United States Court of International Trade

Court Sustained Commerce’s Use of Adverse Facts Available

Before the Court in Shandong Dongfang Bayley Wood Co. v. United States et. al., Slip Op. 19-45, Court No. 18-00020 (April 12, 2019) was plaintiff’s objections to Commerce’s determinations in the countervailing duty investigation of certain hardwood plywood products from the China.  Plaintiff specifically argued that Commerce’s determination to apply facts available with an adverse inference (“AFA”) to plaintiff was not supported by substantial evidence, that Commerce’s determination not to verify certain submissions was not in accordance with the law and that Commerce’s determination to disregard Plaintiff’s submitted information was not in accordance with the law and was arbitrary and capricious. For the following reasons, the Court sustained Commerce’s determinations.

If Commerce “finds further that an interested party has failed to cooperate by not acting to the best of its ability to comply with a request for information from the agency, then Commerce may use an inference that is adverse to the interests of that party in selecting from among the facts otherwise available.” Id. at 6. Commerce found that Bayley “failed to cooperate by not acting to the best of its ability to comply with the Department’s requests for information by not disclosing the full extent of its affiliations as required by the initial questionnaire.” Id. at 7. The Court said based on this that “Commerce’s decision to apply AFA was reasonable.” Id. at 9. In regards to Commerce’s determination not to verify plaintiff’s questionnaire responses, “Commerce need not consider information submitted by an interested party if the information is so incomplete that it cannot serve as a reliable basis for reaching the applicable determination.” Id. at 9-10.  The Court said “it was reasonable to suspect Bayley’s responses were so incomplete as to not serve as a reliable basis for reaching the applicable determination.” Id. at 10. The final issue was Commerce’s decision not to consider information submitted y plaintiff. If Commerce determines that a response to a request for information does not comply with the request, Commerce “shall promptly inform the person submitting the response of the nature of the deficiency and shall, to the extent practicable, provide that person with an opportunity to remedy or explain the deficiency.” Id. The Court said “Commerce satisfied its burden … both to inform Bayley that Bayley’s affiliation response was deficient and to allow Bayley to correct its response after Commerce issued the first supplemental questionnaire.” Id. at 12.

Court Denied Motion for Reconsideration

Before the Court in ABB, Inc. v. United States et. al., Slip Op. 19-46, Court No. 16-00054 (April 12, 2019) was a motion for reconsideration filed by Hyundai Heavy Industries, Co., Ltd. and Hyundai Corporation, USA (collectively “Hyundai”), the defendant-intervenors involved in the case. Hyundai requested the court reconsider its decision sustaining Commerce’s use of facts available (“AFA”) in applying the agency’s capping methodology to service-related revenue with respect to transactions based on communications between Hyundai and Hyundai’s unaffiliated customers. For the following reasons, the motion was denied.

Under USCIT Rule 59(e), “the court may consider a motion to alter or amend a judgment, which is served no later than 30 days after the entry of the judgment.” Id. at 3. “Judgment includes a decree and any order from which an appeal lies. As a general rule, an order remanding a matter to an administrative agency for further findings and proceedings is not final, and therefore, not appealable.” Id. at 3-4. In addition, the Court has the discretion to reconsider a prior decision under USCIT Rule 54(b) “as justice requires, meaning when the court determines that reconsideration is necessary under the relevant circumstances.” Id. at 5. The Court said its prior judgement was an interlocutory order, and therefore not final under Rule 59(e). The Court also dismissed further arguments under rule 54(b), saying “Hyundai’s argument lacks merit because Commerce requested and was granted a remand to reconsider the record on this issue and ensure that it was properly applying its revenue-capping methodology.” Id. at 8. The motion was denied.