Commerce Erred in Not Accepting New Facts in Weighing Affiliation Finding, AD Respondent Says

The Commerce Department violated the law in its refusal to accept antidumping respondent OCTAL's new factual information attempting to refute the assumption of affiliation between it and one of its U.S. customers, OCTAL argued in a Sept. 2 brief at the Court of International Trade. Following a voluntary remand proceeding meant to give OCTAL a shot at commenting on the affiliation determination, OCTAL blasted the agency for not including its new facts in the case attempting to prove that it is not affiliated with the U.S. customer with which it has an exclusive supply agreement (OCTAL Inc., et al. v. United States, CIT #20-03697).

The case stems from an antidumping duty investigation into polyethylene terephthalate (PET) sheet from Oman in which OCTAL was the only respondent. The company launched its suit claiming that it didn't get the chance to comment on Commerce's finding that the exporter was affiliated with its U.S. customer. The agency agreed, moving to voluntarily remand the case. OCTAL, though, wanted a longer remand period so that Commerce could reopen the record to allow additional facts to be added to counter the affiliation narrative (see 2104300032).

Commerce opposed this and ultimately used the remand only to receive comments on the affiliation, not new factual information. In its remand results, the agency applied neutral facts available and continued to find affiliation between OCTAL and the unnamed customer (see 2108030059). Commerce said its understanding of the relationship between the two parties evolved, leading to a late finding of affiliation and the need for the remand, but still refused to accept the new submissions from OCTAL.

OCTAL dubbed multiple aspects of Commerce's remand results, including its refusal to accept its new submissions, an abuse of discretion. The court previously has looked at three main questions for determining acceptance of new filings: whether the proffered information was important for Commerce to determine an accurate conclusion, whether Commerce had sufficient time to review the new information and whether the party was diligent in its effort. OCTAL said it clears all three hurdles in pushing for Commerce to accept its submissions.

The respondent spent the bulk of the brief reviewing why Commerce's decision on affiliation is incorrect. Commerce asserts that OCTAL was able to assert “control” over the U.S. price, “even though the agreement at question prevented either party from controlling the U.S. price and benchmarked that price to a neutral third party benchmark,” the respondent said. OCTAL also touched on the purchase of PET flake/scrap, alleged restrictions on business and financing from OCTAL as further evidence of the lack of affiliation.

OCTAL said Commerce did not apply neutral facts available but rather adverse assumptions that led to an incorrect and unfair dumping margin. “On this issue, Commerce’s Remand Redetermination is virtually identical to this same conclusion from the original AD determination,” the brief said. “However, Commerce’s conclusion that it did not apply adverse inferences, but rather only applied 'neutral facts available' is wrong.” Instead, it said, the conclusion was premised on adverse assumptions.