Recent changes to the antidumping laws will make it more difficult for uncooperative parties to argue for a reduced dumping rate on appeal. Section 502 of the Trade Preferences Extension Act of 2015 (“the Act”) amends the section of the antidumping statute dealing with the U.S. Department of Commerce’s (“the Department”) application of facts available with adverse inferences, commonly known as “adverse facts available.” This section of the statute provides the agency with an important tool in dealing with uncooperative parties. Where a party does not respond to the Department’s request for information and is found to be uncooperative, the Department may use an adverse inference in choosing from the readily available information to make its determination.
In recent years, the Courts have applied significant scrutiny to the Department’s use of information to determine an uncooperative respondent’s rate—often requiring the Department to show that the rate used reflects the uncooperative party’s “commercial reality" (See e.g., Gallant Ocean (Thailand) Co. v. United States, 602 F.3d 1319, 1323-24 (Fed. Cir. 2010); F. Lii De Cecco Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027, 1032 (Fed. Cir. 2000).). No longer. The amended statute allows the Department to use “any dumping margin from any segment of the proceeding under the applicable antidumping order” including “the highest such rate or margin,” based on certain considerations. 19 U.S.C. § 1677e(d)(1)-(2). Additionally, if the Department uses a rate from a prior proceeding, it will no longer have to corroborate that rate, consider the uncooperative party’s commercial reality, or the rate the respondent might have received had it been cooperative. See 19 U.S.C. § 1677e(c)(2), (d)(3).
All this provides greater clarity, but the Act, as enacted, did not specify when it would begin to apply. In a recently published federal register notice, the Department announced that it would apply the amended “adverse facts available” section of the statute “to determinations made on or after August 6, 2015.” Further, in response to a request made by the Court of Appeals for the Federal Circuit, the Department of Justice, in a public filing, further explained why the amended law would apply to any remand determination made by the Department on or after August 6, 2015.
Whether or not the Courts agree with the government’s position, this key change to the law will improve the ability of the Department in the very near future to deal with uncooperative parties.