Barcode : 4326250-02 A-533-889 REV - Admin Review 12 / 13 / 19 - 5 / 31 / 21
� Commerce should either use the non-AFA rate calculated for PESL or individually calculated rate ( s ) for cooperative respondents in the investigation as such a rate would be reasonably reflective of the non-selected respondents ’ potential dumping margin .
� The CAFC found in Bestpak that , by averaging a de minimis rate and an AFA rate to assign as a separate rate to other companies , as Commerce did in the Preliminary Results , Commerce failed to select a rate that reflected economic reality . 196
� Commerce should rely on the final rate for PESL when selecting the non-selected company rate , excluding Antique Group ’ s AFA rate from the calculation . This is consistent with what Commerce has done in other proceedings . 197
� Should Commerce not rely on PESL ’ s rate , it should not use a rate higher than 5.15 percent , which was the highest calculated rate in the original investigation .
� The non-selected companies and U . S . importers have not impeded Commerce ’ s proceeding in any manner and should not be punished for actions taken against a mandatory respondent .
� There is no evidence that the rates from the original investigation are not reasonably reflective of non-selected companies ’ potential dumping margin .
Arizona Tile et al .’ s Case Brief 198
� Where all rates are zero , de minimis , or based on AFA , Commerce ’ s expected method is to average these rates . However , Commerce is allowed the discretion to depart from this methodology and , instead , rely on any reasonable method for determining the nonselected companies ’ rate .
� Because an original investigation only establishes a cash deposit rate , Commerce should be more circumspect in determining the non-selected rate in administrative reviews , given that a review results in actual duty obligations and that it has become more familiar with the industry in question over time .
� An analysis of the non-selected respondent data indicates that pricing by non-selected companies is not 161.56 percent lower than PESL ’ s pricing and thus , does not justify the application of such a high margin .
� As evidenced by the significantly lower rates in the investigation , the preliminary margin of 161.56 percent assigned to non-selected companies in the instant review is not reasonably reflective of the non-selected companies ’ behavior , and Commerce should instead pull forward the all-others rate from the original investigation .
� The CAFC has outlined two circumstances where pulling forward a rate from a prior period is reasonable : where there is no evidence of significant changes from one period to another ; and where AFA is used . 199
196
Id . at 5 ( citing Bestpak , 716 F . 3d at 1378 ).
197
Id . at 7 ( citing Multilayered Wood Flooring from the People ’ s Republic of China : Preliminary Results of the Antidumping Duty Administrative Review , Preliminary Determination of No Shipments , Preliminary Successor-in- Interest Determination , and Rescission of Review , in Part ; 2018-2019 , 86 FR 22016 ( April 26 , 2021 ), and accompanying PDM ; and Multilayered Wood Flooring from the People ’ s Republic of China , Final Results of Antidumping Duty Administrative Review , Final Successor-in-Interest Determination , and Final Determination of No Shipments ; 2018-2019 , 86 FR 59987 ( October 29 , 2021 ) ( Wood Flooring from China 2018-2019 ), and accompanying IDM .
198
See Arizona Tile et al .’ s Case Brief at 19-27 .
199
Id . at 23-24 ( citing Albemarle ).
45 Filed By : David Lindgren , Filed Date : 1 / 3 / 23 1:27 PM , Submission Status : Approved