CIT Sustains Weighted Average of 0, AFA Rate to Set Non-Individually Examined Respondents' AD Rate
The Court of International Trade on Sept. 18 sustained the Commerce Department's decision on remand to weight average zero percent and adverse facts available antidumping rates to set the rate for the non-individually examined respondents in the 2016-17 review of the AD order on multilayered wood flooring from China.
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Judge Richard Eaton said it's "evident that Commerce has followed the court's instruction" to use the weighted average instead of a simple average of the zero and AFA rates. Using the weighted average represents the use of the "expected method" under the statute and the Statement of Administrative Action accompanying the Uruguay Round Agreements Act.
The result is a 31.63% rate for the separate rate companies, which is down from the 42.57% mark calculated using the simple average.
The court previously remanded the matter in March given Commerce's departure from the expected method. While Commerce said the simple average amounted to an exercise of the expected method, the trade court disagreed, noting that the expected method would be a weighted average of the zero and AFA rates (see 2404020027). The court added that departure from the expected method wasn't permissible, since the agency can only drop this methodology when its use isn't feasible or would lead to an average that isn't reflective of the non-individually examined separate rate companies' potential dumping margins.
Eaton said that since no parties challenge the switch to the weighted average, the decision will be sustained. The judge added that the remaining issues in the case "have been rendered moot by Commerce's decision." The issues concerned whether the use of the AFA rate in the separate rate calculation led to an aberrational margin and a rate in violation of the Eighth Amendment bar against excessive fines or penalties.
(Fusong Jinlong Wooden Group Co. v. United States, Slip Op. 24-103, CIT Consol. # 19-00144, dated 09/18/24, Judge: Richard Eaton; Attorneys: Alexandra Salzman of deKieffer & Horgan for plaintiffs led by Fusong Jinlong Wooden Group Co.; Daniel Witkowski of Akin Gump for consolidated plaintiff Sino-Maple (JiangSu) Co.; David Craven of Craven Trade Law for consolidated plaintiffs led by A&W (Shanghai) Woods Co.; Adams Lee of Harris Sliwoski for consolidated plaintiff Zhejiang Dadongwu GreenHome Wood Co.; Lizbeth Levinson of Fox Rothschild for consolidated plaintiffs led by Baishan Huafeng Wooden Product Co.; Kavita Mohan of Grunfeld Desiderio for consolidated plaintiff Scholar Home (Shanghai) New Material Co.; Sarah Wyss of Mowry & Grimson for consolidated plaintiff Yihua Lifestyle Technology Co.; Gregory McCue of Steptoe for plaintiffs led by Evolutions Flooring; Mark Ludwikowski of Clark Hill for plaintiffs-intervenors led by Benxi Wood Co.; Brendan Jordan for defendant U.S. government; Stephanie Bell of Wiley Rein for defendant-intervenor American Manufacturers of Multilayered Wood Flooring)