Barcode : 4259556-02 A-533-889 REV - Admin Review 12 / 13 / 19 - 5 / 31 / 21
2022 , Commerce received further comments , additional requests for reconsideration , and requests of Antique Group ’ s second supplemental questionnaire response . 35
On the basis that Antique Group ’ s second supplemental questionnaire response was untimely filed , and the respondent failed to notify Commerce that it was having difficulty providing the information or request an extension , we preliminarily find that necessary information is not available on the record of this proceeding . As such , we conclude that Antique Group withheld information requested by Commerce , failed to provide information by the specified deadlines , and significantly impeded the proceeding by failing to respond to our supplemental questionnaire . Accordingly , pursuant to sections 776 ( a )( 1 ), and 776 ( a )( 2 )( A ) - ( C ) of the Act , we are relying upon facts otherwise available to determine a preliminary dumping margin for Antique Group .
B .
Use of Adverse Inferences
Section 776 ( b ) of the Act provides that , if Commerce finds that an interested party has failed to cooperate by not acting to the best of its ability to comply with a request for information , Commerce may use an inference adverse to the interests of that party in selecting the facts otherwise available . In addition , the SAA explains that Commerce may employ an adverse inference “ to ensure that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully .” 36 Furthermore , affirmative evidence of bad faith on the part of a respondent is not required before Commerce may make an adverse inference . 37 It is Commerce ’ s practice to consider , in employing adverse inferences , the extent to which a party may benefit from its own lack of cooperation . 38
The U . S . Court of Appeals for the Federal Circuit ( CAFC ), in Nippon Steel , provided an explanation of the meaning of failure to act to “ the best of its ability ,” stating that the ordinary meaning of “ best ” means “ one ’ s maximum effort ,” and that “ ability ” refers to “ the quality or state of being able .” 39 Thus , the statutory mandate that a respondent act to the “ best of its ability ” requires the respondent to do the maximum that it is able to do . 40 The CAFC
35
See DSG ’ s Letter , “ Request for Limited Acceptance of Submission ,” dated June 8 , 2022 ; see also Antique Group ’ s Letter , “ Request For Reconsideration and Request for Extension to File Out of Time ,” dated June 10 , 2022 ; Petitioner ’ s Letter , “ Request For Reconsideration and Request for Extension to File Out of Time ,” dated June 17 , 2022 ; and Memorandum , “ Letter from Leading Builders of America ,” dated June 17 , 2022 .
36
See Statement of Administrative Action Accompanying the Uruguay Round Agreements Act , H . R . Rep . No . 103- 316 , Vol . 1 ( 1994 ) ( SAA ), at 870 ; see also Certain Polyester Staple Fiber from Korea : Final Results of the 2005- 2006 Antidumping Duty Administrative Review , 72 FR 69663 , 69664 ( December 10 , 2007 ).
37
See , e . g ., Nippon Steel Corp . v . United States , 337 F . 3d 1373 , 1382-83 ( Fed . Cir . 2003 ) ( Nippon Steel ); Notice of Final Determination of Sales at Less Than Fair Value : Circular Seamless Stainless Steel Hollow Products from Japan , 65 FR 42985 ( July 12 , 2000 ); and Antidumping Duties ; Countervailing Duties , 62 FR 27296 , 27340 ( May 19 , 1997 ).
38
See , e . g ., Steel Threaded Rod from Thailand : Preliminary Determination of Sales at Less Than Fair Value and Affirmative Preliminary Determination of Critical Circumstances , 78 FR 79670 ( December 31 , 2013 ), and accompanying Preliminary Decision Memorandum ( PDM ), at 4 , unchanged in Steel Threaded Rod from Thailand : Final Determination of Sales at Less Than Fair Value and Affirmative Final Determination of Critical Circumstances , 79 FR 14476 ( March 14 , 2014 ).
39
See Nippon Steel , 337 F . 3d at 1382 .
40
Id ., 337 F . 3d at 1380 .
8 Filed By : Kyle Clahane , Filed Date : 7 / 1 / 22 2:00 PM , Submission Status : Approved