Fine Furniture (Shanghai) Ltd. v. United States, Slip Op. 16-85

• Decision Date: 09 September 2016
• Docket Number: Slip Op. 16-85,Consol. Court No. 14-00135
• Citation: 182 F.Supp.3d 1350
• Parties: Fine Furniture (Shanghai) Limited, et al., Plaintiffs, and Metropolitan Hardwood Floors, Inc., et al., Plaintiff-Intervenors, v. United States, Defendant, and Coalition for American Hardwood Parity, Defendant-Intervenor.
• Court: U.S. Court of International Trade

182 F.Supp.3d 1350

Fine Furniture (Shanghai) Limited, et al., Plaintiffs,andMetropolitan Hardwood Floors, Inc., et al., Plaintiff-Intervenors,

v. United States, Defendant,andCoalition for American Hardwood Parity, Defendant-Intervenor.

Slip Op. 16-85

Consol. Court No. 14-00135

United States Court of International Trade.

September 9, 2016

Kristin H. Mowry, Mowry & Grimson, PLLC, of Washington, D.C., for plaintiff Fine Furniture (Shanghai) Limited. With her on the brief were Jeffrey S. Grimson, Jill A. Cramer, Sarah M. Wyss, and Daniel R. Wilson.

Gregory S. Menegaz, deKieffer & Horgan, PLLC, of Washington, D.C., for consolidated plaintiffs Dalian Huilong Wooden Products Co. Ltd., et al. With him on the brief were J. Kevin Horgan and John J. Kenkel.

Thomas J. Trendl, Steptoe & Johnson LLP, of Washington, D.C., for consolidated plaintiff Shanghai Lizhong Wood Products Co., Ltd./The Lizhong Wood Industry Limited Company of Shanghai.

Jeffrey S. Neeley, Husch Blackwell LLP, of Washington, D.C., for consolidated plaintiffs Dalian Kemian Wood Industry Co., et al.

Lizbeth R. Levinson, Kutak Rock LLP, of Washington, D.C., for consolidated plaintiff Hangzhou Zhengtian Industrial Co., Ltd. and plaintiff-intervenors Metropolitan Hardwood Floors, Inc., et al.

Mark Rett Ludwikowski, Sandler, Travis & Rosenberg, PA, of Washington, D.C., for plaintiff-intervenor Lumber Liquidators Services, LLC.

Alexander V. Sverdlov, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., for defendant. With him on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and Claudia Burke, Assistant Director. Of counsel on the brief was Shana Hofstetter, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce, of Washington, D.C.

Jeffrey Steven Levin, Levin Trade Law, P.C., of Bethesda, MD, for defendant-intervenor Coalition for American Hardwood Parity.

OPINION AND ORDER

Stanceu, Chief Judge:

In this consolidated action,¹ plaintiff Fine Furniture (Shanghai) Limited ("Fine Furniture") and several other Chinese producers or exporters of multilayered wood flooring contest an administrative decision that the International Trade Administration, U.S. Department of Commerce ("Commerce" or the "Department") issued to conclude the first administrative review of an antidumping duty order on multilayered wood flooring ("subject merchandise") from the People's Republic of China ("China" or the "PRC").

I. BACKGROUND

A. The Contested Decision

The published decision contested in this action (the "Amended Final Results") is Multilayered Wood Flooring from the People's Republic of China: Amended Final Results of the Antidumping Duty Administrative Review; 2011-2012 , 79 Fed. Reg. 35,314 (Int'l Trade Admin. June 20, 2014) ("Amended Final Results ").

B. Proceedings before the Department of Commerce

Commerce issued an antidumping duty order on multilayered wood flooring from China (the "Order") on December 8, 2011. Multilayered Wood Flooring from the People's Republic of China: Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order , 76 Fed. Reg. 76,690 (Int'l Trade Admin. Dec. 8, 2011).² On January 30, 2013, Commerce initiated the first periodic administrative review of the Order, for the period of May 26, 2011 through November 30, 2012 ("period of review" or "POR"). Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part , 78 Fed. Reg. 6,291 (Int'l Trade Admin. Jan. 30, 2013).

Fine Furniture, a producer and exporter of multilayered wood flooring from China, was one of three mandatory respondents in the first administrative review. See Compl. ¶ 5 (July 7, 2014), ECF No. 9; Decision Mem. for Prelim. Results of Antidumping Duty Administrative Review: Multilayered Wood Flooring from the People's Republic of China , A-570-970, ARP 11-12, at 5 (Nov. 18, 2013), available at http://enforcement.trade.gov/frn/summary/prc/2013-28100-1.pdf (last visited Sept. 6, 2016) ("Prelim. Decision Mem. "). The other two mandatory respondents were Armstrong Wood Products (Kunshan) Co., Ltd. ("Armstrong") and Nanjing Minglin Wooden Industry Co. Ltd. ("Minglin"). Prelim. Decision Mem. 5. Zhejiang Layo Wood Industry Co., Ltd. ("Layo Wood") filed a request to participate as a voluntary respondent, which Commerce granted. Id.

On November 25, 2013, Commerce published the preliminary results of the review ("Preliminary Results"). Multilayered Wood Flooring from the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review; 2011-2012 , 78 Fed. Reg. 70,267 (Nov. 25, 2013) ("Prelim. Results "). Commerce preliminarily determined that imports of subject merchandise from China are being, or are likely to be, sold in the United States at less than fair value and calculated the following preliminary dumping margins: 0.67% for Fine Furniture; 8.85% for Layo Wood; and 8.87% for Armstrong. Id. , 78 Fed. Reg. at 70,268. Commerce determined that the third mandatory respondent, Minglin, did not sell any subject merchandise in the United States during the period of review at less than fair value and assigned it a de minimis margin. Id. Commerce assigned a simple average of the three rates that were not de minimis , 4.77%, to the "separate rate" respondents, i.e., respondents that demonstrated independence from the government of China but were not assigned individually-determined margins. Id. , 78 Fed. Reg. at 70,268 -69. Exporters and producers that did not qualify for separate rate status were assigned the PRC-wide rate, 58.84%. Id. , 78 Fed. Reg. at 70,269.

On May 9, 2014, Commerce published the final results of the review ("Final Results") and accompanying decision memorandum ("Final Decision Memorandum"). Multilayered Wood Flooring from the People's Republic of China: Final Results of Antidumping Duty Administrative Review; 2011-2012 , 79 Fed. Reg. 26,712 (May 9, 2014) (" Final Results ") and accompanying Issues and Decision Mem. for the Final Results of the 2011-2012 Antidumping Duty Admin. Rev. of Multilayered Wood Flooring from the People's Republic of China , A-570-970, ARP 11-12 (May 9, 2014), available at http://enforcement.trade.gov/frn/summary/prc/2014-10698-1.pdf (last visited Sept. 6, 2016) ("Final Decision Mem. "). Commerce again determined that imports of subject merchandise from China are being, or are likely to be, sold in the United States at less than fair value. Commerce assigned Fine Furniture a dumping margin of 5.74% and assigned de minimis margins to both Minglin and Armstrong. Final Results , 79 Fed. Reg. at 26,714. In response to the judgment entered in Baroque Timber Industries (Zhongshan) Co., Ltd. v. United States , 38 CIT ––––, 971 F.Supp.2d 1333 (2014), Commerce amended the less-than-fair-value determination to assign Layo Wood a de minimis margin and on that basis excluded from the Order merchandise produced and exported by Layo Wood. Id. , 79 Fed. Reg. at 26,713. Because Fine Furniture was the only respondent assigned a margin in the Final Results that was not de minimis , Commerce assigned a margin of 5.74% to the separate rate respondents as the all-others rate. Id. , 79 Fed. Reg. at 26,714 -15. The PRC-wide rate remained unchanged from the Preliminary Results at 58.84%. Id. , 79 Fed. Reg. at 26,715.

Following several allegations of ministerial errors, Commerce published the Amended Final Results on June 20, 2014.³ See Amended Final Results , 79 Fed. Reg. at 35,314. In the Amended Final Results, Commerce calculated a revised dumping margin of 5.92% for Fine Furniture. Id. , 79 Fed. Reg. at 35,316. Fine Furniture remained the only respondent with a margin that was other than de minimis . See id. Commerce assigned the separate rate respondents this revised margin, 5.92%. Id. The PRC-wide rate remained 58.84%. Id.

C. Proceedings before the Court of International Trade

Fine Furniture filed its summons on June 6, 2014 and its complaint on July 7, 2014. Summons, ECF No. 1; Compl., ECF No. 9. The other plaintiffs in this case are Chinese producers and/or exporters of multilayered wood flooring that participated in the underlying administrative review and received separate rate status. Metropolitan Hardwood Floors, Inc., et al., is both a consolidated plaintiff and a plaintiff-intervenor. Lumber Liquidators, LLC, an importer of subject merchandise that participated in the underlying administrative review, is also a plaintiff-intervenor. The Coalition for American Hardwood Parity, an association of U.S. producers of multilayered wood flooring and a petitioner in the underlying investigation, is the defendant-intervenor.

Fine Furniture moved for judgment on the agency record on November 25, 2014, and defendant responded on April 27, 2015.⁴ Mot. for J. on the Agency R. Pursuant to R. 56.2 of Pl. Fine Furniture (Shanghai) Ltd., ECF No. 58 ("Fine Furniture's Br."); Def.'s Resp. to Pl.'s R. 56.2 Mot. for J. upon the Agency R., ECF No. 73 ("Def.'s Opp'n"). Fine Furniture replied on July 27, 2015. Reply Br. in Support of R. 56.2 Mot. for J. upon the Agency R. by Pl. Fine Furniture (Shanghai) Ltd., ECF No. 80 ("Fine Furniture's Reply"). The court held oral argument on January 7, 2016.

II. DISCUSSION

A. Jurisdiction and Standard of Review

The court exercises jurisdiction according to section 201 of the Customs Courts Act of 1980, 28 U.S.C. § 1581(c), under which the court reviews actions commenced under section 516A of the Tariff Act of 1930 as amended , 19 U.S.C. § 1516a, (the "Tariff Act"), including an action contesting a final determination concluding an administrative review of an antidumping duty order.⁵ See 19 U.S.C. § 1516a(a)(2)(B)(iii). In reviewing a final determination, 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...