Barcode : 4326250-02 A-533-889 REV - Admin Review 12 / 13 / 19 - 5 / 31 / 21
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Section 751 ( a )( 2 )( B )( iv ) of the Act requires that the dumping margin in an administrative review be based on bona fide U . S . sales , yet Commerce has not conducted such an analysis in the instant review ; by doing so now , Commerce would likely find that PESL ’ s sales used to corroborate the AFA rate should be excluded . Because Commerce is unable to corroborate the petition rate , in the event that it continues to apply total AFA to Antique Group , it must use a more reliable AFA rate . Antique Group offers two options for the AFA rate , either selecting the highest rate calculated for PESL ’ s sales of slab , the product sold by Antique Group in the United States , or using the highest PESL rate for bona fide sales .
ASG ’ s Case Brief 166 � Reliance on the petition rate of 323.12 percent does not comport with the law , which requires that Commerce corroborate the probative value of the margin .
Arizona Tile et al .’ s Case Brief 167
� In the event that Commerce continues to reject Antique Group ’ s submission , it should assign the respondent a margin that more reasonably reflects its export behavior rather than relying on the rate of 323.12 percent it was assigned in the Preliminary Results . There is no indication that market conditions have changed since the initial investigation where Antique Group was assigned a rate of 5.15 percent . 168
� The CAFC , in Gallant Ocean , explained that the purpose of corroborating an AFA rate is to ensure that Commerce does not select an AFA rate that is outside reality . 169 Just as in that case , here Commerce failed to corroborate the selected AFA rate because the rate of 323.12 percent is unreasonably high compared to Antique Group ’ s prior rate from the investigation .
� Commerce ’ s corroboration analysis is unsupported because , while the 323.12 percent rate does appear in PESL ’ s data , the sales that have those rates are not representative of Antique Group ’ s sales . As the CAFC explained in Gallant Ocean and De Cecco , the intent of corroboration is to ensure that an AFA rate has some basis in reality . 170
� If Commerce continues to apply AFA to Antique Group , Commerce should apply the highest transaction-specific or CONNUM-specific margin for certain products sold by PESL .
DSG et al .’ s Case Brief 171
� Commerce ’ s discretion in selecting what to use as an AFA rate is not unlimited and , as the CAFC explains in Diamond Sawblades , accuracy is an important part of this selection process . 172 In this case , Commerce disregarded all of Antique Group ’ s previous
166
See ASG ’ s Case Brief at 3 .
167
See Arizona Tile et al .’ s Case Brief at 13-19 .
168
Id . at 13 ( citing Albemarle , 821 F . 3d at 1349 ( citing SAA )).
169
Id . at 15 ( citing Gallant Ocean ( explaining that “ although a higher AFA rate creates a stronger deterrent , Commerce may not select unreasonably high rates having no relationship to the respondent ’ s actual dumping margin .”)).
170
Id . at 18 ( citing Gallant Ocean ; and De Cecco , 216 F . 3d at 1034 ).
171
See DSG et al .’ s Case Brief at 15-21 and 53 .
172
Id . at 15 ( citing Diamond Sawblades Manufacturers ’ Coalition v . United States , 986 F . 3d 1351 ( Fed . Cir . 2021 ) ( Diamond Sawblades )).
37 Filed By : David Lindgren , Filed Date : 1 / 3 / 23 1:27 PM , Submission Status : Approved