Navneet Publications (India) Ltd. v. United States, 36 I.T.R.D. (BNA) 777

Background

Commerce conducted the 5th administrative review of the antidumping order on certain lined paper products from India for Sept. 1, 2010–Aug. 31, 2011, covering 57 exporters/producers.
Commerce selected two mandatory respondents (Riddhi and SAB) for individual examination; both received 0% dumping margins in the Final Results. Several firms failed to respond to Q&V questionnaires and received AFA rates (22.02% for two uncooperative respondents in the Final Results).
Commerce calculated an all-others rate of 11.01% by taking the simple average of Riddhi’s and SAB’s zero rates and two AFA rates (22.02%), rather than assigning 0% or weighting only the investigated respondents’ margins.
Plaintiffs (Navneet and other Indian exporters) challenged Commerce’s methodology, arguing (a) Commerce unlawfully incorporated an AFA rate into the all-others rate and (b) the 11.01% rate did not reflect economic reality of uninvestigated cooperative respondents.
The Court reviewed statutory framework (19 U.S.C. § 1673d(c)(5) and the SAA) and relevant precedent and concluded that, while including AFA rates can be lawful, Commerce failed to support the 11.01% figure with substantial evidence.
The Court remanded the Final Results for Commerce to reconsider and redetermine the all-others rate, granting Plaintiffs’ motion in part and setting deadlines for remand proceedings.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Commerce unlawfully incorporated AFA into all-others rate	Inclusion of an AFA-derived margin improperly imposes adverse inferences on fully cooperating firms; §1677e limits AFA use	§1673d(c)(5)(B) and SAA permit inclusion of margins determined pursuant to facts available; Yangzhou allows AFA in rate calculus	Court: Inclusion of AFA not per se unlawful; Commerce may lawfully include AFA rates under the statute and precedent
Whether Commerce may include AFA rates assigned to uninvestigated, uncooperative respondents	Only AFA rates for individually investigated respondents are permissible; Changzhou limits use of AFA proxies	Commerce may use AFA applied to uncooperative respondents; Changzhou does not categorically bar such use when actual AFA exists	Court: §1673d(c)(5)(B) does not categorically preclude using AFA assigned to uninvestigated, uncooperative respondents; lawful in principle
Whether Commerce’s chosen 11.01% all-others rate was supported by substantial evidence	The 11.01% rate is untethered to economic reality; prior reviews, contemporaneous AUVs, and zero margins undermine it	The 22.02% AFA derived from actual transaction-specific data and 11.01% is not grossly excessive compared to zero margins	Court: Commerce’s explanation lacked substantial evidence tying 11.01% to respondents’ pricing; methodology arbitrary as applied — remand required
Remedy: What relief is appropriate	Plaintiffs sought remand for recalculation of rates consistent with law and record	Government defended the Final Results and methodology	Court: Granted motion in part; remanded to Commerce to reconsider and redetermine all-others rate within 90 days (comments schedule set)

Key Cases Cited

Nippon Steel Corp. v. United States, 337 F.3d 1373 (Fed. Cir. 2003) (standard for substantial evidence review)
Yangzhou Bestpak Gifts & Crafts Co. v. United States, 716 F.3d 1370 (Fed. Cir. 2013) (all-others/separate-rate methodology must reflect economic reality)
Changzhou Wujin Fine Chemical Factory Co. v. United States, 701 F.3d 1367 (Fed. Cir. 2012) (limits on using hypothetical AFA in separate-rate calculations)
United States v. Eurodif S.A., 555 U.S. 305 (2009) (focus on economic reality over form)
Amanda Foods (Vietnam) Ltd. v. United States, 714 F. Supp. 2d 1282 (CIT 2010) (criticized use of AFA or prior rates unsupported by record for cooperative respondents)
Union Steel v. United States, 713 F.3d 1101 (Fed. Cir. 2013) (explaining "zeroing" practice)