US Says Importers Waived, Forfeited Claims Against Separate AD Rate
Importers Wego and Galleher either waived or forfeited any arguments they may have against the Commerce Department's separate antidumping duty rate calculated in the 2016-17 review of the AD order on multilayered wood flooring from China, the U.S. argued. Filing a reply brief at the U.S. Court of Appeals for the Federal Circuit earlier this month, the government said the importers asked the Court of International Trade to sustain Commerce's remand results in which it calculated the separate rate, waiving any claims against the remand results (Galleher Corp. v. United States, Fed. Cir. # 25-1196).
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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 trade court 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).
On appeal, Wego and Galleher argued that the use of the AFA rate was "unreasonable" and unsupported when considered in the context of the historic margins imposed in all preceding reviews of the AD order (see 2502050023).
In reply, the U.S. said the importers waived their arguments or, to the extent the claims are not waived, they are forfeited. Wego and Galleher failed to contest the separate rate before Commerce and the trade court, and there's no "exceptional circumstance" that warrants the appellate court hearing the claims.
Should CAFC reach the merits of the arguments, the court should reject the importers' claim that Commerce erred in using the "expected method" in calculating the AD margin because one of the input rates was an AFA rate. "Binding precedent makes clear that the expected method of weight-averaging the dumping margins of the two mandatory respondents is the preferred method of calculating a separate rate," the brief said.
This is true even if the dumping margins of the mandatory respondents are all zero or AFA, the brief said. The government added that this separate rate also isn't "aberrational." While the importers argued that separate rates in past reviews must control the separate rate, "Wego and Galleher also do not show that the 31.63 percent separate rate calculated in the sixth administrative review is unconscionably high or otherwise unlawful," the U.S. said.