Barcode : 4326250-02 A-533-889 REV - Admin Review 12 / 13 / 19 - 5 / 31 / 21
rate for PESL was zero , any rate assigned to non-selected companies that exceeds zero is inherently aberrational and should not be used .
� Commerce ’ s preliminary methodology for calculating the non-selected company rate is inconsistent with the guidance provided in the SAA , which states that when it appears that an average of rates may not be reflective of potential dumping margins , Commerce may use other reasonable methods to calculate the non-selected company rate . 205 The rates in the Preliminary Results are clearly outliers when compared to the rates from the investigation and , therefore , cannot be used .
� Evidence indicates that market conditions have not changed since the investigation . Specifically , non-selected companies would not have requested reviews , had they anticipated higher margins , and PESL preliminarily received a lower rate than it obtained in the investigation .
� The non-selected companies are being penalized for the only cooperative respondent , PESL , not dumping . Had PESL received a dumping margin as small as 0.60 percent , Commerce ’ s methodology would have resulted in assigning that rate to the non-selected companies , which demonstrates that the preliminary rate is not representative of the situation .
� The non-selected company rate used in the Preliminary Results is aberrational when compared to historic dumping rates assigned in India dumping cases . In particular , all total AFA rates but one applied in India are lower than the rate assigned to the nonselected companies in the Preliminary Results , demonstrating that the selected rate is aberrational .
� Information demonstrates that , with limited exceptions , Indian trade remedy officials tend to calculate lower dumping margins in AD administrative reviews than in original investigations .
� Commerce should rely on one of three alternates for identifying a rate to assign to nonselected respondents : ( 1 ) pull forward the all-others rate from the investigation ; ( 2 ) use the rate calculated for PESL ; or ( 3 ) average all calculated rates from the investigation and review .
� Pulling forward the all-others rate from the investigation is the simplest approach and has been employed by Commerce in other proceedings . 206 In addition , the CAFC in Albemarle concluded that this approach is reasonable where there is evidence that the market and dumping margins have not changed from period to period . 207
� Assigning PESL ’ s rate to the non-selected respondents would be the fairest and have the advantage of using a rate that is actually calculated from data during the POR while using all the non-AFA rates that have been calculated in the investigation and review would ensure that the most calculated rates are considered .
� The Eighth Amendment makes clear that “ excessive bail shall not be required , nor excessive fines imposed , nor cruel and unusual punishments inflicted .” A “ fine ” has been defined by the U . S . Supreme Court as a payment as punishment for an offense . 208
� Reliance on AFA , even if only in part , to calculate an assessment rate assigned to fully cooperative parties , including non-selected respondents and importers , raises issues under
205
Id . at 26-27 ( citing SAA at 4 ( d )( 2 )).
206
Id . at 34-36 ( citing Nails from Oman Preliminary Results ; and Stainless Steel Bar from India ).
207
Id . at 34 ( citing Albemarle ).
208
Id . at 40 ( citing BFI , Inc . v . Kelco Disposal , Inc ., 492 U . S . 257 ( 1989 ) ( Supreme Court )).
47 Filed By : David Lindgren , Filed Date : 1 / 3 / 23 1:27 PM , Submission Status : Approved