Barcode : 4326250-02 A-533-889 REV - Admin Review 12 / 13 / 19 - 5 / 31 / 21
GlobalFair ’ s Case Brief 223 � Applying an AFA rate to all other respondents is inconsistent with the law and misrepresentative of the experience of other companies subject to the instant review .
� The CAFC has explained that applying AFA to cooperating respondents undermines the intent of the cooperation-promoting goal of the AFA portion of the statute . Basing the non-selected company rate on an AFA rate is neither fair nor equitable , given that the CAFC has stated that the representativeness of individually-investigated respondents is an essential characteristic of an all-others rate .
� By relying on an AFA rate to determine the rate for non-selected companies in this review , Commerce would be countering case law by establishing a rate that has no reasonable relationship to the non-selected respondents ’ business practices .
� Commerce should reconsider the application of AFA rates to Antique Group and nonselected companies .
Jessie-Kan et al .’ s Case Brief 224
� The CAFC explained in Thai Pineapple that , while various methodologies may be used , it is possible that reliance on a certain methodology may be unreasonable in a particular case . 225 Moreover , the CAFC has repeatedly explained that accuracy and fairness must be Commerce ’ s objective when selecting a rate for non-reviewed companies . 226
� Commerce , in relying on the expected method for the calculation of the non-selected company rate , failed to consider whether the rate of 161.56 percent was reasonable . Specifically , the assigned rate is significantly higher than the rates calculated in the original investigation , and the courts have found that such disparities indicate a lack of reasonableness on the part of the selected rate . 227
� Should Commerce continue to apply AFA to Antique Group , Commerce should adopt an alternate methodology that results in a reasonable and accurate rate for the cooperative non-selected companies . In particular , Commerce should pull forward the 3.19 percent all-others rate calculated in the original investigation . This methodology has been upheld by the CAFC in the recent Albemarle decision as reasonable and Commerce has employed this “ pull forward ” methodology in a number of cases . 228
Petitioner ’ s Rebuttal Brief 229
� Commerce should continue to rely on the expected method for calculating the rate assigned to the non-selected companies . Commerce has a long-standing practice of employing this method , and the courts have consistently upheld its use . 230
223
See GlobalFair ’ s Case Brief at 10-12 .
224
See Jessie-Kan et al .’ s Case Brief at 9-17 .
225
Id . at 11 ( citing Thai Pineapple , 273 F . 3d at 1085 ).
226
Id . at 16-17 ( citing Albemarle , 821 F . 3d at 1354 ; Bestpak , 716 F . 3d at 1379 ; Gallant Ocean , 602 F . 3d at 1323 ; SNR Roulements , 402 F . 3d at 1363 ; and Rhone Poulenc ).
227
Id . at 12 ( citing Navneet , 999 F . Supp . 2d at 1363 ; and Bestpak ).
228
Id . at 14-16 ( citing Albemarle ; Nails from Oman Preliminary Results ; and Stainless Steel Bar from India ).
229
See Petitioner ’ s Rebuttal Brief at 37-56 .
230
Id . at 39-40 ( citing Bosun Tools Co . v . United States , Court No . 2021-1930 , 2022 ( Fed . Cir . 2022 ); and Pro-Team Coil Nail Enter ., Inc . v . United States , 587 F . Supp . 3d 1364 ( CIT 2022 ) ( Pro-Team Coil III )).
50 Filed By : David Lindgren , Filed Date : 1 / 3 / 23 1:27 PM , Submission Status : Approved