991 F.Supp.2d 1322 (CIT 2014), 10-00059, Foshan Shunde Yongjian Housewares & Hardware Co., Ltd. v. United States

Docket Nº:Court 10-00059
Citation:991 F.Supp.2d 1322
Opinion Judge:EATON, Judge:
Party Name:FOSHAN SHUNDE YONGJIAN HOUSEWARES & HARDWARE CO., LTD., and POLDER, INC., Plaintiffs, v. UNITED STATES, Defendant, and HOME PRODUCTS INTERNATIONAL, LTD., Defendant-Intervenor
Attorney:Court No. 10-00059 William E. Perry, Dorsey & Whitney LLP, of Seattle, WA, argued for plaintiffs. With him on the brief were Emily Lawson and Derek A. Bishop. Michael D. Snyder, Trial Attorney, Civil Division, U.S. Department of Justice, of Washington, D.C., argued for the defendant. With him on ...
Judge Panel:Before: Richard K. Eaton, Judge.
Case Date:June 20, 2014
Court:Court of International Trade

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991 F.Supp.2d 1322 (CIT 2014)

FOSHAN SHUNDE YONGJIAN HOUSEWARES & HARDWARE CO., LTD., and POLDER, INC., Plaintiffs,

v.

UNITED STATES, Defendant,

and

HOME PRODUCTS INTERNATIONAL, LTD., Defendant-Intervenor

Court No. 10-00059

United States Court of International Trade

June 20, 2014

Page 1323

The Department of Commerce's determination is remanded.

William E. Perry, Dorsey & Whitney LLP, of Seattle, WA, argued for plaintiffs. With him on the brief were Emily Lawson and Derek A. Bishop.

Michael D. Snyder, Trial Attorney, Civil Division, U.S. Department of Justice, of Washington, D.C., argued for the defendant. With him on the brief were Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director. Of counsel on the brief was Rachael Wenthold Nimmo, Senior Attorney, Office of the Chief Counsel for Import Administration, United States Department of Commerce, of Washington D.C.

Frederick L. Ikenson, Blank Rome LLP, of Washington D.C., argued for defendant-intervenor. With him on the brief was Larry Hampel.

Before: Richard K. Eaton, Judge.

OPINION

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OPINION and ORDER

EATON, Judge:

Before the court is the Department of Commerce's (the " Department" or " Commerce" ) Second Final Results of Redetermination Pursuant to Court Remand of the administrative review of the antidumping duty order on floor-standing metal top ironing tables and certain parts thereof from the People's Republic of China (" PRC" ). Final Results of Redetermination Pursuant to Ct. Remand (ECF Dkt. No. 110) (" Second Remand Results" ). On remand, Commerce was instructed to sufficiently corroborate the secondary information it relied on to assign Foshan Shunde Yongjian Housewares and Hardware Co., Ltd. (" Foshan Shunde" or, collectively with jointly represented plaintiff/importer Polder, Inc., " plaintiffs" ) a rate based on adverse inferences.1 To comply with the remand instructions, the Department was given the option to (a) supplement the record with additional information, or (b) further explain " why the Customs Data" it relied upon in the First Remand Results was substantial evidence corroborating the secondary information it relied upon when assigning the antidumping rate to plaintiff. Foshan Shunde Yongjian Housewares & Hardware Co. v. United States, 37 CIT __, __, Slip Op. 13-47, at 14 (2013) (" Foshan Shunde II " ); Final Results of Redetermination Pursuant to Ct. Remand at 1, 3-5 (ECF Dkt. No. 71) (" First Remand Results" ).

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." Xinjiamei Furniture (Zhangzhou) Co. v. United States, 38 CIT __, __, 968 F.Supp.2d 1255, 1259 (2014) (citation omitted) (internal quotation marks omitted).

DISCUSSION

I. Background

This matter is before the court on plaintiffs' challenge to the Department's final

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results of the fourth administrative review of the antidumping duty order on floor-standing metal-top ironing tables and certain parts thereof from the PRC for the period of review (" POR" ) August 1, 2007 through July 31, 2008. See Floor-Standing, Metal-Top Ironing Tables and Certain Parts Thereof from the PRC, 75 Fed. Reg. 3,201 (Dep't of Commerce Jan. 20, 2010), and the accompanying Issues & Decision Memorandum (collectively, the " Final Results" ). Because of inadequacies in Foshan Shunde's questionnaire responses relating to production and sales information, in the Final Results Commerce disregarded those submissions and, after applying facts otherwise available, drew adverse inferences 2 as to the facts relating to Foshan Shunde's factors of production and sales data. Based on the same inadequacies, the Department also disregarded Foshan Shunde's submissions regarding its independence from the PRC government, determining that Foshan Shunde could not demonstrate an entitlement to separate-rate status and assigning plaintiff the PRC-wide rate of 157.68 percent. Foshan Shunde Yongjian Housewares & Hardware Co. v. United States, 35 CIT __, __, Slip Op. 11-123, at 4-5 (2011) (" Foshan Shunde I " ). In Foshan Shunde I, the court sustained Commerce's determination to draw adverse inferences as to the facts relating to Foshan Shunde's factors of production and sales data, but remanded the case for the Department to reexamine the facts surrounding its separate rate determination and the antidumping duty rate applied to Foshan Shunde's merchandise. Id. at __, Slip Op. 11-123, at 40-42.

In the First Remand Results, the Department determined that Foshan Shunde " demonstrated entitlement to a separate rate," but that the record was devoid of any useful information to calculate a rate because Foshan Shunde provided inadequate factors of production and sales data. First Remand Results at 1. Relying on the finding in the Final Results, later sustained by the court, that Foshan Shunde had failed to cooperate to the best of its ability with the Department's requests for information, the Department, based on adverse inferences, assigned a 157.68 percent rate to Foshan Shunde. This rate was the calculated rate for a cooperating respondent during the investigation.3 First Remand Results at 1, 3-5, 7.

The Department argued the rate assigned to Foshan Shunde was supported by substantial evidence and in accordance with law because (1) the rate was based upon secondary information that was corroborated as required by 19 U.S.C. § 1677e(c), (2) the assigned rate was " an individually calculated rate for a cooperative respondent in the investigation," (3) the rate " ha[d] been used repeatedly as the rate assigned to the China-wide entity representing the rate for the industry," and (4) data derived from imports of the

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subject merchandise into the United States during the POR (" Customs Data" ) showed that some market participants were importing subject merchandise while being subject to the 157.68 percent rate. First Remand Results at 8, 9.

In Foshan Shunde II, the court sustained the Department's determinations that Foshan Shunde was entitled to a separate rate and to use adverse inferences to determine Foshan Shunde's rate. The court, however, further held that the Department had not sufficiently corroborated the secondary information it used to assign the rate. In particular, it held that the mere repeated assignment, in other reviews, of a rate that was calculated during the investigation, could not be used as corroboration for assigning the 157.68 percent rate to Foshan Shunde. Foshan Shunde II, 37 CIT at __, Slip Op. 13-47, at 9 (citing 19 U.S.C. § 1677e(c); 19 C.F.R. § 351.308(d) (2008)).

As to the claimed corroboration of the 157.68 percent rate by relying on evidence that some importers had been subject to the rate during the POR, the court held that customs information was an appropriate independent source to corroborate secondary information as a general matter. See 19 U.S.C. § 1677e(c) (" When [the Department] relies on secondary information, . . . [it] shall, to the extent practicable, corroborate that information from independent sources that are reasonably at [its] disposal." ). The court further found, however, that the specific Customs Data relied upon by the Department was lacking. Specifically, the relevance of the relied upon data to plaintiff's commercial reality was not supported by substantial evidence because, among other things, nothing on the record expressly identified the entries listed in the Customs Data as being entries of subject merchandise. Foshan Shunde II, 37 CIT at __, Slip Op. 13-47, at 13.

The Second Remand Results

In the Second Remand Results, the Department again drew an adverse inference as to the facts relating to Foshan Shunde's rate and, using the investigation rate as secondary information, again assigned Foshan Shunde a 157.68 percent rate. Second Remand Results at 1. To corroborate the 157.68 percent rate, the Department again relied solely on the Customs Data as its independent source. Second Remand Results at 1. In so doing, the Department limited itself to the evidence present on the record prior to remand and concluded that the rate selected " is to the extent practicable corroborated by information from independent sources pursuant to 19 U.S.C. § 1677e(c)." Second Remand Results at 1.

The Department observed that " the information from independent sources is limited to the Customs data," that " [n]o average unit value or price list data is on the record of this proceeding," and that it " has identified no other independent sources beyond these Customs data that could assist the Department in determining the probative value of the 157.68 percent AFA rate assigned to Foshan Shunde." Second Remand Results at 5.

In its effort to comply with the court's instruction to provide additional explanation as to the relevance of the Customs Data to Foshan Shunde, Commerce makes several points. First, the Department argues that the rate is relevant to Foshan Shunde because it had " already been calculated in a prior segment of the proceeding at the time Foshan Shunde took the risk of providing unusable data to the Department in this review." Second Remand Results at 6. That is, for Commerce, because " Foshan Shunde's actions demonstrate that it preferred to avoid providing

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to the Department the necessary information for calculating its true margin . . . Foshan Shunde knowingly chose to [accept the] risk" of...

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