Background
The case arose from Commerce’s sixth administrative review of an antidumping-duty order on multilayered wood flooring from China. Commerce assigned a 0% dumping margin to a cooperating mandatory respondent and an 85.13% adverse-facts-available margin to a noncooperating mandatory respondent. It initially calculated a 42.57% separate rate for certain non-individually examined companies by simply averaging those two rates.
Galleher Corp., Galleher LLC, and Wego International Floors LLC challenged that calculation in the Court of International Trade. After the Trade Court remanded Commerce’s use of a simple average for further explanation or reconsideration, Commerce used a volume-weighted average and reduced the separate rate to 31.63%. The appellants told the Trade Court that the remand results used the expected and lawful method and asked the court to uphold them.
The Court’s Holding
The Federal Circuit affirmed because the appellants forfeited their appellate arguments. Their challenge on appeal—that use of the noncooperating respondent’s adverse-facts-available rate produced an aberrational 31.63% separate rate—was not adequately presented to the Trade Court after Commerce recalculated the rate.
The court held that the appellants’ earlier arguments concerning the original 42.57% rate did not preserve a challenge to the revised 31.63% rate. The relevant facts had changed in the appellants’ favor when Commerce switched to a volume-weighted average, and the appellants neither explained why their prior arguments still applied nor objected in their remand comments. Instead, they expressly supported Commerce’s revised calculation.
Key Takeaways
- A party must renew or clearly adapt fact-dependent arguments when an agency remand materially changes the underlying determination.
- Arguments stated only vaguely or without explaining why they apply to a revised agency result may be forfeited on appeal.
- Endorsing remand results before the trial court can foreclose a later appellate challenge to those same results.
Why It Matters
The decision underscores that preservation in trade cases requires more than having raised a similar issue earlier in the litigation. When Commerce changes the methodology or resulting rate on remand, parties must identify any remaining objections in their comments to the Court of International Trade.
For importers challenging separate rates, the case also illustrates the risk of characterizing a result as “aberrational” without defining the factual or legal basis for that characterization.