On February 8, 2013, the U.S. Court of Appeals for the Federal Circuit affirmed a lower court decision in an antidumping case involving imports of magnesium from Russia. In PSC VSMPO-AVISMA v. United States, No. 2012-1076 (Fed. Cir. Feb. 8, 2013) (per curiam), the court upheld a decision by the U.S. Court of International Trade (“CIT”) that had affirmed a Department of Commerce ruling applying an antidumping rate of 43.58 percent to Russian magnesium producer AVISMA’s imports during a 12-month period beginning on April 1, 2007.
The case is noteworthy because AVISMA was participating in an administrative review when it abruptly ceased cooperating, just a few weeks before Commerce officials were to visit AVISMA’s facilities in Russia to verify its sales and cost data. AVISMA had removed its confidential data from the record, then argued that Commerce was required to base its final “facts available” margin on the highest rate previously calculated for AVISMA, which was 21.71 percent from the original investigation in 2005. The petitioner, US Magnesium, argued that Commerce was not required to use the 21.71 percent rate and instead must select a higher rate, so that AVISMA would not benefit from its failure to cooperate. US Magnesium proposed a rate based on AVISMA’s information that remained on the record, including sales and cost information AVISMA had submitted during the previous review. Commerce ultimately chose 43.58 percent, which was AVISMA’s highest transaction-specific dumping margin from the earlier review. Commerce reasoned that allowing AVISMA its preferred rate would provide no incentive for AVISMA (or any other uncooperative respondent) to cooperate in the future.
On appeal, AVISMA argued that Commerce had failed to “corroborate” the 43.58 percent rate. After one remand for further clarification, Judge Jane A. Restani of the CIT held that Commerce had successfully corroborated the 43.58 percent rate, reasoning that, while Commerce experienced some difficulties in its initial corroboration analysis, the statute did not require perfection, particularly when the difficulties were caused by the respondent’s lack of cooperation and its decision to remove necessary sales and cost information from the record. Thus, the CIT held that an uncooperative respondent is not entitled to favorable inferences from Commerce in corroborating the dumping margin chosen as the facts available. The Federal Circuit affirmed the CIT’s decision without opinion. The case is the first in which the Federal Circuit has affirmed the selection of the highest transaction-specific dumping margin as the facts available.