Recent CAFC Opinion Over Use of AFA Appears as Authority in 2 CIT Antidumping Cases

A recent U.S. Court of Appeals for the Federal Circuit opinion, Hitachi Energy USA v. U.S., appeared in two antidumping duty cases as a supplemental authority, according to two notices at the Court of International Trade. The May 24 opinion said the Commerce Department improperly used adverse facts available over a respondent's reporting of service-related revenue. The court ruled that Commerce's change of methodology and later finding that the respondent failed to provide all the required sales data in the right form cut against the statutory requirement to provide notice and opportunity to remedy a deficiency (see 2205240028). The appellate court said that Commerce has no right to use AFA unless the respondent has failed to provide the requested information after being notified of the deficiency.

Both notices said the opinion was relevant for their actions; both notices were submitted by Daniel Porter of Curtis Mallet-Prevost. In one case, brought by OCTAL, Commerce found affiliation between the lone respondent and one of its U.S. customers (see 2108030059). For this case, OCTAL said that "the Federal Circuit’s treatment of information submitted in the context of a voluntary remand determination in order to cure a defect identified by Commerce is directly relevant to this case and shows that Commerce’s conduct in the remand in this proceeding was contrary to the statute" (OCTAL Inc. v. United States, CIT #20-03697).

The other case, brought by Saha Thai Steel Pipe Public Co., concerns Commerce's use of AFA and rejection of the company's sales and cost databases based on a notice of investigation in an evasion case (see 2106160063). For this matter, Saha Thai said "the Federal Circuit’s treatment of Commerce’s basis for relying on facts otherwise available with an adverse inference is directly relevant to this Court’s consideration of Commerce’s adherence to the strictures of 19 U.S.C. §1677e and the additional controls established by 19 U.S.C. §1677m(d)" (Saha Thai Steel Pipe Public Company v. U.S., CIT #21-00049).