Commerce Backs Expected Method in AD Review, Saddles Non-Examined Respondents With AFA Rate
The Commerce Department properly used the expected method in an antidumping duty administrative review when it averaged two adverse facts available rates to apply to the non-individually examined respondents, the Department of Justice argued in an Aug. 16 filing at the Court of International Trade. Due to a U.S. Court of Appeals for the Federal Circuit decision, Albemarle Corp. & Subsidiaries v. United States, which held that the antidumping duty rate for mandatory respondents should be found to be representative unless enough evidence shows otherwise, Commerce properly used the expected method to find the non-individually examined respondents' rate, it said (PrimeSource Building Products, Inc., et al. v. United States, CIT Consol. #20-03911).
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The case stems from the fourth administrative review of the antidumping duty order on nails from Taiwan in which the two largest exporters, Bonuts Hardware Logistics Co. and Create Trading Co., were picked as the mandatory respondents. Bonuts did not respond to Commerce's questionnaires while Create sent in a letter saying it had no U.S. sales due to Commerce's reseller policy. The agency then dropped Create for Pro-Team Coil Nail Enterprise, the next largest exporter. Pro-Team also did not respond to Commerce's questionnaires.
Then, LC, a non-individually examined Taiwanese exporter, requested an individual rate using the company's own data from the previous AD administrative review. The antidumping petitioner, Mid Continent Steel & Wire Inc., opposed this request, saying the filing was untimely and that LC failed the requirements necessary to be a voluntary respondent. Commerce then slapped Bonuts and Pro-Team with total AFA while also holding that LC's "willingness to submit questionnaire responses constituted insufficient grounds for it to be chosen a mandatory respondent, as it was not the next largest exporter of subject merchandise, and that willingness was not a consideration pursuant to the statutory scheme unless the company had fulfilled all the statutory and regulatory criteria for consideration."
In the CIT case over the review, brought initially by PrimeSource Building Products, none of the plaintiffs challenged the AFA rate given to Bonuts and Pro-Team; rather, they went after the use of the expected method. Responding to the plaintiffs' motion for judgment, DOJ said that "there should be no serious question as to the lawfulness of Commerce’s reliance on the expected method." Relying on the Statement of Administrative Action from the Uruguay Round Agreements Act and the Albemarle decision, Commerce's decision was properly backed, DOJ said.
Further, the court has already upheld the total AFA rate along with Commerce's corroboration of the rate using Pro-Team's own transaction-specific data in an opinion from a case over the first administrative review of the AD order, DOJ argued (see 2108090026). PrimeSource primarily attacks the use of the expected method as being an illicit AFA application to the non-individually examined respondents.
"But Commerce did not apply AFA to those respondents," Commerce said. "Rather, Commerce applied AFA to the mandatory, non-cooperative respondents: Bonuts and Pro-Team (an issue which no plaintiffs contest). Then, after determining that substantial evidence did not support a finding that the mandatory respondents were unrepresentative or that the dumping patterns of the mandatory respondents differed significantly from the dumping patterns of the non-selected respondents, Commerce calculated the all-others rate using the expected method -- the averaging of the zero, de minimis, and AFA-based rates assigned to the mandatory respondents."