Antidumping Petitioner Backs Commerce's Flip to Weighted Average for All-Others Rate in ADD Review
The Court of International Trade should sustain the Commerce Department's decision to find the all-others rate in an antidumping duty review using a weighted average of the respondent's rates rather than a simple average, antidumping duty petitioner Mid Continent Steel & Wire said in Jan. 12 comments to the trade court. In its defense of Commerce's actions, Mid Continent cited a recent U.S. Court of Appeals for the Federal Circuit opinion which held that Commerce can use an adverse facts available rate when finding the separate respondents' dumping margins (see 2201100026) (Pro-Team Coil Nail Enterprise v. United States, CIT #18-00027).
The case stems from a challenge to the first administrative review of the antidumping duty order on certain steel nails from Taiwan in which lead plaintiff Pro-Team Coil Nail Enterprise and Bonuts Hardware Logistics were selected as mandatory respondents. After Bonuts said it wouldn't participate, Unicatch was tapped as the replacement. In the final results of the review, Commerce picked the mandatory respondents' rates using total adverse facts available and selected the highest dumping margin alleged in the petition.
Following litigation, Commerce calculated a company-specific dumping margin of zero percent for Pro-Team but continued with a total AFA rate of 78.17% for Unicatch. The agency then took a simple average of all three respondents' rates, including Bonuts' AFA rate, to derive the non-individually examined respondent margin, arriving at 39.09%. In the case's second opinion, Chief Judge Mark Barnett instructed Commerce to corroborate the petition rate, which the agency did using Pro-Team's transaction-specific margins. When Commerce simply averaged the three mandatory respondents' rates again, it gave the non-individually examined respondents a 52.11% rate.
Barnett, in his most recent opinion, sustained Commerce's corroboration of the petition rate but remanded Commerce's departure from the expected method for finding the all-others rate (see 2108090026), the expected method being a weighted average of the respondents' rates, while Commerce used a simple average. The agency said it dropped the expected method because it didn't have sales value data from Bonuts. While that would normally be grounds to depart from the expected method, Barnett said, in this case Commerce has CBP import volume data that can be substituted for the missing sales value data.
On remand, Commerce used the CBP data to calculate the weighted average (see 2110140027). Mid Continent backed this position in its brief to CIT, citing the Federal Circuit decision again allowing the use of AFA in calculating the separate rates -- an opinion issued just two days prior. One of the plaintiffs, Hor Liang, argued that the resulting 35.30% rate is not reflective of its potential dumping margins.
"Hor Liang’s argument is without merit," Mid Continent said. "The statute, the Statement of Administrative Action ('SAA'), and judicial precedent all support calculating the all-others rate using the expected method here, i.e., a weighted average of the two AFA rates and the zero percent margin received by the three mandatory respondents in this review." The petitioner then went through the Federal Circuit's history on this issue, distinguishing instances in which the court found Commerce's all-others rate calculations to be unreasonable from the review at issue.
Mid Continent also blasted Hor Liang's argument that Commerce should exclude Bonuts' AFA rate since Bonuts is allegedly not a representative respondent. "This argument is without merit and would in fact run afoul of the statutory language, the legislative history, and judicial precedent, none of which supports the exclusion of a mandatory respondent’s margin from the calculation of the all-others rate simply because Bonuts declared itself to be non-representative of Taiwanese nail producers," the brief said.