Barcode : 4326250-02 A-533-889 REV - Admin Review 12 / 13 / 19 - 5 / 31 / 21
� There was evidence across many administrative reviews and investigations of Nails from Oman Preliminary Results and Stainless Steel Bar from India that the non-selected companies ’ rate was significantly different . There is not a similar history in this proceeding ; Commerce has never calculated rates for any of the non-selected companies .
� The CIT has previously ruled that an AFA rate that is in line with the statute is remedial , rather than punitive and , thus , Eighth Amendment issues are not applicable . 241 Because the AFA rate selected in this review complies with the statute , there is no basis to consider these arguments .
� Commerce has not acted punitively by refusing to provide Antique Group with additional opportunities to submit information but has , instead , acted within the authority it has to set and enforce deadlines .
Arizona Tile et al .’ s Rebuttal Brief 242 � The petitioner argues that Commerce should use Antique Group ’ s information from the original investigation for calculating CV profit and selling expenses . In doing so , the petitioner explains that market conditions between the investigation and this review are unchanged .
� The CAFC , in Albemarle , has affirmed Commerce ’ s pulling forward of an all-others rate from the investigation where the overall market and dumping margins have not changed between two periods and where the expected method for determining a non-selected company rate would not be reasonably reflective of potential margins for noninvestigated companies . 243
� The petitioner ’ s admission that conditions are unchanged demonstrates that it is appropriate to pull forward the all-others rate from the original investigation to assign to the non-selected companies , rather than the significantly higher rate assigned to nonselected companies in the Preliminary Results .
� Commerce should pull forward the all-others rate from the original investigation and use it as the rate assigned to the non-selected companies in the final results .
Commerce ’ s Position : Fifty-one companies were not selected for individual examination in this review . The statute and Commerce ’ s regulations do not directly address the establishment of a rate to be applied to individual companies not selected for examination when Commerce limits its examination in an administrative review pursuant to section 777A ( c )( 2 ) of the Act . Generally , Commerce looks to section 735 ( c )( 5 ) of the Act , which provides instructions for calculation of the all-others rate in an investigation , for guidance when calculating the rate for the respondents not selected for individual examination in an administrative review . Section 735 ( c )( 5 )( A ) of the Act instructs that Commerce is not to calculate an all-others rate using any zero or de minimis margins or any margins based on total facts available . 244 However , where the dumping margins for individually examined respondents are all zero , de minimis , or based entirely on facts available , section 735 ( c )( 5 )( B ) of the Act provides that Commerce may use “ any reasonable method to establish the estimated all-others rate for exporters and producers not
241
Id . at 55 ( citing KYD , Inc . v . United States , 836 F . Supp . 2d 1410 ( CIT 2012 ) ( quoting KYD , Inc . v . United States , 779 F . Supp . 2d 1361 , 1384 ( n . 24 ) ( CIT 2011 )).
242
See Arizona Tile et al .’ s Rebuttal Brief at 3-5 .
243
Id . at 4 ( citing Albemarle ).
244
See SAA at 873 .
53 Filed By : David Lindgren , Filed Date : 1 / 3 / 23 1:27 PM , Submission Status : Approved