US Tells CIT Commerce Can Use Transaction-Specific Margin as AFA Rate
The Commerce Department can use a transaction-specific margin as an adverse facts available rate, the government argued in a July 24 reply brief at the Court of International Trade supporting its motion for reconsideration. While exporter Lumber Liquidators argued that the statute only allows a calculated dumping margin and not one based solely on a single sales transaction, the U.S. said this interpretation cuts against the law's plain language, which says that when Commerce uses AFA, it can use any margin from any segment of the proceeding (Fusong Jinlong Wooden Group Co. v. United States, CIT Consol. # 19-00144).
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Pointing to language in 19 U.S.C. Section 1677e(d)(1), the government said Commerce can use any such margins, including the highest mark based on an evaluation by the agency that resulted in the use of AFA. "A 'dumping margin' is 'the amount by which the normal value exceeds the export price or constructed export price of the subject merchandise,'" the brief said. The 85.13% transaction-specific rate found in this review totals the amount by which normal value exceeded the export price, the government claimed. As a result, Commerce calculated a margin within the meaning of the law.
The case, involving the sixth administrative review of the AD order on multilayered wood flooring from China, saw Commerce use the highest dumping margin from any segment of the proceeding as the AFA rate. As a result, the agency assigned respondent Sino-Maple the highest transaction-specific dumping margin calculated for the other respondent. The trade court remanded, finding that a segment means a reviewable part of the proceeding. Since a transaction-specific margin cannot be reviewed, the court said it cannot be used (see 2301130059).
The government filed for reconsideration, claiming that since no party presented the issue of whether Commerce can rely on a transaction-specific margin as an AFA rate, the court could not rule on it (see 2306140016). Lumber Liquidators replied to this motion, claiming that the legislative history in the court's remand order backs the position that Commerce cannot use a transaction-specific margin as an AFA rate.
The U.S. countered by saying the legislative history of the Trade Preferences Extension Act of 2015, which amended Section 1677e(d), shows that Congress meant to give Commerce "move discretion in selecting AFA margins." Nothing in the legislative history shows that Congress meant ot rescind the authority to pick a transaction-specific mark. The government further argued that Lumber Liquidators failed to challenge the claim that reconsideration is warranted since the parties did not raise the issue before CIT or Commerce. As a result, "the Court should consider the plaintiff parties to have waived any argument opposing our position on this issue," the brief said.