Since Hardware (Guangzhou) Co. v. United States

• Decision Date: 30 December 2014
• Docket Number: Slip Op. 14–159.,Court No. 11–00106.
• Citation: 37 F.Supp.3d 1354
• Parties: SINCE HARDWARE (GUANGZHOU) CO., LTD., Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

37 F.Supp.3d 1354

SINCE HARDWARE (GUANGZHOU) CO., LTD., Plaintiff

v.UNITED STATES, Defendant.

Slip Op. 14–159.

Court No. 11–00106.

United States Court of International Trade.

Dec. 30, 2014.

William E. Perry and Emily Lawson, Dorsey & Whitney LLP of Seattle, WA, for Plaintiff Since Hardware (Guangzhou) Co., Ltd.

Gregory S. Menegaz, J. Kevin Horgan, and John J. Kenkel, DeKieffer & Horgan of Washington, DC, for Plaintiff–Intervenor Foshan Shunde.

Michael D. Snyder, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice for Defendant United States. With him on the brief were Stuart F. Delery, Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the brief were Nathanial J. Halvorson and Aman Kakar, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce of Washington, DC.

Frederick L. Ikenson, Larry Hampel, and Kierstan L. Carlson, Blank Rome LLP of Washington, DC, for Defendant–Intervenor Home Products International, Inc.

OPINION and ORDER

GORDON, Judge:

This consolidated action involves the U.S. Department of Commerce's (“Commerce”) fifth administrative review of the antidumping duty order covering Floor–Standing, Metal–Top Ironing Tables from China. See Floor–Standing, Metal–Top Ironing Tables and Certain Parts Thereof from the People's Republic of China, 76 Fed.Reg. 15,297 (Dep't of Commerce Mar. 21, 2011) (final results admin. review), as amended by 76 Fed.Reg. 23,543 (Dep't of Commerce Apr. 27, 2011) (amended final results admin. review); see also Issues and Decision Memorandum for Ironing Tables from China, A–570–888 (Mar. 22, 2011), available at http://ia.ita.doc.gov/frn/summary/PRC/2011–6558–1.pdf (last visited this date) (“Decision Memorandum ”). Before the court are the Final Results of Redetermination (July 8, 2014), ECF No. 162 (“Third Remand Results ”) filed by Commerce pursuant to Since Hardware (Guangzhou) Co. v. United States, 38 CIT ––––, 977 F.Supp.2d 1347 (2014) (“Since Hardware III ”); see also Final Results of Redetermination (Aug. 14, 2013), ECF No. 113 (“Second Remand Results ”); Since Hardware (Guangzhou) Co. v. United States, 37 CIT ––––, 911 F.Supp.2d 1362 (2013) (“Since Hardware II ”); Final Results of Redetermination (Dec. 17, 2012), ECF No. 85 (“First Remand Results ”); Since Hardware (Guangzhou) Co. v. United States, Consol. Court No. 11–106, ECF No. 81, 2012 WL 11802604 (CIT Aug. 14, 2012) (“Since Hardware I ”) (order remanding to Commerce). The court has jurisdiction pursuant to Section 516A(a)(2)(B)(iii) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2012),¹ and 28 U.S.C. § 1581(c) (2012).

Familiarity with the prior judicial and administrative decisions in this action is presumed.

Before the court are Foshan Shunde, and Since Hardware, and Home Products' comments on the Third Remand Results. Pl. Foshan Shunde's Comments on the U.S. Dep't of Commerce's Third Remand Redetermination (July 24, 2014), ECF No. 168 (“Foshan Comments”); Since Hardware (Guangzhou) Co. Objection to the Dep't of Commerce's Third Remand Results (July 24, 2014), ECF No. 170; Comments of Home Prods. Int'l, Inc. on the Final Results of Redetermination by the U.S. Dep't of Commerce (July 24, 2014), ECF No. 169 (“Home Products Comments”); see also Def.'s Resp. to Comments to the Remand Redetermination (Aug. 21, 2014), ECF No. 179.

Home Products has also moved for reconsideration of Since Hardware III . Mot. of Home Prods. Int'l, Inc. for Reh'g of Slip Op. 14–44, Insofar as it Relates to the Issue of Brokerage and Handling (May 15, 2014), ECF No. 153 (“Home Products Mot. for Reh'g”); see also Pls. Foshan Shunde and Since Hardware Joint Opp'n to Def.-Intervenor Home Prods. Int'l's Mot. for Recons. (June 23, 2014), ECF No. 158 (“Joint Reh'g Resp.”); Def.'s Resp. to Def.-Intervenor's Mot. for Recons. (June 23, 2014), ECF No. 159; Reply of Home Prods. Int'l, Inc. to the Resps. to its Mot. for Reh'g (July 14, 2014), ECF No. 166.

For the reasons that follow, the court denies Home Products' motion to reconsider, and sustains the Third Remand Results .

I. Standard of Review

For administrative reviews of antidumping duty orders, the court sustains Commerce's “determinations, findings, or conclusions” unless they are “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). More specifically, when reviewing agency determinations, findings, or conclusions for substantial evidence, the court assesses whether the agency action is reasonable given the record as a whole. Nippon Steel Corp. v. United States, 458 F.3d 1345, 1350–51 (Fed.Cir.2006). Substantial evidence has been described as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Dupont Teijin Films USA v. United States, 407 F.3d 1211, 1215 (Fed.Cir.2005) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) ). Substantial evidence has also been described as “something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence.” Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966). Fundamentally, though, “substantial evidence” is best understood as a word formula connoting reasonableness review. 3 Charles H. Koch, Jr., Administrative Law and Practice § 9.24[1] (3d ed. 2014). Therefore, when addressing a substantial evidence issue raised by a party, the court analyzes whether the challenged agency action “was reasonable given the circumstances presented by the whole record.” Edward D. Re, Bernard J. Babb, and Susan M. Koplin, 8 West's Fed. Forms, National Courts § 13342 (2d ed. 2014).

Separately, the two-step framework provided in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), governs judicial review of Commerce's interpretation of the antidumping statute. See United States v. Eurodif S.A., 555 U.S. 305, 316, 129 S.Ct. 878, 172 L.Ed.2d 679 (2009) (Commerce's “interpretation governs in the absence of unambiguous statutory language to the contrary or unreasonable resolution of language that is ambiguous.”).

II. Discussion

In its comments on the Third Remand Results, Foshan Shunde challenges Commerce's failure to adjust its brokerage and handling (“B & H”) valuation for document preparation and customs clearance costs as unreasonable and Commerce's zeroing methodology in the non-market economy context as inconsistent with law. Foshan Comments at 7–19. In its comments on the Third Remand Results, Since Hardware also challenges Commerce's surrogate valuation for B & H as unreasonable, though the court in its first decision in this action deemed the issue waived due to the incompleteness of Since Hardware's opening brief. Since Hardware I at 7. One portion of Commerce's remand results has been submitted under protest: Commerce's use of the $473.94 baseline for B & H that the court directed Commerce to use as the best available information.See Since Hardware III, 38 CIT at ––––, 977 F.Supp.2d at 1358–59, 1364. Commerce avers that its original choice of $645 remains reasonable on the administrative record. Third Remand Results at 6–9. Home Products agrees and argues that the court should remand to Commerce to calculate Foshan Shunde's surrogate B & H value using the $645 data point. Home Products Comments at 2. For the reasons that follow, the court sustains the Third Remand Results with the $473.94 baseline calculation as the “best available information.” The court also sustains Commerce's other B & H determinations, vacates that portion of Since Hardware II addressing the container size conversion factor, and sustains Commerce's justification for zeroing.

A. B & H Baseline Cost

In Since Hardware III the court reviewed Foshan Shunde's challenge to Commerce's calculation of its B & H costs. Commerce originally chose $645 as the best available information to value respondents' B & H costs, a number derived from the World Bank's Doing Business in India: 2010 publication. Commerce and the parties appear to have believed that number was an average derived from costs in 17 cities across India, which for Commerce represented a “broad market average.” First Remand Results at 18 ; see Decision Memorandum at 19 (describing the World Bank data point as, inter alia, a “broad market average” that is “a more credible and representative source than the data provided by Foshan Shunde that are limited to select Indian companies and ports”). Commerce and the parties, however, were incorrect about the $645 data point. That number was not a “broad market average” of multiple port city data points, but instead, a Mumbai-only data point. This was a somewhat surprising fundamental error with the administrative record because Commerce and the parties had been litigating the B & H issue since at least 2010 over the course of three administrative and three judicial proceedings. The complexity of surrogate valuations and margin calculations normally means that Commerce and the interested parties have a better command of the administrative record than the court.

Here, however, to help with closure on the B & H issue, the court in Since Hardware III provided a thorough explanation of the various B & H data as the record grew during successive remand proceedings. Since Hardware III, 38 CIT at ––––, 977 F.Supp.2d at 1354–55. As the court explained, only during the second remand proceedings when individual data points for all 17 Indian cities were on the record did Commerce and the parties appear to understand that the World Bank's $645 figure was in fact a Mumbai-only data point as opposed to a 17–city average. Id. The court also observed that the $645 Mumbai-only data point, the...