Trade Courts Update for Week of January 20, 2016

United States Court of Appeals for the Federal Circuit


Federal Circuit Affirmed Commerce Decision on AFA Rate

In Nan Ya Plastics Corporation, Ltd. v. United States,  Court No. 2015-1054 (January 19, 2016), Nan Ya  Plastics Corporation, Ltd. (“Nan Ya”) challenged the Court of International Trade’s sustaining  the 74.34% adverse facts available rate applied to its entries.  The instant appeal concerns the United States Department of Commerce’s (“Commerce”) administrative review of the antidumping duty order covering polyethylene terephthalate film, sheet, and strip from Taiwan (“subject merchandise”) for the period July 1, 2009 to June 30, 2010. See Polyethylene Terephthalate Film, Sheet, and Strip from Taiwan, 76 Fed. Reg. 76,941 (Dep’t of Commerce Dec. 9, 2011) (“Final Results”) (final admin. review).  Specifically, Nan Ya alleged that Commerce unlawfully interpreted “any other information placed on the record” in 19 U.S.C.

§ 1677e(b)(4) as allowing it to use the highest transaction specific margin on the record of the review. 

However, the court held that section 1677 does not place any limitations regarding what margin is used.   The Federal Circuit held that phrase “any other information placed on the record” in 19 U.S.C. § 1677e(b)(4) is not ambiguous and held that the statute’s plain terms permit the agency to apply Shinkong Materials Technology Corporation’s (the other mandatory respondent in the review) highest transaction-specific margin as Nan Ya’s adverse facts available rate.   Accordingly, Commerce may decide on a case-by-case basis what margin to apply for an adverse facts available rate. Moreover, a rate may be applied that will induce a respondent to cooperate in the future. As to corroboration, the Federal Circuit held that section 1677 does not require corroboration for facts obtained during an investigation (primary information). Finally, because Nan Ya did not exhaust its remedies in arguing for other methodologies to arrive at the applicable margin, the Federal Circuit did not address Nan Ya’s arguments regarding alternative methodologies.  For all these reasons, the Federal Circuit affirmed the Court of International Trade’s decision.