Commerce Raises AD Rates for Non-Examined Respondents in AD Review on Chinese Wood Flooring

The Commerce Department on remand at the Court of International Trade said antidumping duty respondent Fusong Jinlong Group was eligible for a separate rate from the China-wide entity, though the agency ultimately kept the 85.13% margin for the exporter using adverse facts available. Following the remand, the only difference is that the non-individually examined respondents in the 2018-19 review of the AD order on multilayered wood flooring from China are now levied a 42.57% rate instead of the 0% margin taken from respondent Senmao Bamboo and Wood Industry Co. (American Manufacturers of Multilayered Wood Flooring v. U.S., CIT # 21-00595).

In March, the trade court remanded Commerce's consideration of whether Jinlong was eligible for a separate rate based on its separate rate certification, despite the company's failure to respond to Commerce's AD questionnaire. Since the agency accepted these certifications for other non-individually examined respondents, the court said this "disparate treatment of respondents who appear to be similarly situated is arbitrary and capricious."

On remand, the agency decided to grant Jinlong separate rate status "for the sole purpose of calculating the rate for the separate rate respondents that have entries enjoined for this period of review because Jinlong is not a party to this litigation and does not have entries enjoined for this period of review." Commerce hit Jinlong with total AFA given its failure to participate in the review. In selecting the total AFA rate, the agency said its practice is to pick between the highest rate alleged in the petition or the highest rate for any respondent from any segment of the proceeding. As a result, the agency used the same 85.13% rate for Jinlong since it was "applied in a prior segment of the proceeding."

Assigning Jinlong this rate allowed Commerce to take a simple average of the AFA rate and Senmao's 0% margin for the non-individually examined respondents. The petitioner cheered the result at the trade court, while the non-picked respondents said Commerce "should not deviate from this prior practice by applying a separate rate to Jinlong."