2019 CIT 83
Ct. Intl. Trade2019Background
- Commerce assigned Tafishco and Golden Quality the Vietnam-wide antidumping rate ($2.39/kg) in the 2014–2015 (twelfth) administrative review after finding both failed to demonstrate eligibility for separate rates.
- Tafishco challenged Commerce’s authority to apply a Vietnam-wide “NME-entity” rate that Commerce treated as neither an individually investigated rate nor an all-others rate. The court previously remanded, holding Commerce had not grounded that rate in statutory authority.
- On remand Commerce clarified the Vietnam-wide rate was an individually investigated rate originally set in the investigation (using AFA) and revised in the tenth administrative review, and that Commerce applied it in the twelfth review because Tafishco failed to show independence.
- Commerce explained its current practice: it only re-reviews the nonmarket-economy (NME) entity when requested or self-initiated; it did not review the Vietnam entity in the twelfth review.
- Tafishco argued Commerce needed to corroborate the prior-segment Vietnam-wide rate under the corroboration rule for AFA; Commerce relied on 19 U.S.C. § 1677e(c)(2) (TPEA) and its practice that prior-segment rates need not be corroborated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Commerce had statutory authority to apply the Vietnam-wide NME rate in the twelfth review | Tafishco: Commerce lacked statutory authority because the rate was neither an individually investigated rate nor an all-others rate | U.S./Commerce: Rate lawful; Commerce may assign a country-wide rate in NME cases and on remand treated the rate as an individually investigated rate | Court: Sustains remand — Commerce’s characterization of the rate as an individually investigated rate grounds it in statute and complies with court order |
| Whether the Vietnam-wide rate must be newly investigated in each administrative review | Tafishco/Golden Quality: Commerce must investigate the NME entity in the current review to treat the rate as individually investigated | Commerce: No statute requires re-investigation each review; it may carry forward a prior-segment individually investigated rate and only reviews the NME entity when requested or self-initiated | Court: No statutory requirement to re-investigate each review; carrying forward prior investigated rate is lawful when respondent fails to qualify for separate rate |
| Whether Commerce needed to corroborate the Vietnam-wide rate when applying it in the twelfth review | Tafishco: Commerce had to corroborate the AFA-based Vietnam-wide rate for reliability and relevance | Commerce: TPEA (19 U.S.C. § 1677e(c)(2)) and practice relieve Commerce of corroboration for rates established in a prior segment of the same proceeding; also no AFA was applied in the twelfth review itself | Court: Commerce not required to corroborate a rate established in a prior segment; no corroboration obligation here |
| Whether Commerce complied with this court’s remand instruction | Golden Quality: Remand Results still treat the rate as simply carried forward and not as individually investigated in this review, so remand noncompliant | Commerce: On remand expressly acknowledged the rate was an individually investigated rate from the original investigation and revised in AR10 | Court: Remand complies with Thuan An; Commerce’s explanation is adequate and lawful |
Key Cases Cited
- Sigma Corp. v. United States, 117 F.3d 1401 (Fed. Cir. 1997) (upholding Commerce’s rebuttable presumption of state control and NME treatment)
- Peer Bearing Co. v. United States, 587 F. Supp. 2d 1319 (Ct. Int’l Trade 2008) (discusses corroboration requirement when Commerce relies on secondary information)