Swiff-Train Co. v. United States

• Decision Date: 16 July 2014
• Docket Number: Court No. 12–00010.,Slip Op. 14–82.
• Citation: 999 F.Supp.2d 1334
• Parties: SWIFF–TRAIN CO., Metropolitan Hardwood Floors, Inc., BR Custom Surface, Real Wood Floors, LLC, Galleher Corp. and DPR International, LLC, Plaintiffs, v. UNITED STATES, Defendant, and Coalition for American Hardwood Parity, Defendant–Intervenor.
• Court: U.S. Court of International Trade

999 F.Supp.2d 1334

SWIFF–TRAIN CO., Metropolitan Hardwood Floors, Inc., BR Custom Surface, Real Wood Floors, LLC, Galleher Corp. and DPR International, LLC, Plaintiffs

v.UNITED STATES, DefendantandCoalition for American Hardwood Parity, Defendant–Intervenor.

Slip Op. 14–82.

Court No. 12–00010.

United States Court of International Trade.

July 16, 2014.

William E. Perry and Emily Lawson, Dorsey & Whitney, LLP, of Seattle, WA, for the plaintiffs.

Mary Jane Alves, Attorney, Office of the General Counsel, U.S. International Trade Commission, of Washington, DC, for the defendant. With her on the brief were Dominic L. Bianchi, General Counsel, Neal J. Reynolds, Assistant General Counsel, and Robin L. Turner, Attorney.

Jeffrey S. Levin, Levin Trade Law, P.C., of Bethesda, MD, for the defendant-intervenor.

OPINION

MUSGRAVE, Senior Judge:

This opinion considers the Remand Views¹ of the U.S. International Trade Commission (“Commission” or “ITC”) in response to 37 CIT ––––, 904 F.Supp.2d 1336, 1344–48 (2013), addressing certain of the Commission's material injury determinations in the investigations of multilayered wood flooring (“MLWF”) from the People's Republic of China (“PRC”).² Familiarity with that opinion is presumed. Remanded were (1) the decision not to investigate domestic producers of hardwood plywood used for flooring, (2) findings on the issue of price suppression/depression, and (3) the impact the subject imports had on the domestic industry in light of the collapse of the housing market during the period of investigation. Addressing those issues in its Remand Views, the Commission has again determined the domestic MLWF industry materially injured by reason of subject MLWF imports. After hearing oral argument on the parties' comments on June 24, 2014, the court must conclude that the Remand Views comply with the orders of remand and sustain the material injury determination.

Discussion

I

On remand, the Commission reopened the record to solicit domestic MLWF production responses from 20 U.S. hardwood plywood manufacturers. See Multilayered Wood Flooring from [the PRC], 78 Fed.Reg. 30329 (USITC May 22, 2013) (solicitation of participation in remand proceeding). Written comments on remand were limited to the remanded issues, interested parties to the original investigations who participate in the present action, and any new information obtained by the Commission not through the comment process. The Commission denied the request of the U.S. importers, plaintiffs herein, to release a draft producer questionnaire for comment, and the Commission here maintains that its definition of the domestic MLWF industry as investigated in the original investigations is supported by the record. The court finds that to be the case.

The plaintiffs contend that the Remand Views are procedurally deficient, that as a matter of due process they should have been allowed to offer input into the tailoring of the questions posed to the domestic hardwood plywood producers upon the reopening of the record. Pls' Comments at 7–8. The Commission avers that it simply followed its usual approach for remands and that its rules do not require soliciting input on questionnaires issued during remand proceedings. Given the record and the parties' representations, the court cannot find procedural abuse of discretion in the Commission's interpretation of the remand orders and its undertakings thereon.

Substantively, the plaintiffs complain that the remand questionnaire issued to the domestic hardwood plywood producers was simply the same language that appeared in the original questionnaire issued to the domestic MLWF industry insofar as it included “just the domestic industry definition (i.e., the scope definition)”.³ Noting in their comments that the domestic hardwood plywood industry definition explicitly excluded certain hardwood plywood product that is subject to and covered by the MLWF orders, i.e., hardwood plywood product that is “unfinished” MLWF or suitable for flooring and falls within the scope of the MLWF investigations, and emphasizing at oral argument that U.S. Customs and Border Protection has been “stopping” certain imports of hardwood plywood on the ground that it could be suitable for use as MLWF, the plaintiffs argue that the queried domestic producers of hardwood plywood may not have understood or appreciated the inclusiveness of what actually constitutes the scope of the domestic like product, i.e., that the domestic hardwood plywood producers (or the Commission) may not have properly imputed “used for MLWF” when answering (or asking) the relevant question, and also that the Commission failed to properly ask or consider if their product “is suitable for that use.” Pls' Comments at 9.

On this point, the court must conclude the plaintiffs' contentions both speculative and in conflict with their previous argument on administrative exhaustion. The prior opinion considered the plaintiffs' arguments into investigating potential “producers of the domestic hardwood plywood industry used for flooring as part of the domestic like product industry” sufficient for purposes of exhaustion, 37 CIT at ––––, 904 F.Supp.2d at 1340, and given the overlap in the definition of MLWF and hardwood plywood⁴ the court deemed the Commission's explanation of why it had not investigated hardwood plywood suitable for use as MLWF flooring (i.e., potentially “unfinished” MLWF) insufficiently responsive to the question posed by the plaintiff regarding the scope of the domestic MLWF industry. Id. at ––––, 904 F.Supp.2d at 1342. On remand, however, the Commission had discretion over what additional information to solicit from the identified domestic hardwood plywood producers in upholding its duty to take Commerce's determination on the scope of subject imports at face value in order to define the domestic like product. See, e.g., Federal Power Commission v. Transcontinental Gas Pipe Line Corp., 423 U.S. 326, 333, 96 S.Ct. 579, 46 L.Ed.2d 533 (1976). Cf. USEC, Inc. v. United States, 34 Fed.Appx. 725, 730 (Fed.Cir.2002) (“it is Commerce's investigation that defines the scope of the ITC's analysis”).⁵ The plaintiff was provided the opportunity to comment on the original questionnaire and instructions at the outset of the investigation,⁶ and in the instruction booklet accompanying the 30–page U.S. Producer Questionnaire issued in the remand proceedings (based upon the original MLWF industry questionnaire), the domestic like product definition is restated co-extensively with the scope of the investigations. The questionnaire asked, inter alia, “Has your firm produced multilayered wood flooring (as defined in the instruction booklet) at any time between January 1, 2008 and June 2011?” CDoc 556R (June 26, 2013). For the purpose of answering, the questionnaire referred the recipient to the instruction booklet.

Despite the apparent overlap of hardwood plywood and MLWF in the scope definition of MLWF,⁷ during the remand proceedings none of the 20 domestic producers of hardwood responded that they manufactured product used for flooring. The plaintiffs do not explain why domestic hardwood plywood producers would be, or should be presumed to be, unknowledgeable regarding what constitutes either an “unfinished” MLWF product or a product suitable for use as MLWF (and “irrespective” of the actual uses to which their hardwood plywood product are put⁸ ), nor do they explain why those producers as a whole⁹ should be singled out, of domestic like product, for special questionnaire treatment within the domestic MLWF industry. The court therefore finds that the Commission properly complied with the order of remand on this issue.

II

The Commission was also asked on remand to make explicit its findings on the effect of the subject imports on the price suppression/depression factors. On remand, the Commission found evidence that the subject imports depressed prices of the domestic like product, although it did not find “significant” price suppression. See Remand Views at 23. The Commission based its finding of price depression on the traditional pricing data for one pricing product as well as supplemental pricing data, on purchaser questionnaire responses, and on confirmed lost revenue allegations. CDoc 555R at 19–20. It found both traditional and supplemental pricing data showing overall declines in domestic like product prices in the face of significant underselling by subject imports from the PRC. Id. at 31–32; CDoc 507 (Oct. 27, 2011) at Tables V–1—V–8; CDoc 525 (Dec. 5, 2011) (majority views) at 44, n. 202; CDoc 553R (Oct. 18, 2013). Between 2008 and 2010, the supplemental pricing data showed “overall declines in prices of the domestic like product for birch, hickory, maple, oak, red oak, and walnut as well as overall declines in prices of the domestic like product for birch products, hickory products, maple products, oak products, and walnut products.” CL555R at 20; CL525 at 44 n. 202. The Commission found further “[e]vidence from purchasers' questionnaires ... indicat[ing] that domestic producers were forced to lower prices to compete with low-priced imports of MLWF from subject producers in [the PRC].” CL555R at 20 (citing CL525 at 45 n. 204); CL507 at V–26—V–27 (seven of eight responding purchasers reported that domestic producers reduced prices to compete with prices of MLWF from the PRC). The Commission found that purchaser confirmations of domestic producers' lost revenue allegations further demonstrated that the domestic industry lowered prices due to low-priced imports of MLWF from the PRC. CDoc 555R at 20; CDoc 525 at 45; CDoc 507 (Oct. 27, 2011) (final staff report) at V–27, V–29.

The plaintiffs argue that the Commission's analysis improperly emphasizes traditional pricing data for one product. The foregoing, however, indicates more than mere emphasis on traditional pricing for one product. As requested, furthermore, the Commission also addressed the Dissenting Commissioner's...