Commerce Should Have Reopened Record Over Affiliation Question in AD Review, Plaintiff Argues

The Commerce Department should have reopened the record during its voluntary remand period to consider the question of affiliation between antidumping duty respondent OCTAL and one of its U.S. customers, OCTAL told the Court of International Trade in a Dec. 22 reply brief. Since Commerce raised the issue so late in the AD review, the record wasn't "high quality" and OCTAL didn't have a chance to properly respond to the affiliation accusations, OCTAL said (OCTAL v. U.S., 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 claims 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 disagreed 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.

In its reply brief over the remand results, OCTAL said that Commerce's affiliation determination was an "11th hour" decision that created a "Catch-22 situation" since the agency failed to raise the issue until it was too late for OCTAL to respond. "And then when challenged in court, Commerce uses its original deadlines as an excuse to continue ignoring important factual information during remand," the brief said. "That is not the purpose of finality and that is an abuse of discretion."

OCTAL argued that the Department of Justice's defense mischaracterized the record. DOJ, in its brief, discussed an exhibit that contained the contract between OCTAL and its U.S. customer, but said nothing about the "accompanying narrative OCTAL had provided that specifically discussed contract sales and identified this possible concern for Commerce," the brief said. The respondent further argued that DOJ ignored the rest of the record, including comments OCTAL submitted more than a month before the preliminary determination.

"We urge the Court to step back and consider the implication of Defendant’s theory," the brief said. "Under Defendant’s approach, a respondent would have to assume that every customer might be related and every supply contract could result in control. A respondent would have to assume the worst, and prove the absence of affiliation for every customer. Such an approach is absurd, and improperly shifts the burden regarding affiliation issues."