Home Meridian Int'l, Inc. v. United States

• Decision Date: 19 September 2012
• Citation: 865 F.Supp.2d 1311
• Parties: HOME MERIDIAN INTERNATIONAL, INC. d/b/a Samuel Lawrence Furniture Co. and Import Services, Inc., Plaintiffs, Great Rich (HK) Enterprises Co., Ltd., Dongguan Liaobushangdun Huada Furniture Factory, Nanhai Baiyi Woodwork Co., Ltd., and Dalian Huafeng Furniture Group Co., Ltd., Consolidated Plaintiffs, v. UNITED STATES, Defendant, American Furniture Manufacturers Committee for Legal Trade and Vaughan–Bassett Furniture Company, Inc., Intervenor Defendants.
• Court: U.S. Court of International Trade

865 F.Supp.2d 1311

HOME MERIDIAN INTERNATIONAL, INC. d/b/a Samuel Lawrence Furniture Co. and Import Services, Inc., Plaintiffs,

Great Rich (HK) Enterprises Co., Ltd., Dongguan Liaobushangdun Huada Furniture Factory, Nanhai Baiyi Woodwork Co., Ltd., and Dalian Huafeng Furniture Group Co., Ltd., Consolidated Plaintiffs,

v.UNITED STATES, Defendant,American Furniture Manufacturers Committee for Legal Trade and Vaughan–Bassett Furniture Company, Inc., Intervenor Defendants.

United States Court of

International Trade.

Slip Op. 12–120.

Court No. 11–00325.

Sept. 19, 2012.

Kristin H. Mowry, Mowry & Grimson, PLLC, of Washington, DC, argued for the plaintiffs and for the consolidated plaintiffs, Great Rich (HK) Enterprises Co., Ltd. and Dongguan Liaobushangdun Huada Furniture Factory. With her on brief were Jeffrey S. Grimson, Jill A. Cramer, Keith F. Huffman, Sarah M. Wyss, and Susan L. Brooks.

Ned H. Marshak, Bruce M. Mitchell, and Mark E. Pardo, Grunfeld Desiderio Lebowitz Silverman & Klestadt, LLP, of New York, NY, for the consolidated plaintiff, Nanhai Baiyi Woodwork Co., Ltd.

Lizbeth R. Levinson and Ronald M. Wisla, Kutak Rock LLP, of Washington, DC, for the consolidated plaintiff Dalian Huafeng Furniture Group Co., Ltd.

Joshua E. Kurland, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argued for defendant. With him on the brief were Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director, and Carrie A. Dunsmore, Trial Attorney. Of counsel on the brief was Shana Hofstetter, Attorney, Office of the Chief Counsel for Import Administration, Department of Commerce, of Washington, DC.

J. Michael Taylor, King & Spalding, LLP, of Washington, DC, argued for intervenor defendants. With him on the brief were Daniel L. Schneiderman, Joseph W. Dorn, Mark T. Wasden, Prentiss L. Smith, and Sarah K. Davis.

OPINION AND ORDER

RESTANI, Judge:

This action challenges the Department of Commerce's (“Commerce”) final results rendered in the fifth 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 and Final Rescission in Part, 76 Fed.Reg. 49,729, 49,729 (Dep't Commerce Aug. 11, 2011) (“ Final Results ”). Plaintiffs Home Meridian International, Inc. and Import Services, Inc. along with consolidated plaintiffs Great Rich (HK) Enterprises Co., Ltd. and Dongguan Liaobushangdun Huada Furniture Factory (collectively “HMI”) moved for judgment on the agency record. Mot. for J. Upon the Agency R. Pursuant to Rule 56.2 by Pls. Home Meridian Int'l, Inc. d/b/a Samuel Lawrence Furniture Co. & Pulaski Furniture Co. & Import Svcs., Inc. & Consol. Pl. Great Rich (HK) Enterprises Co., Ltd. & Dongguan Liaobushangdun Huada Furniture Factory (“HMI Br.”). Consolidated Plaintiffs Nanhai Baiyi Woodwork Co., Ltd. (“Nanhai Baiyi”) and Dalian Huafeng Furniture Group Co., Ltd. (“Huafeng”) each moved for judgment on the agency record. Mem. of Points and Auths. in Supp. of Consol. Pl. Dalian Huafeng Furniture Group Co., Ltd.'s 56.2 Mot. for J. on the Agency R. (“Huafeng Br.”); Mot. of Pl. Nanhai Baiyi Woodwork, Co., Ltd. for J. on the Agency R. Under USCIT Rule 56.2 (“Nanhai Baiyi Br.”). HMI adopted the arguments made by Huafeng. HMI Br. 33. Intervenor Defendants American Furniture Manufacturers Committee for Legal Trade and Vaughan–Bassett Furniture Company, Inc. (collectively “AFMC”), which were plaintiffs in one of the consolidated actions, also moved for judgment on the agency record. AFMC's Rule 56.2 Br. in Supp. of its Mot. for J. on the Agency R. (“AFMC Br.”). For the reasons stated below, the court remands in part and sustains in part the Final Results.

BACKGROUND

In January 2005, Commerce published an 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). In January 2010, AFMC and others requested an administrative review of certain companies exporting WBF to the United States between January 1, 2009 and December 31, 2009, thereby triggering the fifth administrative review of WBF.¹Wooden Bedroom Furniture From the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review and Intent To Rescind Review in Part, 76 Fed.Reg. 7534, 7535 (Dep't Commerce Feb. 10, 2011) (“ Preliminary Results ”). After publishing a notice of initiation and receiving questionnaire responses and comments, Commerce selected one mandatory respondent: Huafeng.²Id. at 7535. In Novemberand December 2010, Commerce verified the antidumping questionnaire and supplemental questionnaire responses of Huafeng. Id. at 7536.

In the Final Results, Commerce assigned Huafeng a separate rate of 41.75%.³Final Results, 76 Fed.Reg. at 49,733;see also Issues and Decision Memorandum for the Final Results of the Administrative Review of the Antidumping Duty Order on Wooden Bedroom Furniture from the People's Republic of China, A–570–890, POR 1/1/09–12/31/09 (Aug. 5, 2011) (“ Issues and Decision Memorandum ”), available at http:// ia. ita. doc. gov/ frn/ summary/ prc/ 2011– 20434– 1. pdf (last visited Sept. 17, 2012). All non-mandatory respondents also received Huafeng's separate rate of 41.75%. Final Results, 76 Fed.Reg. at 49,733. Commerce assigned the PRC-wide entity a rate of 216.01%. Id.

JURISDICTION & STANDARD OF REVIEW

The court has jurisdiction pursuant to 28 U.S.C. § 1581(c). The court will not uphold Commerce's final determination in an AD review if it is “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. Value of Lumber, Veneer and Plywood ⁴

Huafeng and HMI argue that Commerce erred when it used Philippine import data contemporaneous with the period of review (“POR”) instead of Huafeng's market economy purchases in order to value lumber, veneer, and plywood. HMI Br. 8; Huafeng Br. 8–28. The Government contends that Commerce's determination was proper because Huafeng's market economy purchases were not made during the POR and therefore not the “best available information.” Def.'s Resp. to Pls.' Rule 56.2 Mots. (“Def. Resp. Br.”) 23. Specifically, the Government argues that Commerce, in exercising its discretion to interpret its regulations, “has developed a practice, whenever possible, of using price data that are contemporaneous with the period of review....” Def. Resp. Br. 23. Huafeng and HMI's claim has merit.

In determining normal value for non-market economies, Commerce must use “the best available information....” 19 U.S.C. § 1677b(c)(1)(B). When valuing factors purchased from a market economy supplier, Commerce's regulations stipulate that:

[T]he Secretary normally will use the price paid to the market economy supplier. In those instances where a portion of the factor is purchased from a market economy supplier and the remainder from a nonmarket economy supplier, the Secretary normally will value the factor using the price paid to the market economy supplier.

19 C.F.R. § 351.408(c)(1). Furthermore, Commerce creates:

... a rebuttable presumption that market economy input prices are the best available information for valuing an entire input when the total volume of the input purchased from all market economy sources during the period of investigation or review exceeds 33 percent of the total volume of the input purchased from all sources during the period. In these cases, unless case-specific facts provide adequate grounds to rebut the Department's presumption, the Department will use the weighted-average market economy purchase price to value the entire input.

Antidumping Methodologies: Market Economy Inputs, Expected Non–Market Economy Wages, Duty Drawback; and Request for Comments, 71 Fed.Reg. 61,716, 61,717–18 (Dep't Commerce Oct. 19, 2006) (“ Antidumping Methodologies ”).⁵

Section § 1677b “sets forth procedures in an effort to determine margins ‘as accurately as possible.’ ” Lasko Metal Products, Inc. v. United States, 43 F.3d 1442, 1446 (Fed.Cir.1994) (quoting Rhone Poulenc, Inc. v. United States, 899 F.2d 1185, 1191 (Fed.Cir.1990)) (finding that Commerce may permissibly mix methodologies, using market purchases to value some factors and surrogates to value others). “Where we can determine that a NME producer's input prices are market determined, accuracy, fairness, and predictability are enhanced by using those prices. Therefore, using surrogate values when market-based values are available would, in fact, be contrary to the intent of the law.” Lasko, 43 F.3d at 1446 (quoting Oscillating Fans and Ceiling Fans from the People's Republic of China, 56 Fed.Reg. 55,271, 55,275 (Dep't Commerce Oct. 25, 1990)); see Shakeproof Assembly Components Div. of Ill. Tool Works, Inc. v. United States, 268 F.3d 1376, 1379, 1383 (Fed.Cir.2001) (agreeing with Commerce that “the actual price paid for the imports constitutes the best available information....”); Taian Ziyang Food Co. v. United States, 783 F.Supp.2d 1292, 1330 (CIT 2011) (finding that “product specificity” takes precedence over contemporaneity). But, Commerce also has an interest in using values that are contemporaneous with the POR because Commerce must establish the value of a factor of production for a specific time period in order to calculate the normal value of imports within that time period as accurately as possible under 19 U.S.C. § 1677b(a)(1)(A). See Shakeproof Assembly Components Div. of Ill. Tool Works, Inc. v. United States, 30 CIT 1173, 1177, 2006 WL 2457626 (2006).

The parties agree that Huafeng made no market economy purchases of lumber during the POR. Huafeng Br. 7. Huafeng alleges that it purchased 100% of its pine, poplar, birch,...