Barcode : 4326250-02 A-533-889 REV - Admin Review 12 / 13 / 19 - 5 / 31 / 21
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 .” 120 Furthermore , affirmative evidence of bad faith on the part of a respondent is not required before Commerce may make an adverse inference . 121 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 . 122
The 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 .” 123 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 . 124 The CAFC acknowledged , however , that while there is no willfulness requirement , “ deliberate concealment or inaccurate reporting ” would certainly be sufficient to find that a respondent did not act to the best of its ability , although it indicated that inadequate inquiries to respond to agency questions may suffice as well . 125 Hence , compliance with the “ best of its ability ” standard is determined by assessing whether a respondent has put forth its maximum effort to provide Commerce with full and complete answers to all inquiries in a segment of a proceeding . 126
As an initial matter , as discussed above in Comment 2 , the supplemental questionnaire response that was rejected was an opportunity for Antique Group to remedy the deficiencies that Commerce identified in the initial questionnaire responses . Arguments that Commerce failed to provide Antique Group an opportunity to remedy deficiencies in its questionnaire responses are misleading as this opportunity was , in fact , provided . Whether a respondent elects to comply with the deadlines for submitting responses to deficiency questionnaires is not Commerce ’ s responsibility . Moreover , beyond providing the respondent an initial chance to address any deficiencies within a reasonable amount of time , there is no obligation under section 782 ( d ) of the Act that requires Commerce make additional concessions , should a respondent fail to submit responses in a timely manner . In fact , section 782 ( d )( 2 ) of the Act is clear that , in the event that a deficiency response is not submitted within the applicable time limits , Commerce may disregard all or part of the original and subsequent responses . While parties appear to imply that section 782 ( d ) of the Act somehow obligates Commerce to provide Antique Group with an
120
See 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 ).
121
See , e . g ., 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 ).
122
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 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 ).
123
See Nippon Steel , 337 F . 3d at 1382 .
124
Id ., 337 F . 3d at 1380 .
125
Id .
126
Id ., 337 F . 3d at 1382 .
27 Filed By : David Lindgren , Filed Date : 1 / 3 / 23 1:27 PM , Submission Status : Approved