Barcode : 4259556-02 A-533-889 REV - Admin Review 12 / 13 / 19 - 5 / 31 / 21
735 ( c )( 5 )( A ) of the Act , we calculated an average margin for non-selected respondents using the publicly available , ranged total U . S . sales values of the selected respondents , compared the resulting public , weighted-average margin to the simple average of the dumping margins , and used the amount which is closer to the actual weighted-average margin of the selected respondents as the margin for the non-selected respondents . 57
On this basis , and in accordance with section 735 ( c )( 5 )( B ) of the Act , we are preliminarily applying an average of the rates assigned to PESL and Antique Group to the 53 companies that had reviewable transactions during the POR . These are the only rates determined in this review for individual respondents and , thus , should be applied to the 53 companies not selected for individual examination under section 735 ( c )( 5 )( B ) of the Act . 58
VII .
DISCUSSION OF THE METHODOLOGY
We are conducting this administrative review of the Order in accordance with section 751 ( a ) of the Act and 19 CFR 351.213 .
A .
Date of Sale
Section 351.401 ( i ) of Commerce ’ s regulations states that , “{ i } n identifying the date of sale of the subject merchandise or foreign like product , the Secretary normally will use the date of invoice , as recorded in the exporter or producer ’ s records kept in the ordinary course of business .” The regulation provides further that Commerce may use a date other than the date of invoice if the Secretary is satisfied that a different date better reflects the date on which the exporter or producer establishes the material terms of sale . 59 Commerce has a long practice of finding that , where the shipment date precedes the invoice date , the shipment date better reflects the date on which the material terms of sale are established . 60
PESL reported the shipment date as the date of sale for its U . S . market sales . 61 PESL reported that the price and quantity of a sale are fixed at the issuance of a commercial invoice , created at the time merchandise is dispatched . However , this invoice maintains the date of the related
57
See Ball Bearings and Parts Thereof from France , Germany , and Italy : Final Results of Antidumping Duty Administrative Reviews ; 2010-2011 , 77 FR 73415 ( December 10 , 2012 ), and accompanying Issues and Decision Memorandum ( IDM ), at Comment 1 ; see also JBF RAK LLC v . United States , 790 F . 3d 1358 , 1363-65 ( Fed . Cir . 2015 ) (“ The fact that the statute is silent with regard to administrative reviews does not preclude Commerce from filling gaps in the statute to properly calculate and assign antidumping duties .”) ( citations omitted ); and Apex Frozen Foods Private Ltd . v . United States , 37 F . Supp . 3d 1286 ( CIT 2014 ).
58
For the detailed calculations , see Memorandum , “ Calculation of the Rate for Respondents Not Selected for Individual Examination ,” dated concurrently with this memorandum .
59
See 19 CFR 351.401 ( i ); see also Allied Tube & Conduit Corp . v . United States , 132 F . Supp . 2d 1087 , 1090 ( CIT 2001 ) ( quoting 19 CFR 351.401 ( i )).
60
See , e . g ., Notice of Final Determination of Sales at Less Than Fair Value and Negative Final Determination of Critical Circumstances : Certain Frozen and Canned Warmwater Shrimp from Thailand , 69 FR 76918 ( December 23 , 2004 ), and accompanying IDM at Comment 10 ; see also Notice of Final Determination of Sales at Less than Fair Value : Structural Steel Beams from Germany , 67 FR 35497 ( May 20 , 2002 ), and accompanying IDM at Comment 2 .
61
See PESL ’ s CQR at C-21 and C-22 .
12 Filed By : Kyle Clahane , Filed Date : 7 / 1 / 22 2:00 PM , Submission Status : Approved