Burden on Exporter to Show Non-Selected Respondents' Rate Unreasonable, US, Producers Say
The U.S. and defendant-intervenors each replied Nov. 26 to importer CME Acquisition’s August motion for judgment (see 2408220024). They argued that the U.S. Court of Appeals for the Federal Circuit has put the burden on exporters to show that averaged adverse facts available rates for non-selected respondents via the expected method is unreasonable (CME Acquisitions v. United States, CIT # 24-00032).
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CME claimed in its motion that the recent CAFC case PrimeSource Building Products v. U.S., in which that standard was established, didn’t overrule the earlier CAFC case Bestpak Gifts & Crafts Co. v. U.S, which requires that non-selected respondents’ rates be “fair, accurate, and bear some relationship to their actual dumping margins.” This wasn’t the case for the 21.1% AFA-based nonrespondent rate the Commerce Department reached in its eleventh antidumping duty review on stainless steel sheet and strip in coils from Taiwan, the importer argued.
In their replies, the U.S. and producers North American Stainless and Outokumpu Stainless USA both said that, under PrimeSource, the burden was on CME to prove that the non-selected respondents’ rate, set using the expected method -- a weighted average of mandatory respondents’ rates, which in this case were both calculated using AFA -- was unreasonable.
CME had “ample opportunity” to rebut the reasonableness presumption, but didn’t, the defendant-intervenors said.
The presumption Commerce operates under when calculating the rates of non-selected respondents is that the mandatory respondents selected are representative of the rest, they said.
“To place an affirmative burden on Commerce to investigate the non-selected respondents and determine that the expected method would be reasonably reflective of their dumping margins ‘would contravene the purpose of those statutory provisions that allow Commerce to limit the number of parties individually investigated under certain circumstances,’” they said.
The government, meanwhile, said Commerce hadn’t departed from any past practices or acted unreasonably when it reached its final review results. The department made its decision because “no substantial evidence on the record indicated that the non-examined companies’ dumping was different from that of the mandatory respondents,” it said.
This was a reasonable application of the relevant statute, it said. And use of the expected method in situations such as these has been affirmed in cases like PrimeSource, Changzhou Hawd Flooring Co. v. United States and Albemarle Corp. & Subsidiaries v. United States, it said.
CME even acknowledges CAFC’s decision in PrimeSource, it said. The exporter also misunderstands Bestpak, it said, in which case CAFC overturned a simple average of a de minimis and a China-wide rate for separate rate respondents.
“Plaintiff’s argument thus elevates form over substance,” it said.
Agreeing that this case, like Bestpak, involves a simple average rather than the weighted average in PrimeSource, the U.S. nevertheless distinguished it from Bestpak. In Bestpak, non-selected respondents received a simple average of two different numbers, it said, whereas in this one, both mandatory respondents received the same rate.