Commerce Must Use China-Wide Rate for AD Respondent to Find All-Others Rate, Petitioner Argues
The Commerce Department violated the law by basing the margin for non-individually examined companies in an antidumping duty review only on a mandatory respondent with a zero rate, and not considering another mandatory respondent that got the China-wide rate for failing to cooperate, the American Manufacturers of Multilayered Wood Flooring (AMMWF) argued in a reply brief at the Court of International Trade. Even if the respondent does not cooperate, it remains an individually-examined company and must be used as part of the expected method for the non-individually examined respondents, AMMWF argued (American Manufacturers of Multilayered Wood Flooring v. United States, CIT #21-00595).
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The case concerns the 2018-2019 administrative review of the antidumping duty order on multilayered wood flooring from China in which Jinlong and Jiangsu Senmoa Bamboo served as the two mandatory respondents. Senmao was given a zero percent dumping margin while Jinglong didn't participate in the review, ultimately receiving the China-wide rate. Typically, when both respondents have either a zero, de minimis or adverse facts available rate, Commerce uses the expected method, whereby it weight averages the rates the mandatory respondents did receive.
In this review, though, Commerce said that the expected method was not feasible and that there was no evidence that the zero rate is not reasonably reflective of the non-examined respondents' potential dumping margins. This resulted in Commerce giving all the non-selected companies a zero percent dumping margin. AMMWF argued that the separate rate companies' margins should reflect the margins assigned to both mandatory respondents. The industry group further argued that this methodology for computing the separate rate would result in "dramatic year-to-year swings" in the duty rates that would "weaken the effectiveness and predictability" of the duty order (see 2112270023).
Commerce stuck with its initial position and AMMWF brought its case to CIT, arguing that Commerce improperly deviated from its expected method. In its reply, the U.S. said that Commerce applied the expected method to find the margin while using its "technical expertise" to take only Senmao's zero percent rate into account, and that AMMWF failed to exhaust its administrative remedies when arguing this point. The government argued that since the Tariff Act of 1930 does not specifically lay out how the agency is to find the margins for non-individually examined companies, Commerce could use its expertise to drop Jinlong's margin.
AMMWF took issue with this argument, finding that the company cannot be considered not individually reviewed when given the China-wide rate. "But in explaining why, the Government only repeats -- albeit at greater length -- Commerce’s baffling assertion that Jinlong, while under individual review, was simultaneously not under review at all, because it was part of the China-wide entity," the brief said. "But as AMMWF has previously explained, where a company that is selected as a mandatory respondent, it is 'individually examined' for purposes of 19 U.S.C. § 1673d(c)(5)." The U.S. conflated the concepts of whether a company is indivually investigated and whether it gets an individually calculated margin, the brief said.
As for the administrative exhaustion claim, while AMMWF conceded it didn't brief this point administratively, it argued that a "proper exception to the exhaustion doctrine applies, as the issue is one of pure law."