Primesource Building Products, Inc., Cheng Ch International Co., Ltd., China Staple… v. United States, Mid Continent Steel & Wire, Inc.

United States Court of Appeals
for the Federal Circuit
______________________
PRIMESOURCE BUILDING PRODUCTS, INC.,
CHENG CH INTERNATIONAL CO., LTD., CHINA
STAPLE ENTERPRISE CORP., DE FASTENERS
INC., HOYI PLUS CO., LTD., LIANG CHYUAN
INDUSTRIAL CO., LTD., TRIM INTERNATIONAL
INC., UJL INDUSTRIES CO., LTD., YU CHI
HARDWARE CO., LTD., ZON MON CO., LTD.,
Plaintiffs-Appellants
v.
UNITED STATES, MID CONTINENT STEEL &
WIRE, INC.,
Defendants-Appellees
______________________
2022-2128, 2022-2129
______________________
Appeals from the United States Court of International
Trade in Nos. 1:20-cv-03911-MAB, 1:20-cv-03934-MAB,
Chief Judge Mark A. Barnett.
______________________
Decided: August 7, 2024
______________________
BRYAN P ATRICK CENKO, Mowry & Grimson, PLLC,
Washington, DC, argued for plaintiff-appellant
PrimeSource Building Products, Inc. Also represented by
J ILL CRAMER , J EFFREY S. G RIMSON, YIXIN L I, K RISTIN HEIM
MOWRY , SARAH WYSS .
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PRIMESOURCE BUILDING PRODUCTS, INC. v. US 2
K ELLY ALICE SLATER , Appleton Luff Pte. Ltd.,
Washington, DC, argued for plaintiffs-appellants Cheng
Ch International Co., Ltd., China Staple Enterprise Corp.,
De Fasteners Inc., Hoyi Plus Co., Ltd., Liang Chyuan
Industrial Co., Ltd., Trim International Inc., UJL
Industries Co., Ltd., Yu Chi Hardware Co., Ltd., Zon Mon
Co., Ltd.
SOSUN BAE , Commercial Litigation Branch, Civil
Division, United States Department of Justice,
Washington, DC, argued for defendant-appellee United
States. Also represented by BRIAN M. BOYNTON, P ATRICIA
M. MCCARTHY ; VANIA WANG, Office of the Chief Counsel for
Trade Enforcement and Compliance, United States
Department of Commerce, Washington, DC.
ADAM H. G ORDON, The Bristol Group PLLC,
Washington, DC, argued for defendant-appellee Mid
Continent Steel & Wire, Inc. Also represented by
BENJAMIN J ACOB BAY , J ENNIFER MICHELE S MITH -VELUZ.
______________________
Before L OURIE, D YK, and STOLL , Circuit Judges.
Opinion for the court filed by Circuit Judge L OURIE.
Opinion concurring in part and dissenting in part filed by
Circuit Judge D YK.
L OURIE, Circuit Judge.
PrimeSource Building Products, Inc. (“PrimeSource”)
and Cheng Ch International Co., Ltd., et al.1 (“Cheng Ch”
1 China Staple Enterprise Corporation, De
Fasteners Inc., Hoyi Plus Co., Ltd., Liang Chyuan
Industrial Co., Ltd. (“Liang Chyuan”), Trim International
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PRIMESOURCE BUILDING PRODUCTS, INC. v. US 3
or the “non-selected respondents”) separately appeal from
the final judgment of the United States Court of
International Trade (the “Trade Court”) on the fourth
administrative review of an antidumping duty order on
certain steel nails from Taiwan. PrimeSource Bldg. Prod.,
Inc. v. United States, 581 F. Supp. 3d 1331 (Ct. Int’l Trade
2022) (“Decision”). The Trade Court sustained the United
States Department of Commerce’s (“Commerce”) use of the
expected method to calculate an all-others rate for the non-
selected respondents equal to the adverse facts available
(“AFA”) rate that was applied to all the mandatory
respondents in Commerce’s review. Id.
PrimeSource is an importer of steel nails from Taiwan
and appeals Commerce’s calculation and application of the
all-others rate solely with respect to Liang Chyuan, one of
the non-selected respondents. Cheng Ch appeals the rate
with respect to the non-selected respondents, generally.
Because Commerce’s calculation and application of the all-
others rate is supported by substantial evidence and
otherwise in accordance with law, we affirm.
BACKGROUND
I
We begin with a brief overview of the statutory
framework for determining antidumping duty rates.
Commerce is authorized by statute to impose
antidumping duties on goods sold in the United States
below fair market value. See 19 U.S.C. § 1673. Those
duties are equal to the amount by which the normal value
of the merchandise exceeds the export price, i.e., the
dumping margin. Id. at §§ 1673e(a)(1), 1677(35); see
Inc., UJL Industries Co., Ltd., Yu Chi Hardware Co., Ltd.,
and Zon Mon Co., Ltd.
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Albemarle Corp. & Subsidiaries v. United States, 821 F.3d
1345, 1348 (Fed. Cir. 2016).
Commerce is generally charged with calculating
individual dumping margins for each exporter of the
subject merchandise during an administrative review of a
countervailing duty order. 19 U.S.C. §§ 1677f–1(c)(1),
1675(a); Albemarle, 821 F.3d at 1348. However, when it is
“not practicable” to calculate a rate for each exporter
because of the large number, Commerce may limit its
examination to “a reasonable number” of exporters
constituting a statistically representative sample of all
known exporters or accounting for the largest volume of the
subject merchandise from the exporting country. 19 U.S.C.
§ 1677f–1(c)(2). The exporters selected for individual
examination are referred to as mandatory respondents.
See Yangzhou Bestpak Gifts & Crafts Co. v. United States,
716 F.3d 1370, 1372 (Fed. Cir. 2013) (“Bestpak”).
Commerce calculates dumping margins for the mandatory
respondents based on data provided by the respondents
through their responses to an antidumping questionnaire.
Id. at 1372. However, if a respondent fails to act to the best
of its ability to respond to the questionnaire, Commerce
may assign it a dumping margin based on an adverse
inference from the facts available in the petition or
elsewhere, i.e., based on AFA. 19 U.S.C. § 1677e(b).
When Commerce limits the number of individually
examined exporters under § 1677f–1(c)(2), it calculates an
“all-others” rate for the non-selected respondents by
weight-averaging the dumping margins assigned to the
mandatory respondents, excluding any margins that are
zero, de minimis, or determined entirely based on AFA.
19 U.S.C. § 1673d(c)(1)(B), (c)(5)(A). The statute provides
an exception when the dumping margins for all mandatory
respondents are zero, de minimis, or determined entirely
based on AFA; it instructs Commerce to “use any
reasonable method” to calculate the all-others rate,
including averaging the dumping margins for the
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PRIMESOURCE BUILDING PRODUCTS, INC. v. US 5
mandatory respondents. 19 U.S.C. § 1673d(c)(5)(B). The
method for calculating the all-others rate when that
exception applies is the primary issue on appeal.
Additional guidance on that provision is provided in
the Statement of Administrative Action (“SAA”), which is
legislative history that Congress has mandated “as an
authoritative expression concerning the interpretation and
application of the Tariff Act.” Bestpak, 716 F.3d at 1373;
19 U.S.C. § 3512(d). For the § 1673d(c)(5)(B) exception, the
SAA provides that:
In such situations, Commerce may use any
reasonable method to calculate the all others rate.
The expected method in such cases will be to
weight-average the zero and de minimis margins
and margins determined pursuant to the facts
available, provided that volume data is available.
However, if this method is not feasible, or if it
results in an average that would not be reasonably
reflective of potential dumping margins for non-
investigated exporters or producers, Commerce
may use other reasonable methods.
SAA, accompanying the Uruguay Round Agreements Act,
H.R. Doc. No. 103–316, at 873 (1994), reprinted in 1994
U.S.C.C.A.N. 4040, 4201.
The statute also provides non-selected respondents the
opportunity to complete the antidumping questionnaire to
request individual examination as a voluntary respondent.
19 U.S.C. § 1677m(a); Bestpak, 716 F.3d at 1373. The
voluntary respondent may submit its responses to the
questionnaire by the date specified for the respondents
“that were initially selected for examination.” 19 U.S.C.
§ 1677m(a). However, Commerce may still decline to
individually examine the voluntary respondent if it
determines that it would be unduly burdensome to do so.
Id.
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II
We now turn to Commerce’s fourth administrative
review of the antidumping duty order covering steel nails
from Taiwan with a July 1, 2018, to June 30, 2019 period
of review. See Certain Steel Nails From Taiwan, 85 Fed.
Reg. 76,014 (Dep’t Commerce Nov. 27, 2020) (“Final
Results”); see also Certain Steel Nails From the Republic of
Korea, Malaysia, the Sultanate of Oman, Taiwan, and the
Socialist Republic of Vietnam, 80 Fed. Reg. 39,994 (Dep’t
Commerce July 13, 2015). For the fourth administrative
review, Commerce determined that it was necessary to
limit the number of individually examined exporters in
accordance with 19 U.S.C. § 1677f–1(c)(2). It chose the two
largest exporters of the subject merchandise by volume as
mandatory respondents: Bonuts Hardware Logistics Co.,
LLC, (“Bonuts”) and Create Trade Co., Ltd., (“Create”).2
Commerce issued antidumping duty questionnaires to
Bonuts and Create on October 23, 2019, and October 28,
2019, respectively. Bonuts did not respond to the
questionnaire, and Create submitted a letter stating that
it had no reviewable sales because of Commerce’s reseller
policy. Commerce accepted the representations made by
Create and did not require it to respond to the
questionnaire. Commerce then selected Pro-Team to
replace Create as a mandatory respondent because it was
the next highest exporter by volume. On January 31, 2020,
2 The Customs and Border Protection data relied on
by Commerce in the selection process indicated that
Bonuts accounted for 73.67% of the entry volume of the
subject merchandise for the relevant period of review. J.A.
142. Create, the second largest exporter by volume,
accounted for 5.68%, and Pro-Team Coil Nail Enterprise
Inc. (“Pro-Team”), the third largest exporter by volume,
accounted for 4.32%. Id.
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Pro-Team submitted a letter indicating that it would not
respond to Commerce’s questionnaire.
On February 3, 2020, after learning that neither
mandatory respondent would respond to its antidumping
duty questionnaire, Liang Chuyan submitted a letter
requesting that Commerce calculate a dumping rate for it
based on its own data. It did not, however, submit
questionnaire responses or any data for the period of
review to Commerce. If Commerce would not give it a rate
calculated based on its own data, it alternatively requested
that Commerce pull forward and apply its calculated rate
from the previous administrative review or pull forward
and apply the all-others rate from the original
investigation.
Two months later, on April 6, 2020, Commerce
published its preliminary results assigning both
mandatory respondents an AFA rate of 78.17%, the highest
margin applied in prior segments of the proceeding, due to
their failure to respond to the questionnaires. Certain Steel
Nails From Taiwan, 85 Fed. Reg. 19,138 (Dep’t of
Commerce Apr. 6, 2020) (preliminary results); see Decision
Memorandum for Preliminary Results of Antidumping
Duty Administrative Review: Certain Steel Nails from
Taiwan; 2018–2019, J.A. 543. Commerce then used the
expected method to calculate the all-others rate for the
non-selected respondents. J.A. 543–44. Because both
mandatory respondents received an AFA rate of 78.17%,
the weighted average of those two rates—the expected
method—produced an all-others rate of 78.17%, which was
equal to the AFA rate. See id. After considering the
interested parties’ letters and case briefs, Commerce issued
its Final Results and the accompanying issues and decision
memorandum on November 27, 2020. See Final Results,
85 Fed. Reg. at 76,014; Issues and Decision Memorandum
for the Final Results of the Antidumping Duty
Administrative Review: Certain Steel Nails from Taiwan;
2018–2019, J.A. 612–33. It continued to assign the
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PRIMESOURCE BUILDING PRODUCTS, INC. v. US 8
antidumping duty rate of 78.17% to the mandatory
respondents, Bonuts and Pro-Team, and therefore to the
non-selected respondents as well, including Liang Chyuan.
J.A. 621–22 (citing Albemarle, 821 F.3d at 1352).
Commerce determined that the application of the
expected method to the non-selected respondents was
reasonable, despite all mandatory respondents receiving
an AFA rate, because it examined the largest exporters by
volume, which also accounted for the “vast majority” of
total volume during the period of review. J.A. 623–24.
Commerce examined the history of assigned rates in the
proceedings on certain steel nails from Taiwan and found
that those rates did not undermine the representativeness
of the mandatory respondents. Id. Finally, Commerce
determined that it could not deviate from the expected
method to pull forward previous review-specific rates as
requested by the non-selected respondents absent
substantial evidence in the record to justify doing so. J.A.
628–30. It determined that such evidence did not exist and
thus it continued to apply the 78.17% all-others rate
produced by the expected method to the non-selected
respondents. See J.A. 630.
Commerce further determined that Liang Chyuan was
not entitled to an individual rate. J.A. 630–31. In
particular, Commerce found that Liang Chyuan did not
meet the requirements to be selected as a mandatory
respondent because it was not the next largest producer
and that Liang Chyuan had not satisfied the statutory
requirements to be considered a voluntary respondent. Id.
It explained that Liang Chyuan’s letter expressing
willingness to submit questionnaire responses was not an
acceptable substitute for the statutory requirements to be
a voluntary respondent. J.A. 631. Commerce also rejected
Liang Chyuan’s alternative request to pull a rate forward
from an earlier review, finding that there was no record
evidence supporting Liang Chyuan’s claim that it would
have received the same result in the fourth review as it did
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PRIMESOURCE BUILDING PRODUCTS, INC. v. US 9
in the previous review, had it been selected for individual
examination. Id.
III
PrimeSource and Cheng Ch separately filed suit in the
Trade Court to challenge the rate received by the non-
selected respondents in Commerce’s Final Results.
Decision, 581 F. Supp. 3d at 1334. The court sustained the
Final Results, finding that Commerce’s reliance on the
expected method was supported by substantial evidence
and in accordance with the law. Id. at 1334–35. The court
also rejected PrimeSource’s attempt to distinguish Liang
Chyuan from the other non-selected respondents. Id. at
1343–44.
Specifically, the court held that Commerce’s use of the
expected method was lawful. Examining our case law and
the statutory framework, it determined 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.” Id. at 1338. It explained that, because the
largest exporters are assumed to be representative of the
non-selected respondents, Commerce is expected to use the
mandatory respondents’ rates to determine the rate to be
assigned to non-selected respondents. Id. at 1340.
The court then turned to whether or not the
respondents had provided sufficient evidence to rebut the
presumption of representativeness and thereby justify a
departure from the expected method. Id. at 1341. The
court noted that the respondents identified no evidence
from the current period of review to support their assertion
that the expected method was not reasonable. Id. It
therefore reviewed Commerce’s analysis of the history of
dumping margins assigned in the previous reviews. Id. at
1342. It determined that the prior dumping margins
“support Commerce’s conclusion that the rates fluctuated
significantly from review to review and, thus, that looking
to past reviews for evidence of current dumping lacks a
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PRIMESOURCE BUILDING PRODUCTS, INC. v. US 10
logical foundation.” Id. at 1343. It found that Commerce’s
determination “that there was insufficient evidence on the
record to rebut the presumed representativeness of the
mandatory respondents’ rates” was supported by
substantial evidence and it therefore sustained
Commerce’s use of the expected method. Id.
Finally, the Trade Court determined that that Liang
Chyuan was not entitled to a different rate than the other
non-examined respondents. Id. at 1343. It noted that non-
selected respondents are not generally entitled to
individually determined rates, but that they may qualify
as a voluntary respondent if they submit the necessary
information in a timely fashion. Id. at 1344. It found that
Liang Chyuan had not submitted the necessary
information and “[had] not express[ed] its willingness to
participate until February 3, 2020, roughly two months
after the deadlines.” Id. The court then explained that,
simply because Liang Chyuan received a calculated rate as
a mandatory respondent in an earlier review, that did not
entitle it to retain that rate for the present review. Id. The
Trade Court therefore sustained Commerce’s Final
Results.
PrimeSource and Cheng Ch timely appeal. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(5).
D ISCUSSION
We review decisions of the Trade Court concerning
Commerce’s antidumping determinations by applying the
same standard of review as the Trade Court. Bestpak,
716 F.3d at 1377. At the same time, “‘we give great weight
to the informed opinion’ of that court, which has expertise
in international trade matters.” Chemtall, Inc. v. United
States, 878 F.3d 1012, 1018 (Fed. Cir. 2017) (quoting
Schlumberger Tech. Corp. v. United States, 845 F.3d 1158,
1162 (Fed. Cir. 2017)). Commerce’s determination will be
sustained unless it is “unsupported by substantial evidence
on the record, or otherwise not in accordance with law.”
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19 U.S.C. § 1516a(b)(1)(B)(i). A finding is supported by
substantial evidence if a reasonable mind might accept the
evidence to support the finding. Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938). “An agency finding may
still be supported by substantial evidence even if two
inconsistent conclusions can be drawn from the evidence.”
Ad Hoc Shrimp Trade Action Comm. v. United States,
802 F.3d 1339, 1348 (Fed. Cir. 2015) (quoting Consolo v.
Fed. Mar. Comm’n, 383 U.S. 607, 619–20 (1966)).
PrimeSource challenges Commerce’s application of the
all-others rate solely with respect to Liang Chyuan, while
Cheng Ch challenges it with respect to all non-selected
respondents. Nevertheless, they raise two similar
challenges on appeal. They first argue that, even though
Commerce used the “expected method” to determine the
dumping margin for the non-selected respondents,
Commerce was required to demonstrate that the calculated
all-others rate was reasonably reflective of the non-selected
respondents’ potential dumping margin. They also argue
that Commerce’s application of the all-others rate, which
was equal to the AFA rate, to the non-selected respondents
was unreasonable and not supported by substantial
evidence. PrimeSource additionally argues that Commerce
erred by not assigning an individual rate to Liang Chyuan.
I
We first address Commerce’s use of the expected
method to calculate the all-others rate for the non-selected
respondents. PrimeSource’s arguments against
Commerce’s use of the expected method in the fourth
administrative review focus on two issues: (1) that the
statutory language places an affirmative burden on
Commerce to show that its chosen method produces results
reasonably reflective of the non-selected respondents’
potential dumping margin, and (2) that the presumption of
representativeness of the mandatory respondents was
rebutted by substantial evidence on the record, thus
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rendering the expected method unreasonable. See
PrimeSource Br. at 13. Cheng Ch similarly argues that
(1) the statute requires Commerce to select a method that
produces results reasonably reflective of the non-selected
respondents dumping margin, and (2) selecting a method
based solely on the AFA rate was unreasonable for the
cooperative non-selected respondents. See Cheng Ch Br. at
8–14.
A
Regarding Commerce’s burden with respect to the
expected method, both appellants point to the language of
19 U.S.C. § 1673d(c)(5)(B) instructing Commerce to select
“any reasonable method” to determine the all-others rate
for exporters and producers not individually investigated
when the rates calculated for the mandatory respondents
are either zero, de minimis, or based entirely on AFA.
PrimeSource argues that that language is “unequivocal”
and that the term “reasonable” imposes a duty on
Commerce to show that its chosen method, even when it is
the expected method, is reasonable as applied to the facts
of the case. PrimeSource Br. at 20. It continues that any
reading of the SAA that does not place a burden on
“Commerce to find that expected method results [are] a
rate that reasonably reflects the potential dumping
margins” of the non-selected respondents ignores that
statutory mandate. Id. at 22–23. Similarly, Cheng Ch
argues that it is unreasonable for Commerce to select a
methodology based entirely on AFA rates. Cheng Ch Br.
at 8. It argues that Commerce must undertake an
examination of the non-selected respondents to show that
its calculated rate reasonably reflects the non-selected
respondents’ actual dumping margin. Id. at 9–10. We
disagree.
Reading the SAA as prescribing the weight average as
the default or expected “reasonable method” does not
contradict the statute’s requirement that Commerce use
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PRIMESOURCE BUILDING PRODUCTS, INC. v. US 13
“any reasonable method.” The SAA is the congressionally
mandated “authoritative expression” of the Tariff Act in
judicial proceedings. 19 U.S.C. § 3512(d); Bestpak,
716 F.3d at 1373. The SAA directly addresses
§ 1673d(c)(5)(B) and provides that, when all individually
examined respondents receive rates of zero, de minimis, or
based entirely on AFA:
Commerce may use any reasonable method to
calculate the all others rate. The expected method
in such cases will be to weight-average the zero and
de minimis margins and margins determined
pursuant to the facts available, provided that
volume data is available.
SAA at 4201.
The SAA echoes the language of the statute
highlighted by the appellants—that Commerce “may use
any reasonable method” to calculate the all-others for the
non-selected respondents. Id. (emphasis added); 19 U.S.C.
§ 1673d(c)(5)(B). However, the SAA goes on to explain that
the reasonable method Commerce is “expected” to use to
calculate the all-others rate is “to weight-average the zero
and de minimis margins and margins determined
pursuant to the facts available, provided that volume data
is available.” SAA at 4201; Albemarle, 821 F.3d at 1352.
There is no contradiction between the statute and the SAA.
The statute requires selecting “any reasonable method,”
19 U.S.C. § 1673d(c)(5)(B), and the SAA merely prescribes
what the default methodology is expected to be when
“volume data is available,” SAA at 4201.
That is equally true when all mandatory respondents
receive an AFA rate. Neither the statute nor the SAA
distinguishes scenarios where the examined respondents
all received a zero, de minimis, or AFA rate, or some
combination of the three. See 19 U.S.C. § 1673d(c)(5)(B);
SAA at 4201. As such, the expected method is just
that—expected—even when all mandatory respondents
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receive an AFA rate. See Albemarle, 821 F.3d at 1352
(explaining that the SAA makes it clear that Commerce is
to apply the expected method even “when all individually
examined respondents are assigned de minimis margins”);
see also Bestpak, 716 F.3d at 1379 (explaining that
Ҥ 1673d(c)(5)(B) and the SAA explicitly allow Commerce to
factor both de minimis and AFA rates into the calculation
methodology”).
The SAA then goes on to provide additional guidance
as to when Commerce may deviate from the prescribed
methodology. Following the description of the expected
method above, the SAA provides:
However, if this method is not feasible, or if it
results in an average that would not be reasonably
reflective of potential dumping margins for non-
investigated exporters or producers, Commerce
may use other reasonable methods.
SAA at 4201.
As we explained in Albemarle, “Commerce may use
‘other reasonable methods,’ but only if Commerce
reasonably concludes that the expected method is ‘not
feasible’ or ‘would not be reasonably reflective of potential
dumping margins.’” 821 F.3d at 1352 (quoting SAA at
4201) (emphasis added); see also id. at 1348 n.3 (noting that
“[t]he [Trade Preferences Extension Act of 2015, Pub. L.
No. 114–27, 129 Stat. 362 (2015)] makes a number of
changes to the antidumping duty laws, none of which is
relevant to this case”). In other words, to deviate from the
expected method, Commerce must affirmatively
determine, based on substantial evidence, that the
expected method is not feasible or would not be reasonably
reflective of the potential dumping margin of the non-
selected respondents. Changzhou Hawd Flooring Co. v.
United States, 848 F.3d 1006, 1012 (Fed. Cir. 2017)
(“Commerce could not deviate from the expected method
unless it found, based on substantial evidence, that the
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PRIMESOURCE BUILDING PRODUCTS, INC. v. US 15
separate-rate firms’ dumping is different from that of the
mandatory respondents.”)
The burden is on Commerce to justify a departure from
the expected method, not to justify its use. Id.; Albemarle,
821 F.3d at 1353. The converse of that conclusion is also
true; when Commerce applies the expected method, the
party that desires Commerce to deviate from the expected
method bears the burden to identify and present
substantial evidence on the record that either the expected
method was “not feasible” or produced results not
“reasonably reflective of potential dumping margins for
non-investigated exporters or producers.” SAA at 4201; see
Decision at 1338. The Trade Court therefore correctly held
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.” Decision at 1338.
That conclusion is further bolstered by the statute’s
recognition of Commerce as an organization of finite
resources. See 19 U.S.C. § 1677f–1(c)(2) (allowing
Commerce to limit its investigation to a subset of the
exporters or producers when the large number of exporters
or producers means it is “not practicable” to determine
individual dumping margins for each); 19 U.S.C.
§ 1677m(a) (allowing Commerce to decline to investigate a
voluntary respondent when it would be “unduly
burdensome” to do so). Placing an affirmative burden on
Commerce to investigate the non-selected respondents and
determine that the expected method produced results
reasonably reflective of their dumping margin, as
suggested by appellants, would contravene the purpose of
those statutory provisions that allow Commerce to limit
the number of parties individually investigated under
certain circumstances. See Decision at 1341 (“Such an
interpretation would defeat the purpose of the respondent
selection process.”).
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PrimeSource argues that our decisions in Bestpak and
Bosun Tools Co. v. United States, No. 2021-1929, 2022 WL
94172 (Fed. Cir. Jan. 10, 2022), nevertheless support
placing a burden on Commerce to justify the use of the
expected method. PrimeSource Br. at 23–26. Those cases,
however, are distinguishable.
In Bestpak, Commerce did not employ the expected
method, and instead used “a simple average rather than a
weighted average.” 716 F.3d at 1378. In deviating from
the expected method, Commerce was required to use “other
reasonable methods.” Id. This court determined that the
administrative record lacked substantial evidence
supporting a conclusion that the chosen method was
reasonable as applied to the facts of that case. Id. Bestpak
does not address Commerce’s burden when it calculates the
all-others rate using the expected method.
Bosun is a nonprecedential opinion which therefore
does not control here. Regardless, it also does not support
PrimeSource’s position. Bosun presents a scenario similar
to the one here in that Commerce used the expected
method3 to calculate an all-others rate by averaging a zero
and an AFA rate. Bosun, 2022 WL 94172, at *3. Bosun
argued that the resulting rate was not reasonably
reflective of its potential dumping margin. Id. at *3.
Commerce reviewed the history of the rates in the
proceeding and came to the opposite conclusion. Id. at *5–
6. We affirmed Commerce’s decision as supported by
3 Commerce stated that it used the expected method
to calculate the all-others rate despite having used a simple
average rather than a weighted average. See Bosun Tools
Co. v. United States, 493 F. Supp. 3d 1351, 1354 (Ct. Int’l
Trade 2021). That was not challenged, and Commerce was
therefore treated as if it had used the expected method. See
generally Bosun, No. 2021-1929, ECF No. 18 (Appellant’s
opening brief on appeal.).
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PRIMESOURCE BUILDING PRODUCTS, INC. v. US 17
substantial evidence. Id. at *6. Bosun thus provides only
an example of a party challenging Commerce’s use of the
expected method and failing to meet its burden to show
that the results of the expected method were not
reasonably reflective of its potential dumping margin.
We therefore agree with the Trade Court’s analysis and
conclusion that “[n]othing in the statute, SAA, or
jurisprudence suggests” that Commerce has an affirmative
burden to justify its use of the expected method. Decision
at 1341. The Trade Court thus correctly concluded that
“the non-selected respondents bear the burden of providing
evidence that the results of the expected method would not
reasonably reflect the potential dumping margins of the
non-selected respondents.” Id.
There is no dispute that Commerce employed the
expected method. There is also no contention that the
expected method is not feasible. The remaining question is
therefore whether or not substantial evidence supports
Commerce’s determination that the non-selected
respondents failed to demonstrate that the expected
method produced results not reasonably reflective of their
potential dumping margins.
B
We next turn to Appellants’ arguments that the record
provides substantial evidence to rebut the presumption of
representativeness and therefore renders the expected
method unreasonable. The mandatory respondents are
presumed representative of the non-selected respondents.
Changzhou Hawd Flooring, 848 F.3d at 1012 (“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.” (quoting Albemarle, 821 F.3d at 1353)). That
presumption is essential to the justification for calculating
the “all-others” rate based on the weighted average of the
mandatory respondents. Id. However, the presumption of
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PRIMESOURCE BUILDING PRODUCTS, INC. v. US 18
representativeness is rebuttable, and a party wishing to
depart from the expected method can satisfy its burden by
showing that the non-examined respondents’ dumping is
different from the mandatory respondents. Id. Commerce
found that “the expected method is reasonable here
because the record evidence does not rebut the
presumption that the mandatory respondents are
representative.” J.A. 620.
Appellants first point to the fact that both mandatory
respondents received AFA rates rather than calculated
rates in the fourth administrative review. PrimeSource
argues that the presumption of representativeness has
been rebutted because the mandatory respondents’ rates
were based entirely on AFA rates. Specifically, it argues
that the use of an AFA rate creates a weak presumption of
representativeness because it is “divorced from a
respondents’ [sic] contemporaneous data on the record,”
PrimeSource Br. at 32, and that an AFA rate based on data
from the petition cannot constitute substantial evidence to
support the presumption of representativeness in the
fourth administrative review, id. at 35. Cheng Ch similarly
takes issue with the application of the AFA rate to the non-
selected respondents, asserting that the AFA rate has no
relationship to the administrative record in the fourth
administrative review and that it is merely a punitive
measure for non-cooperative respondents. Cheng Ch. Br.
at 11–12.
Those arguments are unpersuasive. Appellants
attempt to shift the burden to Commerce to show that the
mandatory respondents’ AFA rate was similar to the non-
selected respondents’ potential dumping margin during the
fourth administrative review. But as earlier stated, it is
their burden to justify a departure from the expected
method. Here, they fail to point to any information from
the fourth administrative review to rebut the presumption
of representativeness of the mandatory respondents.
Instead, they place too much weight on the fact that the
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PRIMESOURCE BUILDING PRODUCTS, INC. v. US 19
mandatory respondents received AFA rates based on data
from the original petition.
The mere fact that all mandatory respondents received
an AFA rate cannot, in and of itself, undermine the
presumption of representativeness. First, the respondent
selection process under 19 U.S.C. § 1677f–1(c)(2) supports
the presumption of representativeness based on exporters’
volume, not the results of Commerce’s dumping margin
analysis. Albemarle, 821 F.3d at 1353; Changzhou Hawd
Flooring, 848 F.3d at 1012. Additionally, as discussed
above, the statute and SAA expressly require Commerce to
factor in AFA rates when calculating the all-others rate
using the expected method. See 19 U.S.C. § 1673d(c)(5)(B);
SAA at 4201. Finally, under 19 U.S.C. § 1677e(b)(2), when
determining an AFA rate, Commerce may rely on
information from prior proceedings, including the original
petition. In fact, Commerce must rely on that earlier
information because receipt of an AFA rate means the
respondent failed to provide adequate information to
calculate a dumping margin in the current proceeding. See
19 U.S.C. § 1677e(b)(1). An AFA rate will therefore always
be at least partially based on data that are not
contemporaneous to the current proceeding. Simply
pointing out the realities of the statutory framework when
a respondent receives an AFA rate does nothing to
undermine the presumption of representativeness of the
mandatory respondents.
Furthermore, Appellants’ assertion that the
mandatory respondents’ AFA rate is somehow punitive or
divorced from any contemporaneous evidence is incorrect.
Receiving an AFA rate is not a punitive measure, “[r]ather,
it reflects a common sense inference that the highest prior
margin is the most probative evidence of current margins
because, if it were not so, the importer, knowing of the rule,
would have produced current information showing the
margin to be less.” Rhone Poulenc, Inc. v. United States,
899 F.2d 1185, 1190 (Fed. Cir. 1990). Here, the
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PRIMESOURCE BUILDING PRODUCTS, INC. v. US 20
respondents were aware of the 78.17% AFA rate because
that rate had been applied in previous proceedings.
Decision at 1341. The mandatory respondents’ decision to
not provide questionnaire responses is therefore at least
circumstantial, contemporaneous evidence that their
dumping margin was equal to or higher than the AFA rate
during the relevant period of review. That inference is
particularly strong with a respondent such as Pro-Team
because it had complied in prior proceedings and
previously received lower calculated rates between 0% and
6.72%, but then chose to not provide questionnaire
responses in the fourth administrative review, essentially
guaranteeing that it would receive the 78.17% AFA rate.
See Decision at 1342; J.A. 523. We therefore reject
Appellants’ arguments that the mandatory respondents’
receipt of the AFA rate provides substantial evidence to
undermine the presumption of representativeness.
Appellants next assert that the all-others rate applied
to the non-selected respondents was unreasonable and not
supported by substantial evidence because the history of
calculated rates in the proceeding on certain steel nails
from Taiwan were significantly lower than the AFA rate
assigned to the mandatory respondents in the fourth
administrative review. PrimeSource Br. at 42; Cheng Ch
Br. at 13. Specifically, PrimeSource points to the rates
assigned to individually investigated respondents from the
investigation and first through third periods of review
(“POR”), summarized in the chart below.
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PRIMESOURCE BUILDING PRODUCTS, INC. v. US 21
PrimeSource Br. at 39.
PrimeSource argues that rather than a trend of non-
cooperation, the history of rates in the proceeding
demonstrates that respondents received low, calculated
rates far more often than AFA rates. Id. at 38–40. And it
argues that the history of calculated rates shows numerous
zero, de minimis, or other low calculated rates making the
application of the AFA rate to all non-selected respondents
in the fourth administrative review unreasonable. Id.
With respect to Liang Chyuan, PrimeSource argues that its
offer to submit questionnaire responses in the fourth
administrative review and its calculated rate of 2.54% in
the third administrative review establish that its dumping
margin was likely lower than the AFA rate, and therefore
that Commerce’s decision to apply the all-others rate to
Liang Chyuan was not supported by substantial evidence.
PrimeSource Br. at 40–42.
Here, Commerce considered and rejected Appellants’
suggestion of a pattern of lower rates, instead finding a
history of AFA rate usage in previous reviews. See J.A.
624–26. Commerce “reviewed the information proffered by
[respondents], which [was] a listing of the calculated rates
throughout this proceeding, including the investigation”
ranging from 0% to 27.69%, which respondents
characterized as low margins. Id. at 624–25. Commerce
determined that it was improper to look at only the
calculated rates and ignore the AFA rates of 78.17%
previously assigned in the proceeding because it “assigned
AFA in three out of five segments,” which was “more than
half of the reviews.” Id. at 625. It found that there was a
pattern of non-cooperation and receipt of AFA rates,
including from the mandatory respondents in the fourth
administrative review. Id. Pro-Team, “a mandatory
respondent in every segment, including the investigation,
has been assigned margins ranging from zero to 78.17.” Id.
Additionally, it found that “Bonuts[] has a history of
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PRIMESOURCE BUILDING PRODUCTS, INC. v. US 22
uncooperative behavior, having been assigned AFA in [the
first and second administrative review] and this review.”
Id. Relying on that evidence, Commerce reasonably
determined that examining only the calculated rates would
not provide a full picture of the historical rates in the
proceeding.
Commerce went on to examine the calculated rates of
another frequent respondent, Unicatch. Id. at 626. It
determined that the 27.69% calculated rate in the third
administrative review was not, in fact, “low,” as asserted
by respondents. Id. Rather, it demonstrated that “the
percentage increase in Unicatch’s margin from [the second
to third administrative review] is 350 percent.” Id.
Commerce also noted the lack of evidence of review-
specific rates for the vast majority of non-examined
companies, finding that “73 of 75 of the non-examined
companies have never been examined in any segment of
the proceeding,” and that “there is no evidence on this
record or any other record that the 78.17 percent rate does
not reflect their commercial reality.” J.A. 626. Weighing
those findings together, Commerce determined that, from
its “analysis of all the assigned rates, segment to segment,
it is apparent that there is no pattern of ‘low’ margins in
this proceeding, as claimed” by the respondents. Id. It
therefore determined that “the record does not show that
the assumed representativeness (as recognized in
Albemarle) for mandatory respondents should not apply”
and that the facts did not present a situation where the use
of the expected method was unreasonable. Id.
Commerce engaged with the evidence of record and
came to the reasonable conclusion that the facts of the case
did not support a departure from the expected method.
Commerce’s decision to apply the expected method,
resulting in a 78.17% all-others rate, to the non-selected
respondents was therefore supported by substantial
evidence and in accordance with the law. See Albemarle,
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PRIMESOURCE BUILDING PRODUCTS, INC. v. US 23
821 F.3d at 1352 (“Commerce may use ‘other reasonable
methods,’ but only if Commerce reasonably concludes that
the expected method is ‘not feasible’ or ‘would not be
reasonably reflective of potential dumping margins.’”
(quoting SAA at 4201)); Changzhou Hawd Flooring,
848 F.3d at 1012.
PrimeSource’s attempt to distinguish Liang Chyuan
from the other non-selected respondents is also
unpersuasive. See PrimeSource Br. at 41–46. Although it
is true that Liang Chyuan offered to submit questionnaire
responses, it did not do so until it was aware that both
mandatory respondents would likely receive AFA rates,
J.A. 528, and it never followed up to submit any
questionnaire responses, J.A. 631. Liang Chyuan is thus
no different from the other non-selected respondents in
that the record contains no contemporaneous data
regarding its potential dumping margin. Additionally, its
rate moving from 2.74% in the third administrative review
to 78.17% after the fourth administrative review is not
unreasonable. As Commerce identified, Pro-Team, a
mandatory respondent in the initial investigation and
every administrative review received calculated rates as
low as 0% but then received the AFA rate of 78.17% in the
fourth administrative review. J.A. 625. In fact, similar to
Liang Chyuan, Pro-Team’s rate moved from a single digit
rate, 6.72%, in the third review to the AFA rate in the
fourth administrative review. See Decision at 1342.
Without more information, Liang Chyuan’s calculated
margin of 2.74% in the third administrative review does
not demonstrate that the 78.17% all-others rate in the
fourth administrative review is unreasonable as “[t]here is
no basis to simply assume that the underlying facts or
calculated dumping margins remain the same from period
to period.” Albemarle, 821 F.3d at 1356. Commerce
therefore reasonably determined that “there is no record
evidence substantiating [Liang Chyuan]’s claim that it
would have received the same result in this review as it did
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PRIMESOURCE BUILDING PRODUCTS, INC. v. US 24
in a previous review, had it been selected for individual
examination.” J.A. 631.
Appellants additionally argue that pulling forward
rates from earlier administrative reviews would have been
a more reasonable method for calculating a dumping
margin for the non-selected respondents. PrimeSource Br.
at 46; Cheng Ch Br. at 13. We need not address that
argument. When all mandatory respondents receive a rate
that is zero, de minimis, or based entirely on AFA rates,
Commerce’s statutory obligation is to select “any
reasonable method,” not the most reasonable method.
19 U.S.C. § 1673d(c)(5)(B) (emphasis added). The SAA
dictates that that method must be the expected method
unless it is not feasible or not reasonable—only then may
Commerce select “other reasonable methods.” See SAA at
4201. Here, Commerce’s decision not to depart from the
expected method was in accordance with the law and
supported by substantial evidence. There is thus no need
to evaluate Appellants’ other suggested method.
II
Finally, we turn to PrimeSource’s argument that Liang
Chyuan was entitled to an individual rate in the fourth
administrative review. PrimeSource argues that Liang
Chyuan was not required to “submit a full questionnaire
response to be considered a voluntary respondent.”
PrimeSource Br. at 48. It argues that because Liang
Chyuan gave Commerce notice that it was willing to
submit a response, Commerce should have used its
authority to solicit information from Liang Chyuan. Id. at
49–50.
We disagree, as that argument is expressly foreclosed
by the text of the statute.
The statute provides the requirements to be considered
as a voluntary respondent. Relevant here is that the
respondent “submits to the administering authority the
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PRIMESOURCE BUILDING PRODUCTS, INC. v. US 25
information requested from exporters or producers selected
for examination . . . by the date specified . . . for exporters
and producers that were initially selected for examination.”
19 U.S.C. § 1677m(a)(1). Liang Chyuan failed to satisfy
that requirement. It did not submit responses to the
antidumping questionnaire provided to the mandatory
respondents at all, and its letter expressing willingness to
submit response did not arrive until “well after the
deadlines” for the initially selected mandatory
respondents. J.A. 631. Furthermore, there is no
requirement for Commerce to solicit information from a
potential voluntary respondent. Commerce therefore
correctly determined that Liang Chyuan’s “‘letter of
willingness’ to be a respondent was an unacceptable
substitute for the requirements established under
[§ 1677m(a)] of the Act.” Id.
Notably, Liang Chyuan’s letter did not arrive until
after it was aware that all mandatory respondents were to
receive an AFA rate based on their non-cooperation. See
J.A. 527 (“[T]he dumping rates for both mandatory
respondents in this proceeding could be calculated on the
basis of total AFA, as they are non-cooperative. However,
that does not mean that the dumping rates calculated for
unsampled respondents such as [Liang Chyuan] should be
based on total AFA.”). The statutory directive for
voluntary respondents to submit the request information
“by the date specified . . . for exporters and producers that
were initially selected for examination” indicates that that
type of wait-and-see approach is not sanctioned. 19 U.S.C.
§ 1677m(a)(1). Commerce’s decision to not grant Liang
Chyuan an individual rate was therefore in accordance
with the law.
CONCLUSION
We have considered Appellants’ remaining arguments,
and do not find them persuasive. For the above reasons,
we conclude that Commerce’s Final Results decision is
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PRIMESOURCE BUILDING PRODUCTS, INC. v. US 26
supported by substantial evidence and in accordance with
the law. Accordingly, the Trade Court’s decision sustaining
Commerce’s Final Results is affirmed.
AFFIRMED
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United States Court of Appeals
for the Federal Circuit
______________________
PRIMESOURCE BUILDING PRODUCTS, INC.,
CHENG CH INTERNATIONAL CO., LTD., CHINA
STAPLE ENTERPRISE CORP., DE FASTENERS
INC., HOYI PLUS CO., LTD., LIANG CHYUAN
INDUSTRIAL CO., LTD., TRIM INTERNATIONAL
INC., UJL INDUSTRIES CO., LTD., YU CHI
HARDWARE CO., LTD., ZON MON CO., LTD.,
Plaintiffs-Appellants
v.
UNITED STATES, MID CONTINENT STEEL &
WIRE, INC.,
Defendants-Appellees
______________________
2022-2128, 2022-2129
______________________
Appeals from the United States Court of International
Trade in Nos. 1:20-cv-03911-MAB, 1:20-cv-03934-MAB,
Chief Judge Mark A. Barnett.
______________________
D YK, Circuit Judge, concurring in part and dissenting in
part.1
1 I agree with the majority that, based on this record,
there is no requirement that Liang Chyuan be individually
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PRIMESOURCE BUILDING PRODUCTS, INC. v. US 2
This appeal presents the question of whether Com-
merce can treat an adverse facts available (“AFA”) rate as
presumptively reasonable when calculating the all others
rate for non-selected respondents, particularly where there
is evidence that the AFA rate is not a reasonable approxi-
mation of the all others rate. I respectfully dissent from
the majority’s conclusion that an AFA rate is presump-
tively reasonable even though Congress in 2015 deter-
mined that an AFA rate need not be reasonable, and from
its conclusion that the record fails to show that the all oth-
ers rate is unreasonable.
I
Dumping margins for all importers are generally deter-
mined based on the calculation of dumping margins for the
individually examined respondents (the largest importers).
Those margins are generally presumed to be representa-
tive of the “all others” rates. Albemarle Corp. & Subsidi-
aries v. United States, 821 F.3d 1345, 1353 (Fed. Cir. 2016).
However, a problem arises if the mandatory respondents
refuse to cooperate, and Commerce cannot calculate a rate
for the mandatory respondents and assigns them a so-
called AFA rate. The Statement of Administrative Action
(“SAA”) accompanying the Uruguay Round Agreements
Act provides that the “expected method in such cases will
be to weight-average the zero and de minimis margins and
margins determined pursuant to the facts available.”
H. DOC. NO. 103-316, at 873 (1994), reprinted in 1994
U.S.C.C.A.N. 4040, 4201. Here there are no de minimis
rates, and Commerce used an average of the two AFA rates
as the all others rate. The statute gives Commerce wide
discretion in calculating an AFA rate, and there is no con-
tention in this case that the AFA rate for the mandatory
respondents was not accurate. But the AFA rate calculated
examined, and therefore join Part II of the majority opin-
ion.
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PRIMESOURCE BUILDING PRODUCTS, INC. v. US 3
for mandatory respondents can only be used as an all oth-
ers rate if the rate is “reasonable” under the circumstances.
19 U.S.C. § 1673d(c)(5); see also SAA, 1994 U.S.C.C.A.N. at
4201.
Before 2015, a presumption that the overall AFA rate
was reasonable was supported by the prior version of the
statute because the AFA rate itself had to be commercially
reasonable. See Gallant Ocean (Thailand) Co. v. United
States, 602 F.3d 1319, 1323 (Fed. Cir. 2010). But, as appel-
lants point out, Cheng Ch Br. at 12, in 2015 Congress
amended the statute to eliminate any such requirement.
See Trade Preferences Extension Act of 2015, Pub. L. No.
114-27, § 502, 129 Stat. 362, 384. The purpose of the 2015
amendments was to create additional incentives to cooper-
ate with Commerce in investigations. The 2015 amend-
ments removed the requirement of commercial
reasonableness for AFA rates in order to address situations
in which “a foreign party fails to cooperate with the
agency’s request for information in a proceeding.” S. REP .
N O. 114-45, at 37 (2015). Under the 2015 amendment,
when AFA rates are applied to respondents that “failed to
cooperate,” Commerce no longer has an obligation to
demonstrate that the rate “reflects an alleged commercial
reality of the interested party.” 19 U.S.C. §§ 1677e(b)(1),
1677e(d)(3)(B).
In such cases after 2015, where, as here, an AFA rate
is applied to the non-examined parties, there is no basis for
assuming that the AFA rate is reasonable as to the non-
examined parties. The 2015 amendments did not change
Commerce’s obligation to use a “reasonable method” to set
the all others rate, which applies to cooperative non-se-
lected parties. See 19 U.S.C. § 1673d(c)(5). Rather, the
reasonable method requirement was left in place. Thus,
while it may have been safe to assume that an AFA rate
was presumptively reasonable as applied to the non-exam-
ined parties before the 2015 amendments, the 2015
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PRIMESOURCE BUILDING PRODUCTS, INC. v. US 4
amendments explicitly removed any reasonableness re-
quirement for calculating an AFA rate.
In this case, appellants contend that the burden is on
Commerce to establish reasonableness. The majority re-
jects that contention on the ground that the “expected
method” provided in the statute is to use AFA rates if there
are no other rates available. But an “expected” method is
not necessarily a reasonable method. “Expected” and “rea-
sonable” are different words carrying different require-
ments, and the mere fact that the method resulting in an
AFA all others rate is “expected” does not render it “rea-
sonable.” In particular, the problem with the majority’s
reasoning is that, after the 2015 amendments, there is no
basis for assuming that the expected method rate is a rea-
sonable rate, nor any legislative history suggesting that it
is presumptively reasonable for the non-examined parties.
Because an AFA rate no longer must reflect commercial re-
ality, there can be no presumption that an AFA rate result-
ing from the so-called “expected method” is necessarily
“reasonable” for the cooperating respondents.
II
As appellants argue, there was no finding that the AFA
rate of 78.17% was reasonable as applied to the non-exam-
ined parties (apart from the fact that it was the rate deter-
mined for the largest importers), and no evidence to
support a finding that here the AFA rate was reasonable
as applied to the non-examined parties. The AFA rate was
the rate applied in each of the previous reviews to non-co-
operative individually examined parties, not the rate that
was applied to non-examined parties. The non-examined
parties never received the 78.17% rate. In other words, the
78.17% AFA rate was itself not considered to be reasonably
reflective of the all others parties’ dumping margins in the
prior periods. Rather, these parties received at the highest
a 35.30% rate reflecting the average of the AFA rate and a
calculated zero percent rate. First Review of Certain Steel
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PRIMESOURCE BUILDING PRODUCTS, INC. v. US 5
Nails from Taiwan, 87 Fed. Reg. 45,758, 45,759 (July 29,
2022). There is also no subsequent data to suggest that the
78.17% rate is reflective of the actual dumping margins of
the all others parties. While Commerce found it pertinent
that the dumping margins had increased since the first re-
view, none of the calculated rates in prior proceedings re-
motely approach the 78.17% rate applied to the non-
examined parties.
There is other significant evidence that the 78.17% rate
was not reasonable as applied to the non-examined parties.
In the initial investigation, Commerce calculated a margin
of 2.16% for the only mandatory respondent found to be
dumping, which “resulted in a revised rate of 2.16 percent
for all other producers and exporters.” Investigation of
Certain Steel Nails from Taiwan, 82 Fed. Reg. 55,090
(Nov. 20, 2017). In the first review period, which applied
the AFA rate to a non-cooperative mandatory respondent
for the first time, Commerce calculated a margin of zero for
one of the largest importers and a “rate of 35.30 percent for
the non-examined companies.” 87 Fed. Reg. at 45,759.
Similarly, in the second and third reviews Commerce cal-
culated margins of zero percent, 2.54%, 6.16%, 6.72%, and
27.69%, and assigned a rate of 12.90% to non-examined
companies. See Second Review of Certain Steel Nails from
Taiwan, 84 Fed. Reg. 11,506, 11,507 (Mar. 27, 2019); Third
Review of Certain Steel Nails from Taiwan, 85 Fed. Reg.
14,635, 14,636 (Mar. 13, 2020). Here, there is simply no
basis for assuming that the AFA rate is reasonable for the
non-examined parties.
As we said in Albemarle, outside of the AFA context
“accuracy and fairness must be Commerce’s primary objec-
tives.” 821 F.3d at 1354; see also Yangzhou Bestpak Gifts
& Crafts Co. v. United States, 716 F.3d 1370, 1379 (Fed.
Cir. 2013) (“An overriding purpose of Commerce’s admin-
istration of antidumping laws is to calculate dumping mar-
gins as accurately as possible.”). Commerce’s approach
here is neither accurate nor fair.
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PRIMESOURCE BUILDING PRODUCTS, INC. v. US 6
I would vacate and remand with instructions for Com-
merce to reconsider the all others rate.
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