Petitioner Says Commerce's Authority to Use Transaction-Specific Margin for AFA Not Raised Before CIT
The Court of International Trade should reconsider its finding that the Commerce Department is prohibited from using a transaction-specific margin when employing total adverse facts available, antidumping duty petitioner American Manufacturers of Multilayered Wood Flooring argued in a response to a U.S. motion for reconsideration. The petitioner said reconsideration is needed since the court "decided an issue that was not presented by any party" (Fusong Jinlong Wooden Group v. U.S., CIT # 19-00144).
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The case, involving the sixth administrative review of the AD order on multilayered wood flooring from China, saw Commerce find it can 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 U.S. sought reconsideration, explaining that because 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. To this, the court said it could still decide the issue because a company in the case asserted that Commerce's decision was "not in accordance with law," and that the issue was "simply a different legal theory" in support of the plaintiff's broader legal claim.
The petitioner disagreed, claiming a "blanket assertion that Commerce’s approach was 'not in accordance with law' cannot give the agency 'fair notice of what the claim is and the grounds upon which it rests.'” The brief added that "while courts may resolve different legal theories in support of properly presented issues, the issue of Commerce’s statutory authority was never raised."