968 F.Supp.2d 1255 (CIT 2014), 11-00456, Xinjiamei Furniture (Zhangzhou) Co. v. United States

Docket Nº:11-00456
Citation:968 F.Supp.2d 1255
Opinion Judge:Eaton, Judge:
Party Name:XINJIAMEI FURNITURE (ZHANGZHOU) CO., LTD., Plaintiff, v. UNITED STATES, Defendant
Attorney:No. 11-00456 Kutak Rock LLP (Lizbeth R. Levinson and Ronald M. Wisla), for plaintiff. Stuart F. Delery, Acting Assistant Attorney General; Jeanne E. Davidson, Director, Franklin E. White, Assistant Director, Douglas G. Edelschick, Trial Attorney, Civil Division, Commercial Litigation Branch, Unit...
Judge Panel:Before: Richard K. Eaton, Judge.
Case Date:February 18, 2014
Court:Court of International Trade
 
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968 F.Supp.2d 1255 (CIT 2014)

XINJIAMEI FURNITURE (ZHANGZHOU) CO., LTD., Plaintiff,

v.

UNITED STATES, Defendant

No. 11-00456

United States Court of International Trade

February 18, 2014

Page 1256

[Copyrighted Material Omitted]

Page 1257

The Department of Commerce's Final Results of Redetermination in this New Shipper Review are Sustained.

Kutak Rock LLP (Lizbeth R. Levinson and Ronald M. Wisla), for plaintiff.

Stuart F. Delery, Acting Assistant Attorney General; Jeanne E. Davidson, Director, Franklin E. White, Assistant Director, Douglas G. Edelschick, Trial Attorney, Civil Division, Commercial Litigation Branch, United States Department of Justice; Office of the Chief Counsel for Import Administration, United States Department of Commerce (Joanna V. Theiss), of counsel, for defendant.

Before: Richard K. Eaton, Judge.

OPINION

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Eaton, Judge:

Before the court are the Department of Commerce's (" the Department" or " defendant" ) Final Results of Redetermination Pursuant to Court Remand in this New Shipper Review. Final Results of Redetermination Pursuant to Court Remand (ECF Dkt. No. 32-1) (" Remand Results" ). At issue is whether the Department complied with the court's remand order instructing it to " provide an adequate explanation, supported by substantial evidence, as to why [the data set relied upon in the Final Results to calculate the surrogate value for cold-rolled steel coil is] reliable and non-aberrational." Xinjiamei Furniture (Zhangzhou) Co. v. United States, 37 CIT __, __, Slip Op. 13-30, 16 (2013).

Plaintiff Xinjiamei Furniture (Zhangzhou) Co., Ltd. (" plaintiff" or " Xinjiamei" ) objects to Commerce's continued use of import data from Indian HTS category 7211.2990 (" Indian Import Data" ), as reported in the Global Trade Atlas (" GTA" ), including questioning the Department's use of new data placed on the record during the remand to show that the GTA Indian Import Data does not yield an aberrational average unit value (" AUV" ). See Cmts. on Remand Results 2-3 (ECF Dkt. No. 34) (" Pl.'s Cmts. " ).

Defendant argues that the court should not entertain plaintiff's objections because " Xinjiamei failed to exhaust its administrative remedies" when it did not comment on the Draft Results of Redetermination Pursuant to Court Remand (" Draft Results" ). Def.'s Reply to Pl.'s Cmts. Regarding the Remand Redetermination 2 (ECF Dkt. No. 35) (" Def.'s Reply" ). Defendant continues that the Remand Results comply with the court's instructions in Xinjiamei and its determination is supported by substantial evidence and in accordance with law.

It is undisputed that plaintiff failed to raise any of the arguments it raises here when given an opportunity to comment on the Draft Results during the proceedings on remand. Draft Results at 15 (ECF Dkt. No. 38-11) (" Interested parties will have an opportunity to comment on these draft remand results. Interested parties may submit comments to the Department

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by close-of-business on May 31, 2013. Any comments will be addressed in our final remand results." ). Because plaintiff did not exhaust its administrative remedies, the court will not consider the arguments it makes here for the first time. Accordingly, and because the Department has complied with the court's instructions in Xinjiamei and its conclusions are supported by substantial evidence on the record, the Remand Results are sustained.

STANDARD OF REVIEW

" The court shall hold unlawful any determination, finding, or conclusion found . . . to be unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B)(i) (2006). The results of a redetermination pursuant to court remand are also reviewed " for compliance with the court's remand order." Nakornthai Mill Public Co. v. United States, 32 CIT 1272, 1274, 587 F.Supp.2d 1303, 1306 (2008).

DISCUSSION

I. Background

On July 29, 2010, at Xinjiamei's request, Commerce initiated a new shipper review, covering a period of review (" POR" ) from June 1, 2009 through May 31, 2010. Folding Metal Tables and Chairs From the People's Republic of China (" PRC" ), 75 Fed. Reg. 44,767 (Dep't of Commerce July 29, 2010) (initiation of the new shipper review); Folding Metal Tables and Chairs from the PRC, 67 Fed. Reg. 43,277 (Dep't of Commerce June 27, 2002) (antidumping duty order). During the initial administrative proceedings, the Department selected India as the surrogate country, placed the GTA Indian Import Data on the record, and used it to generate a surrogate value for cold-rolled steel coil. Xinjiamei at __, Slip Op. 13-30, at 4. As an alternative value, plaintiff placed on the record before Commerce advertising data from one of the largest Indian steel producers, JSW Steel Limited (" JSW" ). To support its alternative value, plaintiff also submitted sales data from JSW and data taken from the metals.com website showing monthly cold-rolled steel prices from Brazil (" metalprices.com Brazilian Data" ), " ex factory cold-rolled steel prices from Northern Europe," and " world export market benchmark prices." Id. at __, Slip Op. 13-30, at 5-6 (internal quotation marks omitted). Plaintiff argued that the Department should have used the JSW advertising data as the best available information 1 on the record because (1) the JSW advertising data was supported by the other information plaintiff provided, and (2) because of the small quantity of imports it represented, the GTA Indian Import Data yielded an aberrational surrogate value. Id. at __, Slip Op. 13-30, at 4-6.

In the Final Results, Commerce continued to use the GTA Indian Import Data, arguing that it was within its discretion to select data based on a small quantity of imports as the best available information, so long as other evidence before the Department showed the resulting per unit values derived from GTA Indian Import Data were within a " reasonable range." Id. at __, Slip Op. 13-30, at 6; See Folding Metal Tables and Chairs from the PRC, 76 Fed. Reg. 66,036 (Dep't of Commerce Oct. 25, 2011) (final results of antidumping review and new shipper review) (" Final Results" ), and accompanying Issues and Decision Memorandum for the

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Annual 2009-2010 New Shipper Review of the Antidumping Duty Order on Folding Metal Tables and Chairs from the PRC (Dep't of Commerce Oct. 18, 2011) (" Issues & Dec. Mem." ). The Department also found that the data placed on the record by plaintiff failed to show the GTA Indian Import Data to be aberrational. Xinjiamei at __, Slip Op. 13-30, at 7. Moreover, Commerce rejected the use of the JSW advertised prices as the best available information because the data represented offers, rather than sales, and came from only one company. Id. The Department, however, neither expressly evaluated whether the GTA Indian Import Data yielded an aberrational AUV nor compared the AUV yielded by the GTA Indian Import Data to other market prices. Id. Rather than comparing the GTA Indian Import Data with the other evidence placed on the record by plaintiff, the Department discounted the other data sets and concluded that the GTA Indian Import Data was superior by process of elimination.

In Xinjiamei, the court remanded the Final Results, " conclud[ing] that Commerce ha[d] failed to provide a rational explanation for its selection of the GTA [Indian Import D]ata as the best available information on the record." Id. at __, Slip Op. 13-30, at 10. Because the Department did not assess whether the GTA Indian Import Data met the Department's own standards for reliability, the court found that Commerce had " skip[ped] a critical analytical step by failing to question the use of the GTA [Indian Import D]ata when other evidence on the record cast[] doubt on the reliability of its choice." Id. (internal quotation marks omitted). The court held that " questionable data may not be chosen 'only on the claim that the data selected was better than other data' on the record" and that " 'Commerce's analysis must do more than simply identify flaws in the data sets it rejects.'" Id. (quoting Mittal Steel Galati S.A. v. United States, 31 CIT 1121, 1135, 502 F.Supp.2d 1295, 1308 (2007), and Guangdong Chems. Imp. & Exp. Corp. v. United States, 30 Ct. Int'l Trade 1412, 1417, 460 F.Supp.2d 1365, 1369 (2006)). Accordingly, the court remanded the case for the Department to more thoroughly explain why, in light of all of the record evidence, its selection of the GTA Indian Import Data as the best available information was supported by substantial evidence.

On remand, the court instructed that:

[S]hould Commerce continue using the GTA [Indian D]ata, it must provide an adequate explanation, supported by substantial evidence, as to why that data is reliable and non-aberrational. . . . Commerce must take into account the Brazilian data, the Northern European data, the Benchmark data, the JSW advertised data, and the JSW price data. . . . [Commerce] shall determine a surrogate value for cold-rolled steel coil based on the best available information standard. . . [and] expressly compare the merits of any acceptable data sets on the record.

Xinjiamei, at __, Slip Op. 13-30, at 16. The court permitted the Department to " reopen the record...

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