Commerce Ignored Common Data Aggregation Practice in 5-Year-Old Review, Tire Exporter Says

Had the department looked to the whole of Kenda’s entries, it would have selected Kenda first, prior to selecting respondents Linglong, Boto, Hengyu and Winrun, YC Rubber said. Instead, starting with Linglong, it sought the participation of each of the other respondents and, when none could provide contemporaneous records for the five-year-old review on passenger vehicle and light truck tires from China, it assigned each the 87.99% China-wide antidumping duty rate. Kenda, when it was eventually selected, was able to participate.

In June, the Court of International Trade questioned Commerce’s approach. Looking at Excel data of the exporters’ import volumes, it said “[i]t appears to the court that Commerce failed to aggregate certain data entries with slightly different names.” It went on to note that if Kenda should have been selected earlier, the selections of at least “Winrun, Mayrun, and Hengyu before Kenda would be erroneous,” while “questions remain” about Linglong’s import volume, too.

YC Rubber said “[o]verwhelming and unrebutted record evidence confirms” Kenda had the highest quantity of U.S. imports among the respondents. Commerce regularly aggregates when it finds “minor variations in company names” in CBP data, including slight differences in spelling, punctuation or parenthetical information, the exporter said. It also routinely sought comments from parties about relevant aggregations -- but didn’t this time around, the exporter said.

And, in the second remand results, instead of following the trade court’s instructions and taking into account evidence showing that Kenda’s data should have been aggregated, Commerce attempted a “temporal sleight of hand” by basing the results on Kenda’s lower value at the time of the first remand, it said.

“Yet Commerce was tasked with defending its respondent selection on second remand, with the then-existing record, and not going back in time to defend its selection at an earlier point in time,” YC Rubber said.

It also pushed back on the department’s claim that “parties did not comment on the CBP data with respect to Kenda in the underlying administrative review or the first remand,” pointing out that the initial respondent selection for the review, at least, took place in 2017, long before Kenda’s participation was an issue. It also said the court had expressly found that the U.S. “waived any failure-to-exhaust claim.”

Another exporter, ITG Voma, filed separately, though YC Rubber acknowledged and incorporated its arguments into its own brief.

Voma argued that Commerce wrongly selected respondents using all period of review entries when it should have looked only to suspended entries. Only the suspended entries are actually subject to the review, it said.

Commerce itself said in its first remand results that “any liquidated entries are already final, so no further challenge to the antidumping duty rate applied to them would be possible,” Voma claimed. This meant that “[i]t is thus clear that only suspended entries are subject to remedy in this proceeding,” it said.

It called the department’s decision to instead focus on all entries “particularly striking” because agency practice in other reviews is to select respondents that make up the greatest part of suspended, not all, entries.

And consolidated plaintiff Mayrun Tyre also filed comments opposing Commerce’s remand redetermination. Agreeing with the other plaintiffs regarding Commerce’s respondent selection process, it also argued again that the department shouldn’t have denied Mayrun’s second withdrawal request from the review.