp. at 2-3. Kumar included correspondences between Kumar and Companies A and B in its second supplemental questionnaire response. See Exs. to First. Suppl. Questionnaire Resp. at Ex. A-12.1 (Dec. 12, 2022), C.R. 86 (“Letters Between Kumar and Companies A and B“).
Commerce published final results for the 2021-22 administrative review on November 13, 2023, determining that necessary information was not available on the record and that Kumar withheld requested information, failed to provide information by the specified deadlines, and significantly impeded the proceeding by failing to provide information and documents substantiating its claim of non-affiliation with Companies A and B. See Final Results, 88 Fed. Reg. 77552; IDM at 12-14; see also
On December 7, 2023, Kumar initiated this action “to contest the final results issued by [Commerce] in the § 751 administrative review of Glycine from India.” Am. Compl. ¶ 1, Jan. 1, 2024, ECF No. 8; see Summons, Dec. 7, 2023, ECF No. 1. Kumar timely filed its motion for judgment on the agency record on June 3, 2024. See Conf. Mot. for J. on the Agency R., June 3, 2024, ECF No. 21; Pub. Mot. for J. on the Agency R., June 3, 2024, ECF No. 22; Conf. Am. Mot. for J. on the Agency R., Sept. 19, 2024, ECF No. 29 (“Pl.‘s Br.“); Pub. Am. Mot. for J. on the Agency R., Sept. 19, 2024, ECF No. 30.
The Government filed its response on September 6, 2024, asking the court to deny the motion for judgment on the agency record. See Conf. Resp. in Opp‘n to Mot. for J. on the Agency R., Sept. 6, 2024, ECF No. 23; Pub. Resp. in Opp‘n to Mot. for J. on the Agency R., Sept. 6, 2024, ECF No. 24; Conf. Am. Resp. in Opp‘n to Mot. for J. on the Agency R., Sept. 11, 2024, ECF No. 26 (“Gov‘t Br.“); Pub. Am. Resp. in Opp‘n to Mot. for J. on the Agency R., Sept. 11, 2024, ECF No. 27. Kumar filed its reply on October 7, 2024. See Conf. Reply, Oct. 7, 2024, ECF No. 33 (“Pl.‘s Reply“); Reply, Oct. 7, 2024, ECF No. 34.
The court scheduled oral argument for January 22, 2025. See Order, Nov. 13, 2024, ECF No. 39. The court issued questions in advance of oral argument to Kumar and the Government, see Letter re: Qs. for Oral Arg., Jan. 2, 2025, ECF No. 41, to which those parties filed written responses, see Pl.‘s Resp. to Ct.‘s Qs. for Oral Arg., Jan. 16, 2025, ECF No. 47 (“Pl.‘s OAQ Resp.“); Def.‘s Resp to Ct.‘s Qs. for Oral Arg., Jan. 16, 2025, ECF No. 48 (“Gov‘t OAQ Resp.“). Oral argument took place as scheduled. See Notice of Oral Arg., Jan. 22, 2025, ECF No. 49.
With all filings now in hand, the court turns to the merits of the case.
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction over this action pursuant to
DISCUSSION
Kumar asserts a number of errors in Commerce‘s final determination, suggesting that Commerce (1) incorrectly applied an adverse inference against Kumar, (2) ignored its statutory mandate to notify Kumar of the deficiency and providing an opportunity to address the issue, and (3) incorrectly deducted antidumping and countervailing duties in calculating U.S. price. The court denies Kumar‘s motion. See Pl.‘s Br.
I. Commerce‘s Application of an Adverse Inference Against Kumar is Supported by Substantial Evidence and is Otherwise in Accordance with Law.
Commerce‘s decision to apply an adverse inference involves an analysis with “two distinct parts respectively addressing two distinct circumstances under which Commerce has received less than the full and complete facts needed to make a determination.” Nippon Steel v. United States, 337 F.3d 1373, 1381 (Fed. Cir. 2003). First, where a respondent fails to provide information, Commerce fills in the gaps with “facts otherwise available.”
Kumar argues that Commerce‘s decision to apply an adverse inference against Kumar “was legally unsupported and did not comply with the established standards for the taking of adverse inferences.” Pl.‘s Br. at 9. Kumar first suggests that no necessary information was missing from the record, such that it was unnecessary to fill any gaps with facts otherwise available. See id. at 12-17. Second, Kumar argues that it complied with Commerce‘s requests to the best of its ability, such that it was inappropriate to apply an adverse inference. See id. at 20-22. Commerce determined (1) that necessary information was missing from the record and (2) that Kumar did not act to the best of its ability. Because each of these determinations is supported by thorough considerations of Kumar‘s actions during the investigation, the court concludes that Commerce‘s decision to apply an adverse inference against Kumar is supported by substantial evidence and in accordance with law.
A. Commerce‘s Decision to Use Facts Otherwise Available Is Supported by Substantial Evidence and in Accordance with Law.
Commerce first determined that necessary information regarding Kumar‘s affiliation with Companies A and B was missing from the record and subsequently applied facts otherwise available to calculate Kumar‘s rate. See IDM at 12. Recall that under
The Government argues that Commerce made two reasonable findings: First, that Kumar failed to provide information regarding Kumar‘s affiliation with Companies A and B and that this information was necessary for the calculation of the normal value and dumping margin calculation. See Gov‘t Br. at 9-10; Gov‘t OAQ Resp. at 6-7. Second, that Kumar withheld information that Commerce requested, failed to provide information by the deadline Commerce set, significantly impeded the proceeding, and provided information that Commerce could not verify. See Gov‘t Br. at 8-10. Kumar counters that it provided all the information necessary to conclude that it was not affiliated with Companies A and B, and that Commerce‘s findings are therefore unsupported by substantial evidence and not in accordance with law. See Pl.‘s Br. at 12-15. Kumar also suggests that Commerce erroneously focused only on the absence of a single audited financial statement rather than the record as a whole. See id. at 15.
As Commerce pointed out in its IDM, information about affiliation is “fundamental” for Commerce to calculate the
As summarized above, Commerce initially asked Kumar about its affiliates generally, see Initial Questionnaire at A-3, and later asked specifically about Kumar‘s affiliation with Companies A and B, see First Suppl. Questionnaire at 5; Second Suppl. Questionnaire at 4. In response, Kumar repeatedly claimed that it had no affiliations with Companies A and B. See Initial Questionnaire Resp. at 7; First Suppl. Questionnaire Resp. at 6; Second Suppl. Questionnaire Resp. at 2-3. Commerce noted that “a statement saying that Kumar is not affiliated with these companies,” would not be enough and requested “a narrative explanation and supporting documentation,” for their claim of non-affiliation. Second Suppl. Questionnaire at 4. Kumar responded that it had already “clarified that it has no affiliation with [Companies A and B] . . . .” Id. at 2. Though Kumar indicated that Companies A and B “clearly stated in their written responses that they have no affiliation with Kumar,” Pl.‘s Br. at 14 (citing Letters Between Kumar and Companies A and B), these statements are, like Kumar‘s own statements, unsupported assertions prepared for the purpose of the administrative review. Kumar‘s failure to substantiate its claims of non-affiliation deprived Commerce of information that was fundamental to calculate the dumping margin. Without this information, Commerce reasonably resorted to facts otherwise available to calculate the normal value and antidumping duties in this administrative review.
Kumar claims it sufficiently demonstrated that it was not affiliated with Companies A and B by providing “detailed charts and supporting information . . . for all of the affiliated parties detailing the nature of the relationships, activities, ownership[,] and control.” Pl.‘s Br. at 13. In response to Commerce‘s multiple requests for information regarding
Finally, Kumar argues that Commerce only considered the lack of a single audited financial statement rather than the record as a whole. See Pl.‘s Br. at 12. However, Commerce did not ask for an audited financial statement, or any one specific document. Instead, Commerce suggested that it would accept any supporting documentation, so long as it amounted to more than an unsubstantiated claim of non-affiliation. See Gov‘t Br. at 13; Second Suppl. Questionnaire at 4. Further, Commerce did not consider the lack of an audited financial statement alone; it considered all the documents Kumar provided to determine that Kumar failed to provide verifiable information regarding its affiliation with Companies A and B. See IDM at 12-13 (considering responses to all three questionnaires including supporting documentation). Commerce thus considered the record as a whole to conclude, based on substantial evidence, that necessary information was missing from the record and that Kumar withheld requested information, failed to provide information by the deadlines, and significantly impeded the administrative review proceeding. See
B. Commerce‘s Decision to Apply an Adverse Inference Is Supported by Substantial Evidence and in Accordance with Law.
In addition to determining that necessary information was missing from
Kumar argues that Commerce erred in determining that it did not act to the best of its ability in responding to Commerce‘s questions about affiliation and therefore that Commerce‘s application of an adverse inference is not supported by substantial evidence. See Pl.‘s Br. at 20-22. According to Kumar, its responses amount to more than unsubstantiated statements and thus fully responded to Commerce‘s questionnaires. See Pl.‘s Reply at 4-5. Kumar also maintains that it did not possess the necessary documents to satisfy Commerce‘s requests and did not have the power to force Companies A and B to provide the requisite information. See Pl.‘s Br. at 21. The Government counters that Kumar failed to provide documentary support to establish that it was not affiliated with Companies A and B and thus failed to act to the best of its ability. See Gov‘t Br. at 14. The Government also argues that Kumar‘s failure to maintain adequate records is sufficient on its own to find that Kumar did not act to the best of its ability. See id. at 15-16; Def‘s OAQ Resp. at 10.
Recall that Commerce may use an adverse inference “in selecting from among the facts otherwise available” when “an interested party has failed to cooperate by not acting to the best of its ability to comply with a request for information.”
As outlined above, Commerce requested information about Kumar‘s affiliation three times and asked about Kumar‘s affiliation specifically with Companies A and B twice. See Initial Questionnaire at A-3; First Suppl. Questionnaire at 5; Second Suppl. Questionnaire at 4. Commerce specified in its Second Supplemental Questionnaire that it sought “supporting documents that substantiate [the] narrative explanation,” and that “[s]upporting documents must contain more substantive information than just a statement saying that Kumar is not affiliated with these companies . . . .” Second Suppl. Questionnaire at 4. Kumar thus had three opportunities to provide a sufficient response and instead consistently
Kumar suggests that it could not provide documentation it did not possess. See Pl.‘s Br. at 20; Pl.‘s OAQ Resp. at 4. However, as the Government notes, see Gov‘t Br. at 15 (citing IDM at 16), Kumar‘s failure to adequately maintain records is a failure to act to the best of its ability. See Nippon Steel, 337 F.3d at 1382; Xi‘an Metals & Mins. Imp. & Exp. Co. v. United States, 50 F.4th 98, 108 (Fed. Cir. 2022) (substantial evidence supports the determination that importer “fail[ed] to act to the best of its ability” when it “failed to . . . maintain adequate records . . . .” (alterations and citations omitted)). Kumar was aware that records about its affiliation with Companies A and B were necessary for administrative reviews of antidumping orders based on Commerce‘s application of adverse inferences in prior administrative reviews. In Xi‘an Metals, the Federal Circuit noted that Commerce‘s requests for certain data “should not have come as a surprise” given that Commerce announced during a prior administrative review that it intended to require that data. 50 F.4th at 108. Similarly, in this case Commerce previously found that Kumar failed to support its claim of non-affiliation with Companies A and B, and subsequently applied an adverse inference. See 2018-20 IDM at 28-30; 2020-21 IDM at 5-6. Commerce‘s requests for information regarding Kumar‘s affiliation with Companies A and B, therefore, should not have come as a surprise. Kumar should reasonably have maintained records regarding its affiliation with Companies A and B based on prior administrative reviews. This failure to maintain records that Kumar could have reasonably expected would be the subject of Commerce‘s inquiry is a sufficient basis for Commerce‘s determination that Kumar did not act to the best of its ability during the administrative review. See Nippon Steel, 337 F.3d at 1382; Xi‘an Metals, 50 F.4th at 108. Therefore, Commerce‘s decision to apply an adverse inference is supported by substantial evidence and in accordance with law.
Finally, Kumar argues that the supplemental questionnaires did not provide enough detail to enable Kumar to respond, and that Commerce should have specified which documents to provide. See Pl.‘s Reply at 3; Pl.‘s OAQ Resp. at 3. However, Commerce asked specifically about Kumar‘s affiliation with Companies A and B and stated that any supporting documentation would suffice so long as it “contain[ed] more substantive information than just a statement saying that Kumar is not affiliated with these companies . . . .” Second Suppl. Questionnaire at 4. Kumar provided no supporting documentation containing substantive information beyond a statement of non-affiliation. See Initial Questionnaire Resp.; First Suppl. Questionnaire Resp.; Second Suppl. Questionnaire Resp. As the Government notes, see Gov‘t OAQ Resp. at 3, Kumar could have at least offered the same type of documentation it provided during prior administrative reviews such as tax returns or retirement deeds. See, e.g., 2018-20 Second Suppl. Questionnaire Resp. at Exs. A-18, A-18(a); 2018-20 Third Suppl. Questionnaire Resp. at 3. Kumar notes that the documents it used in previous administrative reviews had been found to be insufficient to prove non-affiliation, arguing that “there was [therefore] no reason for Kumar to supply such documents.” Pl.‘s Reply at 4. However, Commerce did not find the documents in prior administrative reviews to be inherently insufficient. Instead, Commerce found that information within the documents
Additionally, “[t]he burden of creating an adequate record lies with respondents and not with Commerce.” NTN Bearing Corp. of Am. v. United States, 997 F.2d 1453, 1458 (Fed Cir. 1993) (quoting Tianjin Mach. Imp. & Exp. Corp. v. United States, 16 CIT 931, 936, 806 F. Supp. 2d 1008, 1015 (1992)); see also QVD Food, 658 F.3d at 1324. This reflects that “[t]he burden of production should belong to the party in possession of the necessary information.” Zenith Elecs. Corp. v. United States, 988 F.2d 1573, 1583 (Fed. Cir. 1993); NTN Bearing, 997 F.2d at 1458.
Thus, Kumar bore the burden to support its assertion regarding non-affiliation. Commerce‘s general request for supporting documentation provided sufficient detail to afford notice given that Commerce was not privy to Kumar‘s records and did not know what information Kumar might have to support its assertion.
II. Commerce Provided Sufficient Notice of the Deficiency and Provided Kumar an Opportunity to Remedy or Explain the Deficiency.
Kumar argues that Commerce did not provide adequate notice that the information Kumar offered was deficient and did not provide an opportunity to remedy that deficiency. See Pl.‘s Br. at 19. Kumar notes that its last filing was on February 15, 2023, 135 days before Commerce issued its preliminary determination. See id. at 18; Second Suppl. Questionnaire Resp. (filed on Feb. 15, 2023); Mem. from Y. Chun to B. Davis, re: Preliminary Application of Adverse Facts Available to Kumar Industries (Dep‘t Com. June 29, 2023), P.R. 181. Kumar also notes that Commerce issued supplemental questionnaires to Avid-the other mandatory respondent-through July 26, 2023. See Pl.‘s Br. at 18. Thus, according to Kumar, Commerce failed to provide notice that Kumar‘s responses were inadequate or an opportunity to remedy its responses. See id. at 19. The Government counters that Commerce issued two supplemental questionnaires that both explained the deficiency with Kumar‘s responses and indicated how Kumar could remedy the problem. See Gov‘t Br. at 16. Additionally, the Government argues, Commerce reminded Kumar of the consequences of a lack of cooperation. See id. at 17 (citing Second Suppl. Questionnaire at 4).
Recall that where a submission is deficient, Commerce must “promptly inform the person submitting the response of the nature of the deficiency and shall, to the extent practicable, provide that person with an opportunity to remedy or explain the deficiency.”
Recall that Commerce asked Kumar about its affiliation three times, explained twice that its previous responses were deficient, and detailed how Kumar could remedy the deficiencies. See Initial Questionnaire at A-3; First Suppl. Questionnaire at 5; Second Suppl. Questionnaire at 4. In its Second Supplemental Questionnaire, Commerce noted that Kumar did not provide any documents supporting its assertion of non-affiliation and explicitly requested support containing more than unsubstantiated statements of non-affiliation. See Second Suppl. Questionnaire at 4. Kumar was aware of the consequences of non-cooperation based on the prior administrative reviews, where Commerce applied adverse inferences based on information contradicting Kumar‘s claims of non-affiliation. See 2018-20 IDM at 28-32; 2020-21 IDM at 5-6. Commerce stressed to Kumar that “[i]n the previous administrative reviews, [it was] unable to determine Kumar‘s affiliation status with these companies because Kumar failed to cooperate to the best of its ability in response to [Commerce‘s] multiple requests for information . . . [and] [a]s a result,” Commerce used an adverse inference in selecting among facts otherwise available. Second Suppl. Questionnaire at 4.
Kumar suggests that Commerce should have done more, stating that “[t]o the extent that there were any deficiencies, they were the result of insufficient questions from the Department.” Pl.‘s Reply at 5. However, as the Government notes, see Gov‘t Br. at 18, Commerce does not have an obligation to provide never-ending questionnaires, see Maverick Tube Corp. v. United States, 857 F.3d 1353, 1361 (Fed. Cir. 2017) (finding that “§ 1677m(d) does not require more” than notice in a supplemental questionnaire); NSK Ltd. v. United States, 481 F.3d 1355, 1360 n.1 (Fed. Cir. 2007) (same). Here, Commerce notified Kumar of the deficiency and provided it an opportunity to remedy or explain the deficiency by indicating that Kumar‘s responses were not sufficient, stating that supporting documentation would remedy the deficiency, and even notifying Kumar of the consequences of non-compliance. See First Suppl. Questionnaire at 5; Second Suppl. Questionnaire at 4. Therefore, Commerce met its obligations to provide notice and an opportunity for remedy under
Kumar correctly notes that “antidumping law is not intended to be applied in a punitive manner.” Pl.‘s Br. at 10. Indeed, “[t]he purpose of the adverse [inference] statute is to provide respondents with an incentive to cooperate with Commerce‘s investigation, not to impose punitive damages.” Essar Steel Ltd. v. United States, 678 F.3d 1268, 1276 (Fed. Cir. 2012) (internal quotation marks and citation omitted). However, “[a] decision based on [an] adverse [inference] is not punitive when determined in accordance with the statutory requirements.” Id. Again, Commerce explicitly asked about Kumar‘s affiliation with Companies A and B twice, notified Kumar of the deficiency in two supplemental questionnaires, and provided multiple opportunities for remedy. See First Suppl. Questionnaire at 5; Second Suppl. Questionnaire at 4. Commerce‘s decision to use an adverse inference is in accordance with the statutory requirements, and thus is not punitive.7
Recall that the weighted average dumping margin is equal to the difference between the normal value, reflecting the price of the product in the home market, and the export price (or constructed export price), reflecting the sale price of the product in the United States. See
According to Kumar, the amount it reported as U.S. duties included antidumping and countervailing duties for every transaction. See Kumar‘s Case Br. at 44-46; see also Pl.‘s Br. at 23-24. Thus, Kumar asked Commerce to remove the antidumping and countervailing duties from its reported U.S. duties for every transaction before reducing the export price by the amount of U.S. duties as required by
Because Kumar provided supporting documentation and a sample calculation demonstrating it included antidumping and countervailing duties in the amount of U.S. duties for only three transactions, see Kumar‘s Case Br. at 44-46, Commerce‘s decision to remove the antidumping and countervailing duties from only these transactions was supported by substantial evidence and in accordance with law.9 Commerce appropriately decided not to subtract the duties for any of the other transactions because Kumar provided no support for the suggestion that the U.S. duties for these other transactions included antidumping and countervailing duties. Id. In fact, as the Government notes, “the amount of the antidumping and countervailing duties that Kumar alleged is included in the amount of U.S. duties exceeds the total amount of U.S. duties it reported.” Gov‘t Br. at 19-20; see also Kumar‘s Case Br. at 44-46; Mem. from Y.J. Chun to B. Davis, re: Final Application of Adverse Facts Available to Kumar Industries at 2 (Dep‘t Com. Nov. 6, 2023) P.R. 209, C.R. 149 (“Final AFA Mem.“) (listing U.S. duty rate, antidumping and countervailing duty rate Kumar requested be removed, and the difference for each of these transactions). As Commerce noted in its Final AFA Memorandum, removing the antidumping and countervailing duties for these transactions would result in a nonsensical negative U.S. duties amount. See Final AFA Mem. at 2. Thus, Commerce reasonably determined that there was not sufficient evidence on the record that the U.S. duties for the remaining transactions included antidumping and countervailing duties.
Kumar suggests that Commerce should have asked for further clarification, stating that “[w]hile it is unfortunate that the Department did not ask Kumar a question about the duty field, it is also clear that for multiple entries the duty field is overstated.” Pl.‘s Reply at 6. However, as noted above, see supra Section I.B, it is the respondent‘s burden to create an adequate record and provide supporting information for its claims. See NTN Bearing, 997 F.2d at 1458-59 (“The burden of creating an adequate record lies with respondents and not with Commerce.“). Kumar provided support for only three transactions. See Kumar‘s Case Br. at 44-46. Commerce thus appropriately subtracted antidumping and countervailing duties from the U.S. duties for those three transactions where Kumar sufficiently demonstrated that the U.S. duties included antidumping and countervailing duties. Therefore, Commerce‘s calculation of Kumar‘s rate was supported by substantial evidence and in accordance with law.
CONCLUSION
For the foregoing reasons, Commerce‘s Final Results of the 2021-22 administrative review of the antidumping order on imports of glycine from the People‘s Republic
SO ORDERED.
/s/ Gary S. Katzmann
Gary S. Katzmann, Judge
Dated: April 23, 2025
New York, New York