Recent CIT Opinion Relevant for Case Against Commerce's Lack of Notice in AD Case, Exporters Tell CIT
A recent Court of International Trade opinion on the use of adverse facts available in an antidumping duty case "addresses nearly identical facts" as in an AD case brought by plaintiffs Meihua Group International Trading and Xinjiang Meihua Amina Acid Co. (Meihua), the plaintiffs said in a Dec. 22 notice of supplemental authority. The recent CIT case, Saha Thai Steel Pipe v. U.S., saw the court rule that the Commerce Department improperly used AFA since the agency failed to notify the respondent about the supposed deficiencies in its submissions (see 2212020060) (Meihua Group International Trading (Hong Kong) v. United States, CIT Consol. # 22-00069).
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Meihua's case contests the 2019-20 administrative review of the AD order on xanthan gum from China. In the review, Commerce said that Meihua withheld requested information, including the unit amount of customs duties paid on the subject merchandise. The respondent said in the complaint that it did no such thing and that the duties were reported. As a result, Meihua argued that the application of AFA was unlawful (see 2204060079). The respondent said the agency failed to notify it of a deficiency and give the company a chance to fix it.
"Saha Thai addresses nearly identical facts as here," Meihua said. Not only is the case noteworthy since it involves Commerce's failure to notify the respondent of a deficiency, but CIT in that case noted that an opinion Commerce relies on, Papierfabrik Aug. Koehler v. U.S., is limited to its specific facts by two U.S. Court of Appeals for the Federal Circuit opinions. "The Court in Saha Thai noted how Commerce’s reliance on Papierfabrik was misplaced: ‘Commerce attempts to wedge this case into Papierfabrik’s framework through overreliance on the Federal Circuit’s use of the phrase "intentionally incomplete," but without a finding of outright fraud,’" the notice said.