8th Amendment Doesn’t Apply to AD/CVD Proceedings, US Says
The U.S. responded Feb. 7 to an Italian pasta exporter’s argument that application of excessive adverse facts available violates the Eighth Amendment, saying the amendment “has no bearing” on antidumping and countervailing duty proceedings. It explained that the U.S. Court of Appeals for the Federal Circut has found the use of AFA to be “remedial, not punitive” (Pastificio Gentile S.r.l. v. U.S., CIT # 24-00037).
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“This argument has no reasonable basis and has been previously rejected by the Court,” it said.
Exporter Pastificio Gentile, a mandatory respondent in the department’s countervailing duty administrative review on its products, saw its CVD rate jump from lower than 2% to 88.67% with the application of AFA for failing to submit “certain data for certain small technically related entities” (see 2409090039). It brought its case to the Court of International Trade calling this an abuse of discretion and a violation of the Eighth Amendment. It also said it would be a violation of the Rules of Professional Responsibility should the government’s attorneys argue otherwise.
The U.S. said in turn that the Commerce Department made clear to Pastificio that it had to identify any affiliates early in the proceeding, but the pasta exporter failed to do so.
Pastificio Gentile claimed that Commerce “should have been aware” of several affiliates because they were mentioned in exhibits and later questionnaire responses, the U.S. said. But the exporter could only point to “one exhibit -- numbering over 600 pages in length -- mentioning the affiliates,” it said.
“Gentile cites no legal authority for the concept that Commerce is required to examine every single piece of record evidence for information unrelated to the purpose for which the evidence was submitted,” the government said.
Failing to disclose multiple affiliates is not a “minor” error, despite what Pastificio Gentile argues, it said.
That failure also justified Commerce’s use of total AFA for the exporter, the government said, as it “called into question whether all subsidies were reported, as well as the accuracy and completeness of all of Gentile’s questionnaire responses.”
In saying that Commerce should have accepted the affiliation information during verification, when the department discovered it, Pastificio Gentile was essentially arguing that Commerce should allow exporters to provide it new information at verification and “assume” it wouldn’t impact the rest of the proceeding, the government said. This is neither “reasonable nor supportable,” it said.