Importers Tell CAFC Separate Rate in Flooring AD Review Was 'Aberrational'
Importers Wego and Galleher didn't waive or forfeit their arguments against the Commerce Department's separate antidumping duty rate calculated in the administrative review of the antidumping duty order on multilayered wood flooring from China for the 2016-17 review period, the importers argued in a July 31 reply brief at the U.S. Court of Appeals for the Federal Circuit (Galleher Corp. v. U.S., Fed. Cir. # 25-1196).
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The importers also argued that while the government tries to "undermine the substance" of the arguments against the separate rate, which was calculated by taking a weighted average of an adverse facts available rate and a zero percent margin, it "fails to show why" the calculation of a "clearly aberrational rate was justified."
In the review, the agency used a weighted average of the zero percent and the 85.13% China-wide rate assigned to the two respondents to set the mark for the separate rate companies at 31.63%. The Court of International Trade sustained the move after rejecting the agency's original decision to use a simple average of the zero and AFA margins. CIT said the weighted average represented an appropriate use of the agency's "expected method" for calculating separate rates (see 2409180044).
In response to the appeal of this decision by Galleher and Wego, the U.S. said the importers waived or forfeited their claims against the separate rate by failing to contest the rate before Commerce and CIT (see 2506250057). The importers said it's clear from CAFC precedent and the underlying CIT decision that the importers didn't waive their right to challenge the separate rate, "since they did not intentionally relinquish or abandon a known right."
The arguments aren't forfeited, either, because the companies made the same claims at the proper time before the trade court. Thus, it's proper for the appellate court to consider the importers' claims on appeal, the brief said.
As for the validity of the separate rate, Galleher and Wego said Commerce is obligated under the AD statute to use methodologies that calculate companies' AD rates "as accurately as possible, including separate rate companies." The use of the AFA rate in calculating the separate AD rate "resulted in a distorted and aberrational margin that did not bear any relationship to the actual or potential dumping margins of the separate rate companies," the brief said, citing the Federal Circuit's decision in Bestpak Gifts & Crafts v. U.S.
The companies said a "simple analysis of historic margins for mandatory respondents and separate rate companies in the investigation and all prior administrative reviews of the Multilayered Wood Flooring from China antidumping orders clearly show that the rate calculated by Commerce on remand was not consistent with historic or potential antidumping duties."