CIT Finds Fault with Separate Rates, China-wide Treatment in China Steel Grating

July 19, 2012 by Brian Feito|Penalties and Courts

The Court of International Trade remanded the final determination in the antidumping duty investigation of certain steel grating from China (A-570-947), and ordered the International Trade Administration to (1) redetermine the AD margin for non-individually investigated separate rate recipients Yantai Xinke Steel Structure and Ningbo Haitian International; and (2) determine a separate rate for mandatory respondent Ningbo Jiulong Machinery, which the ITA had determined to be part of the China-wide entity when it applied adverse facts available (AFA). CIT also sustained the ITA’s decision to apply AFA to Jiulong.

(In the preliminary determination of this investigation, the ITA assigned an AD rate of 14.36% to Jiulong, and accordingly assigned the same AD rate to the separate rate respondents (including Xinke and Haitian) because Jiulong was the sole individual respondent and therefore had the only AD rate upon which to base the other separate rates. Near the end of the investigation, the ITA found that Jiulong had submitted surrogate value information it knew to be false and/or unreliable. The ITA said it couldn’t rely on any information provided by Jiulong, including the information it submitted to establish its separate rate, and in the final determination found Jiulong to be in the China-wide entity with an AD rate of 145.18%. With no individual respondent upon which to base Xinke and Haitian’s separate rates, the ITA assigned them an AD rate of 136.76% based on petition rates that were derived from surrogate values chosen by the petitioners.)

CIT Says Initiation, Determinations Have Different Standards of “Reliability”; Remands Separate Rates

Xinke and Haitian argued that, as Xinke submitted surrogate value data during the investigation the ITA should have relied on this data to calculate their AD rates, particularly because of deficiencies found in petitioners’ separate rate data. CIT agreed. The ITA provided no explanation for why it only relied on the petition rates beyond a simple declaration that it was “reasonable.” CIT also found unpersuasive the ITA’s argument that CIT had previously upheld the method the ITA used in a previous case. In the case to which the ITA referred, Bristol Metals LP v. United States, no party had placed any other surrogate value data on the record, CIT said.

Finally, the ITA said it was not required to reexamine the petition rates because they were already determined reliable enough the initiate the investigation. CIT said, among other things, that the standard is different in initiations and final determinations. In initiations, the ITA need only find that the petition is based upon factual information reasonably available to petitioners, and as such the petition constitutes nothing more than an allegation of dumping, not a determination of dumping.

ITA Must Specifically Find Separate Rate Response Deficient to Justify China-wide Treatment

CIT also found the ITA’s decision to put Jiulong in the China-wide entity to be unsupported. The ITA’s determination that the information Jiulong submitted to determine its separate rate was unreliable because of its allegedly false submissions concerning its factors of production was unreasonable, CIT said. Because the ITA made no finding that Jiulong’s questionnaire responses concerning its separate rate status were deficient in any respect, the ITA’s conclusion that the company was part of the China-wide entity was unsupported.

(Slip Op. 12-95, dated 07/18/12, Judge Eaton)