Commerce's All-Others Rate in AD Case 'Patently Unreasonable,' Plywood Importers Tell CIT

The Commerce Department's actions in calculating the all-others rate in an antidumping investigation were "patently unreasonable," plywood importers argued in Dec. 29 comments on Commerce's remand results. Submitting their arguments to the Court of International Trade, the importers, led by Taraca Pacific, went after Commerce's method for finding the all-others rate when the agency itself recognized that the petition separate rate application rates the all-others rate was based on was only "to some extent" representative of the separate rate plaintiffs' dumping margin (Linyi Chengen Import and Export Co. v. U.S., CIT Consol. #18-00002).

In the case, 40 plaintiffs challenged the antidumping duty investigation into hardwood plywood products from China. Commerce had assigned the two mandatory respondents, Linyi Chengen and Dongfang, a zero percent and a 114.72% adverse facts available China-wide dumping margin, respectively. The agency then established the rate assigned to the non-examined, separate rate companies involved in this litigation by departing from the expected method and averaging the two rates to get a 57.36% rate.

In the fourth opinion in the case, Judge Jennifer Choe-Groves upheld Commerce's decision to depart from the expected method (see 2109240039). Following this method would have resulted in a zero percent dumping margin for the non-individually examined respondents -- an outcome that Commerce said wasn't representative of the non-individually examined respondents' rates due to evidence showing a non-zero dumping margin.

However, Choe-Groves remanded the final rate that the agency did eventually land on. The judge held that Commerce can't simply average the zero and AFA rates because this would lead to a rate not based on any company's actual data and doesn't reasonably represent their dumping margins. On remand, Commerce came back with the decision that it had to average the zero percent margin and the AFA rate due to an alleged lack of viable alternatives (see 2111120039).

In their comments, the importers said this was untrue. Commerce had Linyi Chengen's zero percent rate and separate rate applications with commercial invoices of more than 100 companies found to be separate from the China-wide entity, the brief said. The importers said that this gave the agency plenty of other material from which it could derive the all-others rate.

"In addition, given that Commerce found that the Petition rates are only partially, i.e., 'to some extent,' representative of the Separate Rate Plaintiffs and that there is 'no basis to choose between' the two Petition rates, it is patently unreasonable and unsustainable for Commerce to have disregarded the myriad other commercial invoices on the record from the Separate Rate Plaintiffs, rejected the representativeness of Linyi Chengen and ignored the flaws in the Petition rates and ultimately selected only the highest possible Petition rate to derive the separate rate," the brief said.

The importers join two other groups of plaintiffs in commenting on Commerce's remand results, including a group of Chinese exporters that argued against the alleged limited record on which the agency based the all-others rate since the record was of Commerce's own making (see 2112290021). Also joining the fray are the consolidated separate rate plaintiffs, who, in their own brief, argued that Commerce overlooks the voluntary respondents.

"The Department has a pattern of limiting respondent selection, refusing to select voluntary respondents, and then due to the limited respondent selection, encounters issues calculating the separate rate margin," the comments said. "In this case, the Department limited themselves to only two mandatory respondents, despite Jiangyang Wood requesting to be a voluntary respondent and submitting complete questionnaire responses to the record. ... And now on remand, the Department has continually refused to consider their data or unique posture in the case while concurrently stating the record is limited."