Importer Says CAFC Recent PrimeSource Ruling Didn't Overrule Bestpak

U.S. importer CME Acquisitions argued that the U.S. Court of Appeals for the Federal Circuit's recent decision in PrimeSource Building Products v. U.S. didn't overrule the appellate court's decision in Yangzhou Bestpak Gifts & Crafts Co. v. U.S. regarding how the Commerce Department sets the non-selected respondents' antidumping duty rate (CME Acquisitions v. United States, CIT # 24-00032).

In Bestpak, CAFC required Commerce's calculation of non-selected respondent rates to be "fair, accurate, and bear some relationship to their actual dumping margins," CME said. Earlier this month, the Federal Circuit said the burden is on the exporter to show that Commerce's use of only adverse facts available in setting the non-selected respondents' rate is unreasonable (see 2408070020). The court said in PrimeSource that the agency's use of the "expected method" in this scenario, whereby Commerce uses a weighted average of the AFA rates, isn't presumptively unreasonable.

Filing a motion for judgment on Aug. 21 at the Court of International Trade, CME said PrimeSource "did not overrule Bestpak." The appellate court distinguished the two cases by saying Commerce didn't use the expected method in Bestpak since it only used a simple average of a de minimis and an AFA rate to set the all-others rate. In the present case, "Commerce did not use a weighted average to calculate the ADD margins of the 'all other' companies," the brief said.

CME added that the Supreme Court's recent decision in Loper Bright Enterprises v. Raimondo, which rejected the Chevron principle of deferring to federal agencies' interpretations of ambiguous statutes, rejects the PrimeSource rationale. It's the "solemn duty of the Judiciary" to "say what the law is," and Loper Bright bars CIT from "affirming Commerce’s decision merely upon finding that the government’s statutory interpretations are 'reasonable,'" the company said. The importer claimed Loper Bright clarified it makes no sense to speak of a "permissible" interpretation that's not the one the court concludes is best.

The importer said applying the principles of Bestpak should lead the trade court to reject the use of a simple average of AFA rates in the 2021-22 review of the AD order on stainless steel sheet and strip in coils from Taiwan for the non-selected respondents. Looking to the past 10 AD reviews on the order, Commerce set the AD rates for 15 respondents ranging from zero percent to 4.3%.

As a result, giving the non-selected respondents a 21.1% AFA rate cuts against "basic principles of 'fairness or accuracy' and that 'rate determinations for nonmandatory, cooperating separate rate respondents must also bear some relationship to their actual dumping margins,'" the brief said. CME rhetorically asked the court how a 21.1% total AFA rate applied to companies that have failed to cooperate has "any relationship to the actual dumping margins of cooperative respondents when the Department calculated rates for 15 cooperative mandatory respondents in [administrative review] AR 21-22 of the ADD Order on Stainless Steel from Taiwan never exceeded 4.30 percent?”