Marvin Furniture (Shanghai) Co. v. United States

• Decision Date: 11 March 2014
• Docket Number: No. 2013–1156.,2013–1156.
• Citation: 744 F.3d 1319
• Parties: MARVIN FURNITURE (SHANGHAI) CO., LTD., Plaintiff–Appellant, v. UNITED STATES, Defendant–Appellee, and American Furniture Manufacturers Committee for Legal Trade and Vaughanbassett Furniture Company, Inc., Defendants–Appellees.
• Court: U.S. Court of Appeals — Federal Circuit

744 F.3d 1319

MARVIN FURNITURE (SHANGHAI) CO., LTD., Plaintiff–Appellant,

v.UNITED STATES, Defendant–Appellee,andAmerican Furniture Manufacturers Committee for Legal Trade and Vaughanbassett Furniture Company, Inc., Defendants–Appellees.

No. 2013–1156.

United States Court of Appeals,Federal Circuit.

March 11, 2014.

John M. Peterson, Neville Peterson LLP, of New York, New York, argued for plaintiff-appellant. With him on the brief was Richard F. O'Neill.

Claudia Burke, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee United States. 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, United States Department of Commerce, of Washington, DC.

James Michael Taylor, King & Spalding, LLP, of Washington, DC, argued for defendants-appellees American Furniture Manufacturers Committee for Legal Trade, et al. With him on the brief were Joseph W. Dorn and P. Lee Smith. Of counsel was Daniel Schneiderman.

Before RADER, Chief Judge, PROST, and REYNA, Circuit Judges.

REYNA, Circuit Judge.

Marvin Furniture (Shanghai) Co. Ltd. (“Marvin”) appeals a final decision of the Court of International Trade sustaining a rescission by the Department of Commerce (“Commerce”) of Marvin's new shipper review in connection with an antidumping order on wooden bedroom furniture from the People's Republic of China. Marvin Furniture (Shanghai) Co. v. United States, 867 F.Supp.2d 1302 (Ct. Int'l Trade 2012). For the reasons below, we affirm.

Background

In 2005, Commerce issued an antidumping duty order on wooden bedroom furniture from the People's Republic of China. See Wooden Bedroom Furniture from the People's Republic of China, 70 Fed.Reg. 329 (Dep't of Commerce Jan. 4, 2005) (“the antidumping order”). Pursuant to the antidumping order, importers of subject merchandise who were not individually investigated and assigned an individual rate by Commerce are required to post a cash deposit at a country-wide rate of 216.01%.

Marvin is a Chinese producer and exporter of juvenile furniture. Marvin did not participate in the investigation resulting in the antidumping order and did not export subject merchandise to the United States during the period of investigation. On July 30, 2011, Marvin requested a new shipper review in order to obtain an individual antidumping duty rate and avoid the 216.01% country-wide rate. In its request, Marvin indicated that it had not exported subject merchandise into the United States prior to June 20, 2011.

Based on U.S. Customs and Border Protection data, Commerce determined that exports of subject merchandise manufactured by Marvin had entered the United States on September 8 and September 22, 2010. Commerce requested additional information from Marvin, and Marvin submitted a letter explaining that both entries contained only non-subject merchandise samples for a trade show and that no sales or offers for sale were made. Commerce accepted Marvin's explanation and on August 25, 2011, initiated a new shipper review covering Marvin's exports of subject merchandise entered during the period from January 1 through June 30, 2011. Notice of the initiation of the new shipper review was published six days later in the Federal Register.See Wooden Bedroom Furniture from the People's Republic of China, 76 Fed.Reg. 54,208 (Dep't of Commerce Aug. 31, 2011).

On August 26, 2011, Marvin submitted additional information to Commerce regarding the September 2010 entries. Marvin explained that the imported goods consisted “primarily” of non-subject merchandise and included some subject merchandise. Marvin continued to maintain that the goods were samples not entered for consumption or sale. On August 31, 2011, Marvin notified Commerce that it had discovered that the September 2010 imports were in fact entered for consumption. Thus, contrary to what Marvin indicated in its initial request ¹ for a new shipper review, Marvin's first entries of subject goods were made prior to June 20, 2011. Marvin nonetheless maintained that the error in its request was harmless because the request was still timely, as it was made within one year of the first entry of subject merchandise.

On January 10, 2012, Commerce preliminarily rescinded Marvin's new shipper review. Wooden Bedroom Furniture from the People's Republic of China, 77 Fed.Reg. 1456 (Dep't of Commerce Jan. 10, 2012). Commerce determined that, because Marvin's request for a new shipper review did not report the September 2010 entries, Marvin failed to submit a request based on the date and volume of its first entry of subject merchandise. Commerce therefore concluded that Marvin's request “did not satisfy the regulatory requirements” of 19 C.F.R. § 351.214(b)(2)(iv)(A) and (B) and that Marvin was thus not entitled to a new shipper review. See 77 Fed.Reg. at 1458.

In its response to the preliminary determination, Marvin argued that the rescission was improper because it was based on a harmless and unintentional error that did not affect its eligibility for a new shipper review. Commerce disagreed and made the rescission final on April 10, 2012. See Wooden Bedroom Furniture from the People's Republic of China, 77 Fed.Reg. 21,536 (Dep't of Commerce Apr. 10, 2012). Commerce reaffirmed that Marvin's request did not meet the requirements of 19 C.F.R. § 351.214(b)(2)(iv)(A) and (B) because it did not include data establishing the date and volume of its first entry of subject merchandise. 77 Fed.Reg. at 21,537–21,538.

Marvin filed suit in the Court of International Trade (“Trade Court”), seeking to overturn Commerce's final rescission. The court affirmed Commerce's determination, finding that Marvin's failure to satisfy the regulatory requirements for a new shipper review rendered its request “facially infirm” under 19 C.F.R. §§ 351.214(b)(2)(iv)(A) and (B). Marvin Furniture, 867 F.Supp.2d at 1308. Noting that Marvin was not challenging the legality of any part of § 351.214, the court concluded that Commerce's interpretation of § 351.214 was reasonable, supported by substantial evidence, and in accordance with law. See id. Finally, the court also held that 19 U.S.C. § 1677m, which allows a party to correct prior filings, was inapplicable because Marvin's request for a new shipper review was not filed in “response to a request for information” as contemplated under the statute. See19 U.S.C. § 1677m(d).

Marvin timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5).

Discussion

We review decisions of the Trade Court without deference, applying the same standard of review that it applies in its review of Commerce's determinations. Mid Continent Nail Corp. v. United States, 725 F.3d 1295, 1300 (Fed.Cir.2013). When reviewing Commerce's determinations in an antidumping duty investigation, the Trade Court examines whether the determinations are “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). We review the Trade Court's factual findings for clear error. Arko Foods Int'l, Inc. v. United States, 654 F.3d 1361, 1364 (Fed.Cir.2011).

The antidumping duty trade statutes authorize Commerce to impose duties on imported goods that are sold in the United States at less than fair value. See19 U.S.C. § 1673. Once an antidumping duty order covering the goods subject to investigation is in place, Commerce may conduct an administrative review for “new” exporters or producers who did not export the subject merchandise during the period of investigation. See19 U.S.C. § 1675(a)(2)(B). These “new shipper reviews” give exporters or producers whose sales have not been previously examined by Commerce an opportunity to obtain their own individual antidumping duty rates.

Commerce has promulgated regulations that set out the procedures governing new shipper reviews. Pursuant to these regulations, an exporter or producer seeking a new shipper review must include in its initial request documentation establishing:

(A) The date on which subject merchandise of the exporter or producer making the request was first entered, or withdrawn from warehouse, for consumption, or, if the exporter or producer cannot establish the date of first entry, the date on which the exporter or producer first shipped the subject merchandise for export to the United States;

(B) The volume of that and subsequent shipments; and

(C) The date of the first sale to an unaffiliated customer in the United States.

19 C.F.R. § 351.214(b)(2)(iv).

Marvin argues that Commerce acted unlawfully when it determined that Marvin was ineligible for a new shipper review on the basis that its initial request listed an erroneous date of first entry. According to Marvin, notwithstanding any deficiencies in its initial request, it satisfied the statutory and regulatory requirements because it did not export subject merchandise during the period of investigation and it made its request for a new shipper review within the one-year regulatory period. Marvin thus contends that it was “eligible” for a new shipper review and that Commerce's determination to the contrary was neither in accordance with law nor supported by substantial evidence.

We disagree that Marvin was “eligible” for a new shipper review. The relevant regulations clearly provide that a new shipper initial request must, among other things, establish the date and volume of the first entry. See19 C.F.R. § 351.214(b)(2)(iv). It is undisputed that Marvin's initial request did not contain this information because it failed to disclose the September 2010 entries and asserted that a later date (June 20, 2011) was the date of first entry. Although Marvin ultimately provided correct...