Commerce Illegally Used 1 Respondent to Calculate Separate AD Rate, Exporters Tell CIT
The Commerce Department illegally based the dumping rate for separate rate respondents on a single mandatory respondent, plaintiffs Carbon Activated Tianjin Co. and Carbon Activated Corp. argued in a Jan. 9 complaint at the Court of International Trade. The U.S. Court of Appeals for the Federal Circuit established that Commerce is not allowed to do so, in its August 2022 decision in YC Rubber (North America) v. U.S., the plaintiffs said (Carbon Activated Tianjin Co. v. United States, CIT # 22-00335).
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
The case concerns the 2020-21 administrative review of the antidumping duty order on activated carbon from China. Commerce originally tapped two mandatory respondents in the review, selecting Datong Juqiang Activated Carbon and Jilin Bright Future Chemicals. The agency gave Datong Juqing a zero dumping rate while hitting Jilin Bright with a $0.62 per kilogram dumping margin. The agency then hit separate rate respondents with the same $0.62/kg rate it gave only to Jilin Bright.
The plaintiffs, both separate rate companies, took to the trade court to argue against the move. In YC Rubber (North America) (see 2208290026), the Federal Circuit "held that it was neither reasonable nor lawful for Commerce to base an 'all others' rate on the rate determined for a single mandatory respondent," the complaint said. "The Court indicated, 'Commerce must "determine the weighted average" for that reasonable number [of respondents], and Commerce provides no reason why it would be reasonable to "average" a single rate. We conclude that a "reasonable number" is generally more than one.'... It was unlawful and unreasonable for Commerce to base the 'separate rate' for Carbon Activated Tianjin Co. Ltd. on the basis of the rate determined for a single mandatory respondent."