New CAFC Opinion Affirms Use of AFA in Finding Separate AD Rates, Petitioner Tells Trade Court

A recent U.S. Court of Appeals for the Federal Circuit ruling that the Commerce Department can calculate a separate rate respondent's dumping margin by averaging an adverse facts available rate and a de minimis rate appeared in a similar case at the Court of International Trade. In a Jan. 11 notice of supplemental authority, defendant-intervenor Mid Continent Steel & Wire said the Federal Circuit opinion "once again affirmed" that the law allows Commerce to include rates based on AFA in the calculation of a separate rate if all the mandatory respondents have a zero, de minimis or AFA rate (PrimeSource Building Products v. United States, CIT Consol. #20-03911).

The case stems from the fourth administrative review of the antidumping duty order on nails from Taiwan. The plaintiffs, led by PrimeSource Building Products, are arguing that the AFA rate isn't reasonably reflective of the separate rate respondents' rates and thus should be excluded from consideration (see 2110270066). The Federal Circuit, though, in its Jan. 10 decision in Bosun Tools Co. v. U.S., said Commerce can use AFA rates to find the separate rate respondents' margins (see 2201100026). "Therefore, for the reasons discussed in Mid Continent’s response brief, the Federal Circuit’s decision in Bosun provides additional support for the Court to affirm Commerce’s final results in all respects," the notice said.