Shandong Rongxin Import & Export Co. v. United States

• Decision Date: 03 February 2017
• Docket Number: Court No. 15–00151,Slip Op. 17–11
• Citation: 203 F.Supp.3d 1327
• Parties: SHANDONG RONGXIN IMPORT & EXPORT CO., LTD., Plaintiff, v. UNITED STATES, Defendant, and Dixon Ticonderoga Company, Defendant–Intervenor.
• Court: U.S. Court of International Trade

203 F.Supp.3d 1327

SHANDONG RONGXIN IMPORT & EXPORT CO., LTD., Plaintiff,

v. UNITED STATES, Defendant,andDixon Ticonderoga Company, Defendant–Intervenor.

Slip Op. 17–11

Court No. 15–00151

United States Court of International Trade.

February 3, 2017

John J. Kenkel , deKieffer & Horgan, PLLC, of Washington, DC, argued for plaintiff. With him on the brief were J. Kevin Horgan and Judith Holdsworth .

Robert M. Norway , Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argued for defendant. With him on the brief were Benjamin C. Mizer , Principal Deputy Assistant Attorney General, Jeanne E. Davidson , Director, Patricia M. McCarthy , Assistant Director, and Erica A. Hixon , Trial Counsel. Of counsel on the brief was Amanda T. Lee , Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC. Of counsel on the Supplemental Authority was Emily R. Beline , Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.

Felicia Leborgne Nowels , Akerman LLP, of Tallahassee, FL, argued for defendant-intervenor. With her on the brief was Sheryl D. Rosen .

OPINION AND ORDER

Katzmann, Judge:

This is a case about pencils. It is also a case about judicial review of administrative action, the use of social media in agency proceedings, and trade relief in the form of duties that are imposed by law on imports that are sold in the United States at less than fair value ("dumped") and materially harm American industry or threaten it with material harm. Plaintiff, Shandong Rongxin Import & Export Co., Ltd. ("Rongxin"), an exporter of pencils from the People's Republic of China ("PRC") brought this action against Defendant, the United States, on May 22, 2015, disputing certain aspects of the final administrative review results issued by the U.S. Department of Commerce in Certain Cased Pencils from the People's Republic of China , 80 Fed. Reg. 26,897 (Dep't Commerce May 11, 2015) (final results of antidumping duty administrative review, 2012–2013) ("Final Results "); Issues and Decision Memorandum for Certain Cased Pencils from the People's Republic of China, A–570–827 at 2 (Apr. 30, 2015) ("IDM "); Pl.'s Conf. Mot. for J. upon Agency R., Aug. 28, 2015, ECF No. 24 ("Pl.'s Br. "). Defendant and Defendant–Intervenor, Dixon Ticonderoga Company ("Dixon"), oppose Rongxin's Motion. Def.'s Conf. Opp'n., Dec. 18, 2015, ECF No. 30. ("Def.'s Br. "); Def.–Inter.'s Opp'n, Dec. 18, 2015, ECF No. 34 ("Def. Interv.'s Br. "). Rongxin argues that Commerce was not authorized to reopen the record on remand, and that it erred in finding that Dixon is a producer of domestic like product possessing interested party status with standing to request an administrative review. Rongxin also argues that it has shown it is not subject to PRC control and is entitled to an antidumping duty rate separate from the PRC–wide rate assessed by Commerce on companies in nonmarket economy ("NME") countries.¹ Dixon is an American corporation alleging, under Section 771(9)(C) of the Tariff Act of 1930, as amended ("Act"), 19 U.S.C. § 1677(9)(C) (2012),² interested party status as a producer of domestic like product to request administrative review of Rongxin, a foreign exporter. For the reasons set forth below, the court denies in part Rongxin's motion for judgment on the agency record and sustains Commerce's Results of Redetermination Pursuant to Court Remand finding that Dixon is a domestic producer and interested party, and thus has standing to request an administrative review; the court remands for further proceedings consistent with this opinion regarding whether Rongxin is entitled to a separate rate.

BACKGROUND

Commerce is required to impose antidumping duties on foreign goods that are being or are likely to be sold in the United States at less than fair value. 19 U.S.C. § 1673(1) ; Micron Tech. Inc. v. United States, 243 F.3d 1301, 1303 (Fed. Cir. 2001). Administrative reviews of antidumping duties are conducted in accordance with 19 U.S.C. § 1675. On December 21, 1994, the U.S. International Trade Commission ("ITC") published its determination that an industry in the United States is materially injured or threatened with material injury by reason of imports from the PRC of certain cased pencils that Commerce had determined to be sold in the United States at less than fair value. Certain Cased Pencils from the People's Republic of China , USITC Pub. 2837, Inv. No. 731–TA–669, 59 Fed. Reg. 65,788 (Dec. 21, 1994) (final determination). On December 28, 1994, Commerce published the antidumping duty order covering certain cased pencils from China. Certain Cased Pencils from the People's Republic of China , 59 Fed. Reg. 66,909 (Dep't Commerce Dec. 28, 1994) (final results of antidumping duty order) ("Cased Pencils/China ").

On December 3, 2013, during the anniversary month of the Cased Pencils/China antidumping duty order, Commerce notified interested parties of their opportunity to request an administrative review of the order in accordance with 19 C.F.R. § 351.213 (2013). Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation , 78 Fed. Reg. 72,636 (Dep't Commerce Dec. 3, 2013) (notice of opportunity to request administrative review).

On December 20, 2013, Dixon filed a request for administrative review of Rongxin. Req. for Administrative Review, PR 1 (Dec. 20, 2013). Dixon's request stated that "[a]s a United States importer and manufacturer of subject merchandise, Petitioner is an interested party under 19 U.S.C. § 1677(9) who may make this request for administrative review pursuant to 19 C.F.R. § 351.213(b)."³ Id. at 1. The request was accompanied by a company certification, signed by Dixon's Chief Executive Officer ("CEO"), Timothy Gomez, which stated that the information contained in the submission is accurate. Id. at 3.

In accordance with its Articles of Association, Rongxin is a corporation owned by eleven shareholders and directed by a six-member board. Revised Rongxin Articles of Association, PR 40 (Oct. 16, 2014) ("Articles "); Rongxin's Section A Response Ex. A–2 Shareholders. Slightly more than a majority of Rongxin⁴ is owned by Shandong International Trade Group ("SITG"), which in turn is wholly-owned by the State–Owned Assets Supervision and Administration Commission ("SASAC").⁵ Rongxin's Section A Questionnaire Response at 2, PR 22–26, CR 23–24 (Apr. 3, 2015). The remainder⁶ of Rongxin is owned by ten Rongxin employees. Id.

On February 3, 2014, Commerce initiated an administrative review of Rongxin. The Period of Review ("POR") covered by the administrative review is December 1, 2012, through November 30, 2013. IDM at 1.

During the administrative review, Rongxin argued that, first, Rongxin deserves a separate rate because it can demonstrate the absence of government control both in law (de jure) and in fact (de facto), and second, Commerce should rescind the initiation of the administrative review because there is no evidence on the record that Dixon is a U.S. manufacturer entitled to request a review. Rongxin's Case Brief, PR 48; CR 27 (Feb. 2, 2015).

The Department issued a Section A Questionnaire to Rongxin on February 28, 2014. Rongxin's Section A Questionnaire Response, PR 22–26; CR 4–15 (Apr. 3, 2015). Rongxin submitted its Section A response on April 3, 2014. Id. Commerce issued a First Supplemental Section A Questionnaire to Rongxin on September 18, 2014. DOC Supplemental Section A Questionnaire, PR 37; CR 22 (Sep. 18, 2014). Rongxin submitted its response to the First Supplemental Section A Questionnaire on October 16, 2014. Rongxin First Suppl. Questionnaire Resp. CR 23–24 at 4 (Oct. 16, 2014) ("Questionnaire Resp. "). Commerce published its Preliminary Results on December 31, 2014, having determined that Rongxin is not eligible for a separate rate. Certain Cased Pencils from the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review and Partial Rescission; 2012–2013 , 79 Fed. Reg. 78,795 (Dep't. Commerce Dec. 31, 2014) (preliminary determination). Rongxin filed its Case Brief on February 2, 2015. Rongxin's Case Brief, PR 48; CR 27 (Feb. 2, 2015). Dixon filed its Rebuttal Brief on February 4, 2015. Dixon's Rebuttal Brief, PR 49; CR 28 (Feb. 4, 2015).

Commerce published the Final Results of its administrative review on May 11, 2015. In the Final Results , Commerce found that there was no evidence "on the record that undermines or calls into question Dixon's certification [that it is an interested party]." IDM at 9. As to the question of whether Rongxin deserves a separate rate, Commerce found that evidence provided by Rongxin demonstrated an absence of de jure government control. Id. at 7. Commerce continued to find that Rongxin had not demonstrated an absence of de facto government control. Id. at 8.

This matter came before Judge Tsoucalas on Rongxin's Rule 56.2 Motion for Judgment on the Agency Record. Pl.'s Br. In Shandong Rongxin Import & Export Co., Ltd., v. United States , 40 CIT ––––, ––––, 163 F.Supp.3d 1249, 1254–55 (2016) ("Remand Order "), the court remanded this case for further explanation or reconsideration as may be appropriate with regard to the issue of whether Dixon is an interested party with standing to request an administrative review of Rongxin. The court declined to reach the issue of whether Rongxin deserves a separate rate until the threshold issue of standing was resolved. Id. at 1254.

To resolve the issue on remand, Commerce issued two supplemental questionnaires to Dixon, the first on April 8, 2016. Commerce's Supplemental Questionnaire, PR 1 (Apr. 8, 2016). Dixon submitted its response on April 18, 2016. Dixon's Response to Supplemental Questionnaire, PR 7 (Apr. 18, 2016). Rongxin filed rebuttal comments. Rongxin's Rebuttal Comments on Dixon's Response to Supplemental Questionnaire, PR 10–13 (Apr. 22, 2016). Commerce...