Trade Court Vacates Part of Past Opinion Rejecting AFA Duty Calculation Methodology

The Court of International Trade in an Oct. 4 opinion sustained the Commerce Department's method for picking an adverse facts available rate for antidumping duty respondent Sino-Maple as part of the sixth review of the AD order on multilayered wood flooring from China. Judge Richard Eaton partially vacated his previous opinion in the case following oral argument with the parties, finding that Commerce was in fact not barred from using mandatory Jiangsu Senmao Bamboo and Wood Industry Co.'s "highest transaction-specific dumping margin" as Sino-Maple's AFA rate.

Eaton noted that since the case was previously remanded solely on this point, the agency need not submit a remand redetermination. The judge added that he will issue another opinion in the matter "deciding the issues upon which it previously reserved decision."

These include (1) Commerce's inclusion of Sino-Maple's AFA rate in calculating the separate rate, (2) the calculation of the separate AD rate, (3) whether the separate rate is "aberrational and not reflective of the separate rate respondents' potential dumping margins," and (4) whether the use of a total AFA rate in calculating the separate rate for the fully cooperative rate respondents violates the Eight Amendment of the U.S. Constitution.

In the AD review, in which Sino-Maple and Senmao were mandatory respondents, it was later discovered that Sino-Maple made sales to third-country manufacturers after reporting that it only made sales to unaffiliated buyers in the U.S. The third-country manufacturers then sold the goods to Sino-Maple's affiliate, Alpha Floors. Commerce told the respondent that those sales should be listed in the database as constructed export price sales.

Sino-Maple asked for more time to submit its sales database. The request was denied, leading to a total AFA rate of 85.13%, while Senmao received a zero percent margin. The separate rate was derived from a simple average of these two rates. Eaton sustained the use of AFA but sent back Commerce's use of Senmao's highest transaction-specific dumping margin (see 2301130059). Without explanation, the judge reversed course on this remand, sustaining the use of this mark for Sino-Maple.

(Fusong Jinlong Wooden Group Co. v. United States, Slip Op. 23-145, CIT Consol. #19-00144, dated 10/04/23; Judge: Richard Eaton; Attorneys: Alexandra Salzman of deKieffer & Horgan for plaintiffs led by Fusong Jinlong; Daniel Witkowski of Akin Gump for consolidated plaintiff Sino-Maple (Jiangsu) Co.; David Craven of Craven Trade Law for consolidated plaintiffs led by Huzhou Chenghang Wood Co.; Adams Lee of Harris Bricken for consolidated plaintiff Zhejiang Dadongwu GreenHome Wood Co.; Lizbeth Levinson of Fox Rothschild for consolidated plaintiff Baishan Huafeng Wooden Product Co.; Kavita Mohan of Grunfeld Desiderio for consolidated plaintiff Scholar Home (Shanghai) New Material Co.; Sara Wyss of Mowry & Grimson for consolidated plaintiff Yihua Lifestyle Technology Co.; Gregory McCue of Steptoe & Johnson for consolidated plaintiffs Struxtur and Evolutions Flooring; Mark Ludwikowski of Clark Hill for plaintiff-intervenor Lumber Liquidators Services; Sonia Orfield for defendant U.S. government; Stephanie Bell of Wiley Rein for defendant-intervenor American Manufacturers of Multilayered Wood Flooring)