CAFC Decision in PrimeSource Doesn't Overturn Any Major Precedent, Steel Importer Says
Responding to opposition to its motion for judgment, steel importer CME Acquisitions said “judicial and administrative precedent” still support pulling forward prior calculated antidumping duty rates for non-selected respondents to a review when all selected respondents are hit with adverse facts available (CME Acquisitions v. United States, CIT # 24-00032).
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CME brought its case arguing that, as a non-selected respondent, it had been unfairly subjected to an AFA-based antidumping duty rate after a review of stainless steel sheet and strip in coils from Taiwan (see 2403060057 and 2408220024).
The Commerce Department has actually refused to apply AFA rates to non-selected respondents in numerous other reviews, CME said; for example, the department pulled forward the all-others rate from an investigation in a review of Indian quartz countertops imported between 2019 and 2021. And in the 10th administrative review of the antidumping duty in the current proceeding, the department likewise chose not to use de minimis margins received by mandatory respondents, it said.
The recent U.S. Court of Appeals for the Federal Circuit case PrimeSource was distinguishable by the specific facts of the case, CME said, and it also didn’t overturn the precedent of using pulled forward prior rates for non-selected respondents instead of using mandatory respondents’ AFA margins. This was shown by the fact PrimeSource’s court limited its holding to the case in front of it, which said, “[h]ere, Commerce’s decision not to depart from the expected method was in accordance with the law and supported by substantial evidence,” CME argued.
The importer also took issue with how the AFA 21.1% AD rate for each mandatory respondent in its review had been calculated. The rate dated back to the original 1997-1998 investigation, having been intended to induce the cooperation of one mandatory respondent “who, in fact, co-operated in an Annual Review encompassing sales over twenty tears later in 2020-2021,” CME said.
Meanwhile, the overall calculated rates for the subject merchandise from 1999 to 2009 ranged from zero percent to 4.3%, it said.
“In light of these facts, Commerce’s decision is facially unfair,” it said.
It pointed out that the government, in its own brief, argued for the rejection of the 4.3% rate from 2009 because it was “calculated over a decade ago.”
“This argument supports CME’s position that this Court should reject the 21.10[%] rate, since that rate was calculated over two-decades ago,” it said.