Lifestyle Enter. Inc. v. United States

• Decision Date: 11 February 2011
• Docket Number: Slip Op. 11–16.Court No. 09–00378.
• Citation: 768 F.Supp.2d 1286,33 ITRD 1175
• Parties: LIFESTYLE ENTERPRISE, INC., Trade Masters of Texas, Inc., Emerald Home Furnishings, LLC, Ron's Warehouse Furniture d/b/a Vineyard Furniture International LLC, Plaintiffs,andDream Rooms Furniture (Shanghai) Co., Ltd., Guangdong Yihua Timber Industry, Co., Ltd., Consolidated Plaintiffs,Orient International Holding Shanghai Foreign Trade Co., Ltd., Intervenor Plaintiff,v.UNITED STATES, United States Department of Commerce, Defendants,andAmerican Furniture Manufacturers Committee for Legal Trade, Vaughan–Bassett Furniture Company, Inc., Intervenor Defendants.
• Court: U.S. Court of International Trade

768 F.Supp.2d 1286

33 ITRD 1175

LIFESTYLE ENTERPRISE, INC., Trade Masters of Texas, Inc., Emerald Home Furnishings, LLC, Ron's Warehouse Furniture d/b/a Vineyard Furniture International LLC, Plaintiffs,andDream Rooms Furniture (Shanghai) Co., Ltd., Guangdong Yihua Timber Industry, Co., Ltd., Consolidated Plaintiffs,Orient International Holding Shanghai Foreign Trade Co., Ltd., Intervenor Plaintiff,

v.UNITED STATES, United States Department of Commerce, Defendants,andAmerican Furniture Manufacturers Committee for Legal Trade, Vaughan–Bassett Furniture Company, Inc., Intervenor Defendants.

Slip Op. 11–16.Court No. 09–00378.

United States Court of International Trade.

Feb. 11, 2011.

Mowry & Grimson, PLLC (Kristin H. Mowry, Jeffrey S. Grimson, Jill A. Cramer, Sarah M. Wyss, and Susan E. Lehman) for the plaintiffs.¹Wilmer, Cutler, Pickering, Hale & Dorr, LLP (Patrick J. McLain and John D. Greenwald), Washington, D.C., for consolidated plaintiff, Guangdong Yihua Timber Industry Co., Ltd.Garvey Schubert Barer (William E. Perry), Washington, D.C., for consolidated plaintiff, Dream Rooms Furniture (Shanghai) Co., Ltd.Arent Fox LLP (Nancy A. Noonan and Matthew L. Kanna), Washington, D.C., for the intervenor plaintiff, Orient International Holding Shanghai Foreign Trade Co., Ltd.Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Stephen C. Tosini), for the defendants.King & Spalding LLP (J. Michael Taylor, Joseph W. Dorn, Daniel L. Schneiderman, Steven R. Keener, and Prentiss L. Smith), Washington, D.C., for the intervenor defendants.

OPINION AND ORDER

RESTANI, Judge:

This action challenges the Department of Commerce's (“Commerce”) final results rendered in the third antidumping (“AD”) duty review of certain wooden bedroom furniture (“WBF”) from the People's Republic of China (“PRC”). See Wooden Bedroom Furniture from the People's Republic of China: Final Results of Antidumping Duty Administrative Review and New Shipper Reviews, 74 Fed.Reg. 41,374, 41,374 (Dep't Commerce Aug. 17, 2009) (“ Final Results ”); Wooden Bedroom Furniture From the People's Republic of China: Amended Final Results of Antidumping Duty Administrative Review and New Shipper Reviews, 74 Fed.Reg. 55,810, 55,810 (Dep't Commerce Oct. 29, 2009) (“ Amended Final Results ”). The plaintiffs, Lifestyle Enterprise, Inc. (“Lifestyle”), Orient International Holding Shanghai Foreign Trade Co., Ltd. (“Orient”), Guangdong Yihua Timber Industry Co., Ltd. (“Yihua Timber”), Dream Rooms Furniture (Shanghai) Co., Ltd. (“Dream Rooms”), Ron's Warehouse Furniture, Emerald Home Furnishings, LLC, and Trade Masters of Texas, Inc., submitted motions for judgment on the agency record. The intervenor defendants, American Furniture Manufacturers Committee for Legal Trade and Vaughan–Bassett Furniture Company, Inc. (collectively “AFMC”) submitted a motion for summary judgment on the agency record.² For the reasons stated below, the court holds that the plaintiffs' and intervenor defendants' motions are granted in part and denied in part. Commerce's motion for voluntary remand is granted.

BACKGROUND

In January 2005, Commerce published the AD duty order on WBF from the PRC. Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Wooden Bedroom Furniture From the People's Republic of China, 70 Fed.Reg. 329, 329 (Dep't Commerce Jan. 4, 2005). On January 31, 2008, AFMC requested an administrative review of 213 exporters and producers of merchandise entered into the United States between January 1, 2007 and December 31, 2007, thereby triggering the third administrative review of WBF. Def.'s App. to Resp. to Mot. for J. Upon the Admin. R. (“Def.'s App.”) Doc. 18. On February 27, 2008, Commerce published a notice that it would initiate an administrative review and would publish a separate initiation notice for WBF containing additional detail. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 73 Fed.Reg. 10,422, 10,422 (Dep't Commerce Feb. 27, 2008) (“ February Notice ”). On March 7, 2008, Commerce published a notice initiating the WBF administrative review and identifying the 228 exporters and producers under review. Notice of Initiation of Administrative Review of the Antidumping Duty Order on Wooden Bedroom Furniture From the People's Republic of China, 73 Fed.Reg. 12,387, 12,387 (Dep't Commerce Mar. 7, 2008) (“ March Notice ”).

On March 11, 2008, Commerce informed the parties of its intent to limit the number of individually reviewed respondents and identified the March Notice as the initiation notice. Def.'s App. Doc. 48, 347. Commerce accepted withdrawal from review within 90 days of publication, i.e., from March 7 until June 5, 2008. Def.'s App. Doc. 347, at 2; see 19 C.F.R. § 351.213(d)(1). Commerce selected for review the two largest exporters by volume as of June 6, 2008: Yihua Timber and Orient. Def.'s App. Doc. 347, at 7. Commerce informed Orient that its questionnaire response was deficient. Def.'s App. Doc. 366, 368. Orient requested to withdraw the confidential version of its questionnaire response but not its separate rate certification ³ and informed Commerce it would significantly limit its participation in the review. Def.'s App. Doc. 374, at 1–2.

In February 2009, Commerce published its preliminary results. Wooden Bedroom Furniture From the People's Republic of China: Preliminary Results of Antidumping Duty Administrative and New Shipper Reviews and Partial Rescission of Review, 74 Fed.Reg. 6,372, 6,372 (Dep't Commerce Feb. 9, 2009) (“ Preliminary Results ”). Commerce preliminarily determined that, 1) Orient's refusal to fully participate precluded verification of Orient's separate rate status and therefore Orient would be treated as part of the PRC-wide entity, 2) Orient had failed to cooperate to the best of its abilities, and 3) a dumping margin of 216.01% would be assigned to the PRC-wide entity, including Orient. Id. at 6,380. Commerce calculated a dumping margin for Yihua Timber of 124.31%. Id. at 6,384.

Dream Rooms also filed a separate rate certification. App. to Br. of Lifestyle Enterprise, Inc., Trade Masters of Texas, Inc., Emerald Home Furnishings, LCC, and Ron's Warehouse Furnishings (“Pl.'s App.”) Tab 10, at 4, 16. Commerce issued a supplemental questionnaire and confirmed through Federal Express that the package had been delivered to Dream Rooms. Def.'s App. Doc. 446, 475. Dream Rooms did not respond to the supplemental questionnaire and claimed to have never received it. Def.'s App. Doc. 549. Commerce found that Dream Rooms had failed to demonstrate eligibility for a separate rate and assigned it the PRC-wide rate. Preliminary Results, 74 Fed.Reg. at 6,378; Issues and Decision Memorandum for the Antidumping Duty Administrative Review of Wooden Bedroom Furniture from the People's Republic of China, A–570–890, POR 1/1/07 12/31/07, at 83–85 (Aug. 10, 2009) (“ Issues and Decision Memorandum ”), available at http:// ia. ita. doc. gov/ frn/ summary/ prc/ E 9– 19666– 1. pdf (last visited Feb. 10, 2011).

In August 2009, Commerce published its Final Results. Final Results, 74 Fed.Reg. at 41,374. Commerce determined Orient had demonstrated both de jure and de facto independence from government control, recognizing that Commerce had failed to inform Orient that its failure to fully participate in the review would result in denial of separate rate status. Issues and Decision Memorandum at 75–88. Based upon Orient's failure to respond fully to the AD questionnaire, however, Commerce assigned the PRC-wide rate of 216.01% to Orient based on adverse facts available (“AFA”). Id. at 87; see 19 U.S.C. § 1677e. Commerce assigned Yihua Timber a rate of 29.89%. Amended Final Results, 74 Fed.Reg. at 55,810. Commerce adhered to its determination as to Dream Rooms in the Final Results. Final Results, 74 Fed.Reg. at 41,378.

In determining surrogate values,⁴ Commerce preliminarily relied upon financial statements from five Filipino companies: Maitland–Smith Cebu, Inc. (“Maitland–Smith”), Casa Cebuana, Inc. (“Casa Cebuana”), Las Palmas Furniture, Inc. (“Las Palmas”), Global Classic Designs, Inc. (“Global Classic”), and Diretso Design Furnitures, Inc. (“Diretso Design”). Def.'s App. Doc. 480, at 5–8. Commerce preliminarily determined not to rely on those of Arkane International Corp. (“Arkane”) because the company's financial statements indicated involvement in mining. Id. at 6. Commerce also preliminarily determined not to rely on the financial statements of Insular Rattan and Native Products Corp. (“Insular Rattan”). Id. In the Final Results, Commerce relied on financial statements of four additional companies: Giardini Del Sole Manufacturing and Trading Corporation (“Giardini”), SCT Furniture Corp. (“SCT”), Las Palmas, and Arkane. Issues and Decision Memorandum at 33–55. Commerce made additional determinations as to surrogate producers' indirect materials and subcontracting expenses, surrogate producers' changes to work-in-process inventory, reliance on World Trade Atlas (“WTA”) import data for wood inputs and tariff headings for medium density fiberboard to determine value, valuation of brokerage and handling, sources for data on electricity, use of regression-based wage rates, and the rejection of constructed export price offset. See generally, Issues and Decision Memorandum

JURISDICTION & STANDARD OF REVIEW

The court has jurisdiction pursuant to 28 U.S.C. § 1581(c). The court will uphold Commerce's final determinations in AD duty reviews 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).

DISCUSSION

I. Initiation and Selection of Respondents

Orient and Lifestyle allege that Commerce violated its own regulation when it failed to issue sufficient notice of initiation of...