Appeal from the United States Court of International. Trade in No. 11-CV-0401, Senior Judge Richard W. Gold-berg.
PETER J. KOENIG, Squire Sanders (U.S.) LLP, of Washington, DC, argued for plaintiff-appellant.
ERIC E. LAUFGRABEN, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee, United States. With him on the brief were STUART F. DELERY, Assistant Attorney General, JEANNE E. DAVIDSON, Director, and PATRICIA M. MCCARTHY, Assistant Director. Of counsel on the brief was JUSTIN R. BECKER, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, United States Department of Commerce, of Washington, DC.
GRACE W. KIM, Kelley Drye & Warren LLP, of Washington, DC, argued for defendant-appellee, Carpenter Technology Corporation. With her on the brief were LAURENCE J. LASOFF and MARY T. STALEY.
Before NEWMAN, DYK, and REYNA, Circuit Judges.
Reyna, Circuit Judge.
Mukand, Ltd. (" Mukand" ) appeals a decision of the Court of International Trade affirming the Department of Commerce's application of adverse facts available in its calculation of an antidumping duty on Mukand's imports of stainless steel bar from India. The Department of Commerce applied adverse facts available (" AFA" ) after Mukand failed to provide production cost data broken down by product size as requested on five separate occasions. For the reasons set forth below, we affirm.
Upon the receipt of a proper request, the Department of Commerce (" Commerce" ) is required to review and reassess its antidumping duty orders at least once each year. 19 U.S.C. § 1675(a). On March 30, 2010, at the request of domestic interested parties, Commerce initiated the current administrative review on an outstanding antidumping duty order on stainless steel bar from India for the period of February 1, 2009, through January 31, 2010. As part of this review, Commerce
issued to Mukand a series of questionnaires designed to obtain information necessary to calculate Mukand's dumping margin. These questionnaires asked Mukand to provide, among other things, its costs of producing different sizes of stainless steel bar. Product size is one of six product characteristics determined by Commerce to be significant in differentiating between steel bar products, the other five being general type of finish, grade, re-melting, type of final finish, and shape. Commerce thus sought product-specific cost information to ensure that it compared similar products in its price-to-price comparisons, calculated a correct difference-in-merchandise adjustment, and arrived at an accurate constructed normal value for Mukand's merchandise.
Upon receiving Mukand's response to its initial questionnaire, Commerce discovered that Mukand assigned the same production costs across all product sizes. Mukand did not explain its rationale for this approach despite the questionnaire's request to " quantify and explain" any belief that size, or any other physical characteristic, is an insignificant cost factor. Commerce informed Mukand that it did not consider this approach to be reasonable and asked that Mukand produce size-specific cost information, regardless of whether it tracked such information in its normal accounting records. Alternatively, Commerce again asked Mukand to " quantify and explain" any reasons for believing that size-based cost differentials are insignificant. Mukand responded with a brief statement that where product grade and type of finishing operation are the same, direct material costs do not vary with size. In a second supplemental questionnaire, Commerce reiterated its need for either size-specific cost estimates or a more thorough narrative quantifying and explaining Mukand's belief that size is not a cost factor. Again, Mukand asserted without detailed support that size does not affect costs when all other physical characteristics remain the same. In a third supplemental questionnaire, Commerce again reiterated its need for size-specific cost information, noting:
[I]t is not necessary for Mukand to calculate [control number (" CONNUM" )] specific costs in its normal books and records in order to differentiate cost differences between CONNUMS that have different physical characteristics when reporting to the Department as long as the cost differences reported ...