Barcode : 4326250-02 A-533-889 REV - Admin Review 12 / 13 / 19 - 5 / 31 / 21
questionnaire , had Commerce relied on its normal practice of setting the deadline as 5:00 p . m .
� Antique Group ’ s reporting in the instant review is not deficient , and the information requested in the rejected supplemental questionnaire response was only supporting and clarifying information . Because this information is not central to Commerce ’ s dumping margin calculations , Commerce does not need it to calculate a dumping margin . Information submitted in prior questionnaire responses is sufficient for Commerce to calculate an accurate and verifiable margin .
� The CAFC , in Hyundai Electric , explained that Commerce can only use facts otherwise available to fill a gap in the record , rejecting Commerce ’ s use of total AFA where information on the record is reliable . 106
� By applying AFA to Antique Group , Commerce has turned the “ best of its ability ” standard into one that requires perfection on the part of respondents , which is contrary to what the CAFC has found and Commerce ’ s more nuanced approach to minor mistakes . 107
� Application of AFA to Antique Group is unreasonable , excessive and unduly punitive . In accordance with section 516 ( b )( 1 )( B )( i ) of the Act , Commerce must base its decisions on substantial evidence and considering the entire record , explaining the reasoning for its actions . 108
� Commerce abuses its discretion when it issues a decision that is unreasonable based on the facts at hand , and the courts have rejected a “ one penalty fits all ” approach like that used in the Preliminary Results . 109
� Section 782 ( d ) of the Act requires that Commerce provide respondents an opportunity to remedy deficiencies in their responses .
� The CIT has found in BlueScope and China Kingdom that it is unlawful to apply total AFA to a respondent where Commerce does not allow a respondent to remedy a deficiency or where a respondent attempted to correct an error . 110
� In this case , Commerce did not provide Antique Group an opportunity to remedy the information that it deemed was missing from the record prior to applying AFA , in spite of Antique Group ’ s attempts to provide such information . Additionally , Commerce has not explained why it did not request such information .
� The SAA explains that the use of AFA should take into account the extent to which a party might benefit from the lack of cooperation . 111
� Application of total AFA to Antique Group in this case has not been justified because there was never any possibility that Antique Group might benefit from missing the 10:00 a . m . deadline .
106
Id . at 23 ( citing Hyundai Elec . & Energy Sys . v . United States , Court No . 2021-2312 ( Fed . Cir . 2022 ) ( Hyundai Electric )).
107
Id . at 24-25 ( citing Nippon Steel , 337 F . 3d at 1382 ).
108
Id . at 25-26 ( citing F . lli De Cecco Di Filippo Fara S . Martino S . p . A . v . United States , 216 F . 3d 1027 , 1032 ( Fed . Cir . 2000 ) ( De Cecco ); Asociacion Colombiana de Exportadores v . United States , 6 F . Supp . 2d 865 , 880 ( CIT 1998 ); and Burlington Truck Lines , Inc . v . United States , 371 U . S . 156 , 168 ( 1962 )).
109
Id . ( citing Bosun Tools Co . v . United States , 405 F . Supp . 3d 1359 at 1364 ( CIT 2019 ) ( Bosun )).
110
Id . at 27-28 ( citing BlueScope Steel Ltd . v . United States , 548 F . Supp . 3d 1351 , 1359 ( CIT 2021 ) ( BlueScope ); and China Kingdom Imp . & Exp . Co . v . United States , 507 F . Supp . 2d 1337 ( CIT 2007 ) ( China Kingdom )).
111
Id . at 29 ( citing SAA at 140 ).
23 Filed By : David Lindgren , Filed Date : 1 / 3 / 23 1:27 PM , Submission Status : Approved