Separate Rate Companies in AD Case Push Back on Use of AFA, de Minimis in Rate Calculation
The Commerce Department was not justified in using adverse facts available in an antidumping duty review on respondent Xinjiang Meihua Amino Acid Co. since the respondent was fully cooperative and there was no gap in the record, consolidated plaintiff Jianlong Biotechnology Co. argued in a July 19 brief at the Court of International Trade. Further, there is not record evidence supporting the fact that the 77.04% dumping margin Commerce assigned to the non-individually examined companies "reflects in any way the dumping rate of the cooperative separate rate respondents," Jianlong Biotechnology argued (Meihua Group International Trading (Hong Kong) v. United States, CIT Consol. #22-00069).
Joining the consolidated plaintiff in filing an argument at the trade court were other separate rate respondents, Deosen Biochemical (Ordos) and Deosen Biochemical (Deosen, collectively). Deosen also argued that the separate rate was not reasonably reflective of its potential dumping margin.
The case contests Commerce's 2019-20 administrative review of the AD order on xanthan gum from China. In the review, Commerce said that Meihua withheld requested information, including the unit amount of customs duties paid on the subject merchandise. The respondent said in the complaint that it did no such thing and that the duties were reported. As a result, Meihua argued that the application of AFA was unlawful (see 2204060079).
The consolidated plaintiffs in the action then filed their motions for judgment, further arguing against the use of AFA. "In this review, there was no gap in the record and Meihua was fully cooperative because Meihua provided all necessary information and did not withhold any information, (2) Commerce did not identify any information that was not provided upon request by Meihua, and (3) Meihua acted to the best of its ability to comply with all information requests from Commerce," the brief said. "As such, Commerce’s application of AFA to Meihua was unsupported by substantial evidence and contrary to law."
Where the separate rate is concerned, the consolidated plaintiffs argued that Commerce's method of averaging a de minimis and an AFA rate was unlawful. "Evidence in the administrative record indicates that this rate is not reasonably reflective of Deosen’s potential dumping margin for at least three reasons," the brief said. "... The record shows that Deosen exported limited quantities of subject merchandise to the United States during the POR and is a relatively small exporter in comparison to the mandatory respondents. Thus, Deosen submitted to Commerce that it had no incentive to sell its product at a lower price than before or than its competitors."