Recent CAFC Opinion Over Use of AFA in Separate Rate Calculation Not Applicable, Exporter Says
PrimeSource Building Products distinguished a recent U.S. Court of Appeals for the Federal Circuit decision affirming the Commerce Department's ability to use adverse facts available in its separate rate calculation from its case at issue at the Court of International Trade. Submitting a notice of supplemental authority to rival the one submitted by the antidumping petitioner, PrimeSource said that the recent Federal Circuit opinion in Bosun Tools v. U.S. is not applicable to its case since the appellate court noted an increasing trend in past rates calculated for one of the separate rate respondents that justified the use of AFA. No such trend exists in PrimeSource's case, the brief said.
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In Bosun Tools, the Federal Circuit said that the Commerce Department can calculate the separate rate respondent's dumping margin by averaging an adverse facts available rate and a de minimis rate in an antidumping duty review (see 2201100026). To show that the AFA rate was reasonably reflective of the separate rate respondents' dumping margins, the Federal Circuit pointed to past individually calculated rates that increased over the past administrative reviews. AD petitioner Mid Continent Steel & Wire argued that the Federal Circuit's ruling shows that Commerce was properly supported when it calculated the separate rate by averaging the AFA and de minimis rates (see 2201110043).
"Here, Commerce’s non-selected respondents’ rate based on AFA was not reasonable because there is no increasing trend in the past rates calculated for Liang Chyuan Industrial Co., Ltd. ('LC') that supports the dramatic increase from the 2.54% dumping margin calculated for LC as a mandatory respondent in the third administrative review on one day to the 78.17% dumping margin assigned to LC as a non-selected respondent in the fourth review for entries the very next day and later," PrimeSource said.