Barcode : 4326250-02 A-533-889 REV - Admin Review 12 / 13 / 19 - 5 / 31 / 21
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The CIT recently concluded in Pro-Team Coil III that the process of respondent selection assumes that the largest exporters by volume are representative of non-selected respondents and , as such , arguments that the expected method results in an aberrational or unrepresentative non-selected company rate are unsupported . In addition , the CIT also explained that it is expected that the mandatory respondents ’ rates will be used when assigning a rate to non-selected companies , and there is no requirement that information about non-selected respondents be collected because the mandatory respondents are intended to be representative of all companies subject to the review . 231 The courts have repeatedly upheld the use of the expected method in administrative reviews ; arguments that it only applies to investigations should be rejected . In Albemarle , the CAFC rejected a similar argument by Commerce that the expected method only applies to investigations , finding that the statute contemplates Commerce relying on the same methods in an administrative review as it does in an investigation . 232 There is no basis on which Commerce is required to be more circumspect with the rates that it applies in an administrative review versus an investigation because of the effect that these rates will have on the collection of duties . In fact , rates set in investigations can be used for the assessment of duties in future proceedings and , thus , Commerce is required to be equally circumspect in all proceedings . There is no merit to arguments that Commerce cannot use the expected method because it does not have volume data available to it . This misunderstands Commerce ’ s analysis in the Preliminary Results , where it determined that the simple average of the rates assigned to PESL and Antique Group was more reflective of the weighted-average rate using the proprietary volume information of the two respondents . In fact , Commerce has this information and used it in this analysis . The assumption when using respondent rates to calculate a rate for non-selected companies is that the mandatory respondents are reflective of non-selected companies ’ behavior . 233 It is not Commerce ’ s duty to demonstrate that this is the case , but rather , if parties disagree , the burden of proof lies with them to demonstrate that the rate assigned to mandatory respondents is not reflective of non-selected company behavior . The parties in this case have failed to do so . During the respondent selection stage of the review , the petitioner proposed that Commerce select respondents based on sampling , rather than based on the largest exporters . In opposing this , some of the parties now arguing that the record shows that the non-selected company rate should be different from the expected method opposed sampling by explaining that there was no indication that rates of the largest exporters are different from the smaller companies . 234
231
Id . at 40 ( citing Pro-Team Coil III ).
232
Id . at 41-42 ( citing Albemarle , 821 F . 3d at 1352-53 ).
233
Id . at 45 ( citing Albemarle , 821 F . 3d at 1353 ; Changzhou Hawd Flooring Co . v . United States , 848 F . 3d 1006 , 1012 ( Fed . Cir . 2017 ) (“ The very fact that the statute contemplates using data from the largest volume exporters suggests an assumption that those data can be viewed as representative of all exporters .”); and Pro-Team Coil III , 587 F . Supp . 3d at 1370 (“ Albemarle and Changzhou Hawd confirm that the expected method is the default method and that the burden of proof lies with the party Seeking to depart from the expected method … .”)).
234
Id . at 46-47 ( citing Arizona Tile and MSI ’ s Letter , “ Comments on Cambria ’ s Request for Sampling to Select Mandatory Respondents ,” dated August 30 , 2021 ; and Federation ’ s Letter , “ Federation of Quartz Surface Industry of India Rebuttal to Petitioner ’ s Comments on Respondent Selection and CPB { sic } Data ,” dated September 1 , 2021 , at 12 ).
51 Filed By : David Lindgren , Filed Date : 1 / 3 / 23 1:27 PM , Submission Status : Approved