CIT Should Disallow Use of 1 AD Respondent's AFA Rate in 'Weight-Averaging Situation,' Brief Argues

The Court of International Trade should not allow the Commerce Department to apply the highest dumping margin possible by picking only one mandatory respondent in a "weight-averaging situation," plaintiffs, led by Kisaan Die Tech Private, argued in a June 30 motion for judgment. The highest possible rate of the one respondent, determined using adverse facts available, is not reflective of the cooperating respondents' dumping margin, and thus not backed by evidence or law, the plaintiffs said (Kisaan Die Tech Private Ltd. v. U.S., CIT Consol. #21-00512).

The case contests the 2018-19 administrative review of the antidumping duty order on stainless steel flanges from India in which Commerce only tapped Chandan Steel Limited to serve as a mandatory respondent. After the agency found that Chandan failed to cooperate to the best of its ability, Commerce hit the respondent with a 146.25% dumping rate. The agency then applied what it deemed to be its "expected method," by giving all other respondents the AFA rate.

The plaintiffs filed their suit to contest Commerce's actions in the review. The companies argued, among other things, that Commerce's move to assign the other respondents the one AFA rate was not the expected method and actually represents a departure from it. "If the decision to select one mandatory respondent is considered to be a selection rather than a weight-averaging of the mandatory respondent’s dumping margin, then the Department needed to provide an explanation for the departure," the brief said. "It did not do so in this case."

The plaintiffs also had some ideas on how Commerce could set the rate for cooperating non-individually selected respondents. Should the court send the case back to Commerce, it should do so with a statement that the lower value derived from evidence from the less-than-fair-value investigation "is an appropriate reference point for setting the dumping margin for cooperating, non-selected respondents in a future review," the brief said.