Barcode : 4326250-02 A-533-889 REV - Admin Review 12 / 13 / 19 - 5 / 31 / 21
In presenting their arguments regarding the selection of an AFA rate for Antique Group , various parties point to Gallant Ocean and De Cecco to contend that the commercial reality of Antique Group must be reflected in the AFA margin it is assigned . This is misleading because the Gallant Ocean framework that required Commerce to consider “ commercial reality ” was specifically superseded by Congress through the implementation of the Trade Preferences Extension Act of 2015 . 185 Specifically , section 776 ( d )( 3 )( B ) of the Act now states that Commerce is not required to demonstrate that the AFA dumping margin reflects an alleged commercial reality of the respondent . Similarly , the CAFC in De Cecco , based its ruling on the premise that Commerce could not rely on AFA rates with no relationship to the respondent ’ s actual dumping margin ; the new language of the TPEA makes clear that no consideration of the respondent ’ s rate , had it participated , is required . Specifically , section 776 ( d )( 3 )( A ) of the Act now states that Commerce need not estimate what the dumping margin would have been had the respondent cooperated . Thus , Gallant Ocean and De Cecco are no longer relevant precedent with respect to these issues .
Accordingly , arguments contending that Commerce has an obligation to consider the commercial reality of Antique Group , what Antique Group ’ s rate would have been , had it participated , or the overall market conditions are no longer relevant case precedent and , as such , we have not considered these arguments further . Additionally , we find that arguments that the courts have ruled that an AFA rate was impermissibly high because it did not reasonably reflect the respondent ’ s operations ( e . g ., De Cecco ) to also be moot , given the changes to the statute under the TPEA .
With respect to corroboration , interested parties put forth arguments attempting to tie the reality of Antique Group ’ s operations or that of the general environment surrounding exports of subject merchandise to the ability to corroborate the petition rate . While section 776 ( c ) of the Act requires that Commerce corroborate any AFA rate that has not previously been used in a prior segment with independent sources of information reasonably at the disposal of the agency , the statute also establishes that Commerce has no obligation to make certain estimates or demonstrate that that the rate reflects a commercial reality of the interested party . 186
Separately , though , Commerce agrees that , because an AFA rate has not previously been assigned under this Order , Commerce had an obligation to corroborate the selected rate with information reasonably on hand and , therefore , we concur with arguments made that Gallant Ocean and De Cecco stand for the proposition that Commerce ’ s AFA rate cannot go uncorroborated . As Commerce explained in the Preliminary Results , Commerce ’ s practice is to select as AFA the higher of the highest dumping margin alleged in the petition or the highest calculated rate for any respondent from any segment of the proceeding . 187 This rate is sufficiently adverse to ensure that a non-cooperative party does not obtain a more favorable
185
See Dates of Application of Amendments to the Antidumping and Countervailing Duty Laws Made by the Trade Preferences Extension Act of 2015 , 80 FR 46793 ( August 8 , 2015 ) ( TPEA ); see also Glycine from India IDM at Comment 5 .
186
See section 776 ( e )( B ) of the Act .
187
See Preliminary Results PDM at 10 .
41 Filed By : David Lindgren , Filed Date : 1 / 3 / 23 1:27 PM , Submission Status : Approved