Commerce Flips to Weighted Average for All-Others Rate in AD Review Following CIT Opinion

The Commerce Department switched to finding the all-others rate in an antidumping duty review using a weighted average of the respondents' rates rather than a simple average, in Oct. 13 remand results at the Court of International Trade. Still defending its use of the simple average in other hypothetical circumstances, Commerce nevertheless made the switch to weighted average, using CBP entry data for one of the respondents (Pro-Team Coil Nail Enterprise, Inc., et al. v. United States, CIT Consol. #18-00027).

The case stems from a challenge to the first administrative review of the antidumping duty order on certain steel nails from Taiwan in which Pro-Team Coil Nail Enterprise and Bonuts Hardware Logistics were selected as mandatory respondents. After Bonuts said it wouldn't participate, Unicatch was tapped as the replacement. In the final results of the review, Commerce picked the mandatory respondents' rates using total adverse facts available and selected the highest dumping margin alleged in the petition.

Following litigation over challenges from the plaintiffs, led by Pro-Team, Commerce calculated a company-specific dumping margin of zero percent for Pro-Team but continued with a total AFA rate of 78.17% for Unicatch. The agency then took a simple average of all three respondents' rates, including Bonuts', to derive the non-individually examined respondent rate, amounting to 39.09%. In the case's second opinion, Chief Judge Mark Barnett instructed Commerce to corroborate the petition rate, which the agency did, using Pro-Team's transaction-specific margins. When Commerce simply averaged the three mandatory respondents' rates again, it gave the non-individually examined respondents a 52.11% rate.

Barnett, in his most recent opinion, sustained Commerce's corroboration of the petition rate but remanded Commerce's departure from the expected method for finding the all-others rate (see 2108090026), the expected method being a weighted average of the respondents' rates, while Commerce used a simple average. The agency said it dropped the expected method because it didn't have sales value data from Bonuts. While that would normally be grounds to depart from the expected method, Barnett said, in this case Commerce has CBP import volume data that can be substituted for the missing sales value data.

On remand, Commerce did that -- using the CBP data to calculate the weighted average. The agency, though, said that in certain situations such CBP data could not be used for various purposes including the weight average calculation. “However, here, after considering parties’ arguments and in light of the evidence on this particular record, we find that the CBP data may be feasibly used in this instance to calculate a weighted average as directed by the [Statement of Administrative Action Accompanying the Uruguay Round Agreements Act],” Commerce said.