Mark David v. United States
| Decision Date | 18 November 2014 |
| Docket Number | Slip Op. 14–132.,Court No. 13–00233. |
| Citation | 24 F.Supp.3d 1355 |
| Parties | MARK DAVID, A Division of Baker, Knapp & Tubbs, Inc., Plaintiff, and Bryan Ashley International, Metropolis Manufacturing, Inc. (dba Vaughan Benz ), and MGM Resorts International Design, Consolidated Plaintiffs, v. UNITED STATES, Defendant, and American Furniture Manufacturers: Committee for Legal Trade and Vaughan–Bassett Furniture Co., Inc., Defendant–Intervenors. |
| Court | U.S. Court of International Trade |
Alexander H. Schaefer and Hea J. Koh, Crowell & Moring LLP, of Washington, DC, for Mark David, a division of Baker, Knapp & Tubbs, Inc., plaintiff.
Peter Koenig, Squire Patton Boggs LLP, of Washington, DC, for Bryan Ashley International, Metropolis Manufacturing, Inc., and MGM Resorts International Design, consolidated plaintiffs.
Stuart F. Delery, Assistant Attorney General, Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director, and Douglas G. Edelschick, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for defendant. Of counsel on the brief was Shana A. Hofstetter, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.
Joseph W. Dorn, J. Michael Taylor and P. Lee Smith, King & Spalding LLP, of Washington, DC, for American Furniture Manufacturers Committee for Legal Trade and Vaughan–Bassett Furniture Company, Inc., defendant-intervenors.
Plaintiff, Mark David, a division of Baker, Knapp, and Tubbs, Inc. (“Mark David” or “Plaintiff”), moves for judgment on the agency record contesting defendant United States Department of Commerce's (“Commerce”) determination in Wooden Bedroom Furniture From the People's Republic of China: Final Results of Antidumping Duty Administrative Review; 2011, 78 Fed. Reg. 35,249 (June 12, 2013). Consolidated Plaintiffs, Bryan Ashley International, Metropolis Manufacturing, Inc., and MGM Resorts International Design, join and supplement Plaintiff's motion. See Pls. Adoption of Pl. Br. at 1–3. Commerce and defendant-intervenors, American Furniture Manufacturers Committee for Legal Trade and Vaughan–Bassett Furniture Company, Inc., oppose Plaintiff's motion. Def.'s Resp. to Pl.'s and Consolidated Pls.' Rule 56.2 Mot. for J. on the Agency R. at 1–2. The AFMC's Resp. in Opp'n to Mark David's Rule 56.2 Mot. for J. on the Agency R. at 1. For the following reasons, Plaintiff's motion is denied.
In January 2005, Commerce issued an antidumping duty order covering wooden bedroom furniture (“WBF”) from the People's Republic of China (“PRC”). Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: WBF From the PRC, 70 Fed. Reg. 329, 330 (Jan. 4, 2005). Commerce acknowledged Shanghai Maoji Imp. And Exp. Co., Ltd. (“Maoji”) as qualifying for a separate rate status and assigned a dumping margin of 6.68%. WBF From the PRC: Corrected Notice of Court Decision Not in Harmony With the Final Determination of Sales at Less Than Fair Value and Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order Pursuant to Court Decision, 76 Fed. Reg. 53,409, 53,411–53,412 (Aug. 26, 2011).
Commerce initiated the seventh administrative review during the period of review beginning on January 1, 2011 through December 31, 2011. WBF From the PRC: Initiation of Administrative Review, 77 Fed. Reg. 12,235, 12,237 (Feb. 29, 2012). During the seventh administrative review, Commerce named Maoji as a mandatory respondent. WBF From the PRC: Preliminary Results of Antidumping Duty Administrative Review; 2011, 78 Fed. Reg. 8493, 8494 (Feb. 6, 2013) (“Preliminary Results ”). Maoji responded to Commerce's antidumping questionnaire and supplemental questionnaires between July and October 2012. Decision Memorandum for Preliminary Results of Antidumping Duty Administrative Review: WBF from the PRC, at 3 (February 1, 2013) (“Preliminary Decision Memorandum ”). During the review Maoji notified Commerce that it was not practicable for it to provide a response to the Section D questionnaire or the supplemental Section A questionnaire. See Letter from Maoji to Commerce re: WBF from PRC (Aug. 3, 2012), Pub. Rec. 325, Attach. 1 at 1.1
Commerce issued its preliminary results on February 6, 2013. Preliminary Results, 78 Fed. Reg. at 8493. Commerce preliminarily determined that Maoji failed to answer all sections of Commerce's questionnaire, and thus failed to establish its eligibility for a separate rate status. Id. at 8494. As a result, Commerce treated Maoji as part of the PRC-wide entity. Id. at 8494.
Commerce also preliminarily determined that the PRC-wide entity, including Maoji, did not cooperate to the best of its ability during the review. Id. at 8494. Therefore, Commerce relied on adverse facts available (“AFA”) to determine the dumping margin for the PRC-wide entity. Id. at 8494. Commerce assigned an AFA rate of 216.01 percent to the PRC-wide entity, including Maoji, which was calculated based on a 2004–2005 New Shipper Review. WBF From The PRC: Final Results of the 2004–2005 Semi–Annual New Shipper Reviews, 71 Fed. Reg. 70,739, 70,741 (December 6, 2006). Commerce stated that the rate had been corroborated in previously completed administrative reviews in which it found that the 216.01% rate for the PRC-wide entity was within “the range of the calculated margins on the record of the [fifth] administrative review.” Preliminary Results at 15.
On March 8, 2013, Plaintiff, Mark David USA (“Plaintiff”), an importer of WBF, filed case briefs with Commerce. WBF from the PRC: Issues and Decision Memorandum for the Final Results of Review, at 1 (June 5, 2013) (“Decision Memorandum”). Mark David contests whether the 216.01% margin, as assigned to Maoji as part of the PRC-wide entity was reasonable.
Commerce maintained its preliminary findings in its Final Results. WBF From the PRC: Final Results of Antidumping Duty Administrative Review; 2011, 78 Fed. Reg. 35,249, 35,249 (June 12, 2013) (“Final Results ”).
This Court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2006) and Section 516A(a)(2)(B)(iii) of the Tariff Act of 1930 as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2006).
This Court will uphold Commerce's determination unless 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). Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951).
Additionally, “courts look for a reasoned analysis or explanation for an agency's decision as a way to determine whether a particular decision is arbitrary, capricious, or an abuse of discretion.” Wheatland Tube Co. v. United States, 161 F.3d 1365, 1369 (Fed.Cir.1998). “An abuse of discretion occurs where the decision is based on an erroneous interpretation of the law, on factual findings that are not supported by substantial evidence, or represent an unreasonable judgment in weighing relevant factors.” WelCom Prods., Inc. v. United States, 36 CIT ––––, 865 F.Supp.2d 1340, 1344 (2012) (citing Star Fruits S.N.C. v. United States, 393 F.3d 1277, 1281 (Fed.Cir.2005) ). “An agency action is arbitrary when the agency offers insufficient reasons for treating similar situations differently.” SKF USA Inc. v. United States, 263 F.3d 1369, 1382 (Fed.Cir.2001).
Maoji does not dispute that they failed to participate fully in the review, and that they therefor can be subjected to an AFA rate. The issue before the court is instead whether Commerce's application of the 216.01% PRC-wide AFA rate to Maoji was reasonable. Plaintiff argues that the 216.01% PRC-wide AFA rate was neither reliable nor relevant. See Pl.'s Mem. Supp. R. 56.2 J. Agency R. at 5–10 (“Pl.'s Mem.”). According to Plaintiff, Commerce applied an “outdated” and “unsupported” margin that did not reflect Maoji's commercial reality. Id.
In antidumping duty proceedings involving merchandise from a non-market economy (“NME”), as is the case here, Commerce presumes that all respondents are government controlled and therefore subject to the country-wide rate. See Sigma Corp. v. United States, 117 F.3d 1401, 1405 (Fed.Cir.1997). Commerce does allow respondents to rebut this presumption, however, by establishing the absence of both de jure and de facto government control. Id. Respondents who make this showing are eligible for a separate rate. Id. When a company fails to rebut the presumption of government control, Commerce employs that presumption and applies the country-wide rate to its merchandise. See id.
Plaintiff does not appear to dispute Commerce's finding that Maoji failed to rebut the presumption of government control in the Final Results. During the review Maoji notified Commerce that it was not practicable for it to provide a response to the Section D questionnaire or the supplemental Section A questionnaire. See PR 325 attach. 1 at 1. Commerce determined that Maoji was a part of the PRC-wide entity. See Shandong Mach. Imp. & Exp. Co. v. United States, 33 CIT 810, 815, 2009 WL 2017042 (2009). Because Maoji failed to respond to Commerce's questionnaires regarding its separate rate eligibility during the review, Commerce reasonably concluded that Maoji failed to demonstrate its absence of government control. See Sigma Corp., 117 F.3d at 1405.
The main issue for the court to evaluate is therefor whether Commerce's application of the 216.01% PRC-wide AFA rate to Maoji, which has not demonstrated its independence from the PRC-wide entity, was reasonable. A margin based upon AFA must be “a reasonably accurate estimate of the respondent's actual rate, albeit with some built-in increase intended as a deterrent to noncompliance.” F.lli De Cecco Di Filippo Fara S. Martino...
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