CAFC Reverses Lower Court, Finds AFA China-Wide AD Rate Applicable to Cooperative Respondent

Antidumping duty China-wide rates can still be based on adverse facts available (AFA) even if no members of the countrywide entity were found to be uncooperative in an administrative review, the U.S. Court of Appeals for the Federal Circuit said in a June 10 decision reversing a decision to the contrary from the Court of International Trade.

Countrywide rates are regular individual rates, and can be carried forward into subsequent administrative reviews, including any adverse inferences built into that rate, the Federal Circuit said. Double Coin Holdings, which cooperated with the relevant review on off-road tires, merely joined the China-wide entity, including its previously uncooperative members, CAFC said.

“Where a respondent in a [non-market economy] country cooperates with an investigation or review but fails to rebut the presumption of government control, Commerce may permissibly apply the country-wide NME entity rate,” the appeals court said. “This conclusion applies whether or not other members of the NME-wide entity are identified by name and subject to the administrative review at issue.”