AD Respondent Moves to Toss Case on Affiliation Question
Antidumping duty respondent Octal moved to dismiss its challenge of the Commerce Department's decision to find that the company was affiliated with one of its U.S. customers, among other things. On Feb. 1, Commerce released its final determination in the underlying AD investigation terminating the order, leading Octal to petition to dismiss the case (Octal v. U.S., CIT # 20-03697).
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The case stems from an antidumping duty investigation on polyethylene terephthalate (PET) sheet from Oman in which Octal was the only respondent. The company claims 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. However, Octal wanted a longer remand period so that Commerce could reopen the record to allow additional facts to be added to counter the affiliation finding (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 it still refused to accept the new submissions from Octal.
Most recently in the case, Octal filed a notice of supplemental authority over a U.S. Court of Appeals for the Federal Circuit opinion in which the court said that Commerce improperly used adverse facts available over a respondent's reporting of service-related revenue (see 2206010054). 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.
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."