Intervenor Defends Commerce's Use of Transaction-Specific Margin for AFA Rate

The Court of International Trade should grant the government's motion to reconsider its decision to send back the Commerce Department's use of a transaction-specific margin for an adverse facts available rate it assigned to an antidumping duty respondent, the American Manufacturers of Multilayered Wood Flooring (AMMWF) argued in a Feb. 27 response (Fusong Jinlong Wooden Group v. United States, CIT Consol. # 19-00144).

The case involves the rate assigned to Sino-Maple in the sixth administrative review of the antidumping duty order on multilayered wood flooring from China. In the review, Commerce, noting it can use the highest dumping margin from any "segment of the proceeding" as the AFA rate, used the highest transaction-specific dumping margin calculated for the other respondent in the review for Sino-Maple. In a decision issued in January (see 2301130059), the Court of International Trade remanded Sino-Maple's rate. It said a segment means a reviewable part of the proceeding, meaning the margin must be able to be reviewed. Since a transaction-specific margin cannot be reviewed, it cannot be used, the court said.

The government filed for reconsideration on Jan 23., arguing that if the court had used the "correct interpretation of 19 U.S.C. § 1677e(d)" it would have sustained Commerce's method of selecting Sino-Maple’s AFA rate. A transaction-specific margin is a dumping margin from a "segment" of a proceeding within the meaning of the statute, DOJ said. The government argued that reconsideration was warranted because "the parties never preserved or presented the issue of whether 19 U.S.C. § 1677e(d) authorizes Commerce to use a transaction-specific margin as an adverse rate" (see 2301240021).

In its response brief in support of the motion for reconsideration, AMMWF argued that "Commerce relied on transaction-specific margins when selecting AFA rates prior to the enactment of the Trade Preferences Extension Act of 2015," which was intended to provide the agency with even more discretion in determining AFA rates, AMMWF said. "The Federal Circuit held that statutory language allowing Commerce to use 'any other information placed on the record' [is] unambiguous," AMMWF said. "As the statute continues to contain this same language, the plain language of the statute continues to permit Commerce to rely on a transaction-specific margin as the AFA rate."