463 F.Supp.3d 1309
Ct. Intl. Trade2020Background
- In the 7th administrative review of antidumping duties on diamond sawblades from the PRC, Commerce selected Chengdu and Fengtai as mandatory respondents and found several firms eligible for separate rates.
- Commerce rejected Chengdu’s redacted second supplemental submission as untimely because Chengdu could not fully upload the redacted version to ACCESS before the deadline; Commerce applied total AFA and assigned Chengdu (and separate rate respondents) the PRC-wide AFA rate of 82.05% in the Final Results.
- The CIT in Bosun I held Commerce abused its discretion by rejecting Chengdu’s submission and ordered Commerce to place Chengdu’s second supplemental response on the record and reconsider Chengdu’s rate and any affected rates.
- On remand, Commerce (under protest) placed Chengdu’s submission on the record, considered it and additional supplemental responses, calculated Chengdu’s individual rate as 0.00%, and assigned the separate rate respondents the average of Chengdu’s 0.00% and Fengtai’s 82.05% (41.025%).
- Bosun and the separate rate respondents challenged the 41.025% all-others rate as unsupported; DSMC challenged Commerce’s reversal of AFA for Chengdu. The government and Chengdu urged affirmance.
- The court sustained Commerce’s recalculation of Chengdu’s rate (compliance with remand) but remanded Commerce’s calculation of the separate-rate/all-others rate for further explanation or consideration consistent with Albemarle and the statutory “expected method.”
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Commerce properly declined to apply total AFA to Chengdu and considered Chengdu’s supplemental submission | Bosun/Chengdu argued the submission should be on the record and AFA was unwarranted because the unredacted filing was timely served and the redaction upload issue was harmless | Commerce (and DOJ) argued remand compliance was required; DSMC insisted AFA was appropriate and Commerce’s reversal was unsupported | Court sustained Commerce’s remand determination: Chengdu’s supplemental response was placed on the record and Commerce reasonably recalculated Chengdu’s rate as 0.00% in compliance with Bosun I |
| Whether Commerce reasonably assigned separate-rate respondents an all-others rate equal to the average of Chengdu (0.00%) and Fengtai (82.05%) | Bosun/separate-rate respondents argued the 41.025% average is not reasonably reflective; record shows history of low margins for cooperators and prior individual examinations that contradict the average | Commerce/DOJ defended the chosen method as an application of the statute’s permitted methods (including averaging) and argued it was reasonable | Court held Commerce’s 41.025% calculation is unsupported by substantial evidence and remanded for Commerce to consider record evidence (including prior individual margins) or explain why deviation from the “expected method” is reasonable |
| Whether Commerce permissibly applied or departed from the statutory “expected method” under 19 U.S.C. §1673d(c)(5) | Plaintiffs urged that the “expected method” (weight-average of individually examined margins) should be applied or, if departed from, Commerce must justify departure in light of prior low margins for cooperative separate-rate firms | Commerce relied on its discretion to use an alternative averaging method here and rejected non-contemporaneous evidence as irrelevant | Court remanded: Commerce must consider Albemarle, evaluate prior (possibly non-contemporaneous) margins and contemporaneity concerns, and explain any departure from the expected method with substantial evidence |
| Whether Commerce complied with the court’s remand order and preserved appeal rights by acting “under protest” | Plaintiffs sought full relief requested in Bosun I (consideration of Chengdu data and recalculations) | Commerce placed the submission on the record but maintained its disagreement (acted under protest) to preserve appellate rights | Court found Commerce complied with the remand as to Chengdu (sustaining Chengdu’s rate) and acknowledged Commerce’s protest preserves appealability |
Key Cases Cited
- Albemarle Corp. & Subsidiaries v. United States, 821 F.3d 1345 (Fed. Cir. 2016) (Commerce must base departure from the statutory “expected method” on substantial evidence that separate respondents’ dumping differs)
- Yangzhou Bestpak Gifts & Crafts Co. v. United States, 716 F.3d 1370 (Fed. Cir. 2013) (accuracy and fairness are primary in calculating separate rates for cooperating exporters)
- Gallant Ocean (Thailand) Co. v. United States, 602 F.3d 1319 (Fed. Cir. 2010) (AFA adjudication and commercial reality discussion)
- Viraj Grp., Ltd. v. United States, 343 F.3d 1371 (Fed. Cir. 2003) (acting under protest preserves appellate rights)
- Amanda Foods (Vietnam) Ltd. v. United States, 774 F. Supp. 2d 1286 (Ct. Int’l Trade 2011) (Commerce may reopen record to collect additional information when appropriate)
- Solianus Inc. v. United States, 391 F. Supp. 3d 1331 (Ct. Int’l Trade 2019) (upholding expected method when plaintiffs fail to show why resulting margin is not reflective)