CIT Sustains Undefined 'Above Zero' AD Rate for Chinese HEDP Company
The Court of International Trade sustained the Commerce Department’s decision to assign Jiangsu Jianghai Chemical an “above de minimis” antidumping duty rate -- but not calculate exactly what that rate may be -- in the original AD duty investigation of 1-Hydroxyethylidene-1, 1-Diphosphonic Acid (HEDP) from China. The Commerce determination came on Court of Appeals for the Federal Circuit remand, after the appeals court had ruled against the agency’s adverse facts available (AFA) rate for Jiangsu Jianghai despite the company’s cooperation.
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During the 2008 original investigation, Jiangsu Jianghai was not selected for individual review. When Commerce in its final determination assigned the two mandatory respondents de minimis and high adverse facts available AD rates, respectively, it calculated Jiangsu Jianghai’s rate based on a simple average of the two. Although AD duty law says Commerce shouldn’t rely on either AFA or de minimis rates for average rate respondents if it can help it, the agency would have excluded Jiangsu Jianghai from coverage under the eventual AD duty order by relying only on the de minimis rate. After CIT sustained, CAFC rejected Commerce’s application of an AFA rate to Jiangsu Jianghai, which cooperated in the investigation, and remanded back to Commerce.
On remand, Commerce declined to calculate a rate for Jiangsu Jianghai at all. Evidence on the record showed the AFA respondent from the investigation, Keiwei, would have had a positive AD rate even if it hadn’t been assigned AFA. That means that Jiangsu Jianghai would have had a positive AD rate too, because the average rate would have been derived from Keiwei’s rate had it not been AFA. Calculating the actual rate for Jiangsu Jianghai is unnecessary, said Commerce, because all entries that would be affected have already liquidated. Given the circumstances, CIT said Commerce’s choice was reasonable and let it stand.
(Changzhou Wujin Fine Chem. Factory Co. v. U.S., Slip Op. 13-127, dated 10/02/13, public version 10/21/13, Judge Barzilay)