Fine Furniture (Shanghai) Ltd. v. United States

521 F.Supp.3d 1337

FINE FURNITURE (SHANGHAI) LIMITED, et al., Plaintiffs,andLumber Liquidators Services, LLC, et al., Plaintiff-Intervenors,

v. UNITED STATES, Defendant,andCoalition for American Hardwood Parity, Defendant-Intervenor.

Slip Op. 21-69

Consolidated Court No. 14-00135

United States Court of International Trade.

June 2, 2021

Sarah M. Wyss, Mowry & Grimson, PLLC, of Washington, D.C., for plaintiff Fine Furniture (Shanghai) Limited. With her on the brief was Kristin H. Mowry.

Gregory S. Menegaz, deKieffer & Horgan, PLLC, of Washington, D.C., for plaintiffs Dunhua City Jisen Wood Industry Co., Ltd., et al.

Thomas J. Trendl, Steptoe & Johnson LLP, of Washington, D.C., for 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 plaintiffs Dalian Kemian Wood Industry Co., Ltd., et al.

Ronald M. Wisla, Fox Rothschild LLP, of Washington, D.C., for plaintiffs Baishan Huafeng Wood Product Co., Ltd., et al. With him on the brief was Lizbeth R. Levinson.

Mark R. Ludwikowski, Clark Hill PLC, of Washington, D.C., for plaintiff-intervenor Lumber Liquidators Services, LLC.

Tara K. Hogan, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., for defendant. With her on the brief were Bryan M. Boynton, Acting Assistant Attorney General, and Jeanne E. Davidson, Director.

Timothy C. Brightbill, Wiley Rein LLP, of Washington, D.C., for defendant-intervenor Coalition for American Hardwood Parity. With him on the brief were Stephanie M. Bell and Tessa V. Capoleto.

OPINION AND ORDER

Stanceu, Judge:

Plaintiff Fine Furniture (Shanghai) Limited ("Fine Furniture") and a number of other Chinese producers or exporters of multilayered wood flooring brought actions, now consolidated, contesting a final, published determination by the International Trade Administration, U.S. Department of Commerce ("Commerce" or the "Department"). Commerce issued that determination to conclude the first periodic administrative review of an antidumping duty order on imports of certain multilayered wood flooring from the People's Republic of China (the "PRC" or "China").

Pursuant to a joint motion of plaintiffs, plaintiff-intervenors, defendant, and defendant-intervenor, the court orders Commerce to conduct certain administrative proceedings, as discussed herein, necessitated by developments since the issuance of the court's most recent opinion in this litigation. The court denies defendant's motion to dismiss two plaintiffs, Fine Furniture and Dunhua City Jisen Wood Industry Co., Ltd. ("Dunhua Jisen") from this case.

I. BACKGROUND

The background of this action is set forth in the court's prior opinions, which the court summarizes and supplements herein. See Fine Furniture (Shanghai) Ltd. v. United States , 40 CIT ––––, 182 F. Supp. 3d 1350 (2016) (" Fine Furniture I "); Fine Furniture (Shanghai) Ltd. v. United States , 41 CIT ––––, 2017 WL 2928783 (July 7, 2017) (" Fine Furniture II "); Fine Furniture (Shanghai) Ltd. v. United States , 42 CIT ––––, 321 F. Supp. 3d 1282 (2018) (" Fine Furniture III ").

A. The Contested Determination

Commerce published the contested determination (the "Amended Final Results") as 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. The Order and the First Administrative Review

Commerce issued an antidumping duty order on certain multilayered wood flooring from the PRC (the "Order") in late 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) ("Order "). In the antidumping duty investigation resulting in the Order, Commerce identified three respondents (the "mandatory" respondents) for individual investigation. These were Zhejiang Yuhua Timber Co., Ltd. ("Yuhua"), Zhejiang Layo Wood Industry Co., Ltd. ("Layo Wood"), and the Samling Group ("Samling").

Multilayered Wood Flooring From the People's Republic of China: Final Determination of Sales at Less Than Fair Value , 76 Fed. Reg. 64,318, 64,318 (Int'l Trade Admin. Oct. 18, 2011) ("Final Determination "). Commerce assigned estimated dumping margins of zero to Yuhua, 3.97% to Layo Wood, and 2.63% to Samling. Order , 76 Fed. Reg. at 76,692. Commerce assigned the uninvestigated "separate rate" respondents, a group that included Fine Furniture and Dunhua Jisen, an estimated rate of 3.30%—the average of the margins assigned to Layo Wood and Samling. Id. at 76,691 –92. The "separate rate" respondents were Chinese producers or exporters of the subject merchandise that Commerce found to have established independence from the PRC government but did not select for individual investigation. Final Determination , 76 Fed. Reg. at 64,322.

In January 2013, Commerce initiated the first periodic administrative review of the Order, covering the period of May 26, 2011 through November 30, 2012 (the "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 Chinese producer and exporter of multilayered wood flooring, was one of three "mandatory" respondents Commerce selected in the first administrative review for individual examination. See Amended Final Results , 79 Fed. Reg. at 35,315. The other two mandatory respondents in the first review were Armstrong Wood Products (Kunshan) Co., Ltd. ("Armstrong") and Nanjing Minglin Wooden Industry Co., Ltd. ("Minglin"), who are not parties to this case. See id. at 35,317.

In the Amended Final Results, Commerce assigned Fine Furniture an individual weighted average dumping margin of 5.92% and assigned individual de minimis margins to Armstrong and Minglin. Id. at 35,316. Noting that Fine Furniture was the only respondent assigned an individual weighted average dumping margin that was not de minimis , Commerce assigned a rate of 5.92% to 69 unexamined separate rate respondents. Id. at 35,315. These respondents were Chinese producers or exporters of the subject merchandise that Commerce found to have established independence from the PRC government but did not select for individual examination in the first review. See id. at 35,317.

C. The Parties to this Consolidated Case

Fine Furniture and the "Separate Rate Plaintiffs," who are 42 of the 69 Chinese producers or exporters of multilayered wood flooring that were unexamined separate rate respondents in the first review, are the plaintiffs and plaintiff-intervenors in this action. Dunhua Jisen is among the Separate Rate Plaintiffs. The Coalition for American Hardwood Parity (the "Coalition"), the petitioner in the antidumping duty investigation, is the defendant-intervenor.

D. Proceedings before the Court

In Fine Furniture I , the court held unlawful the calculation of a deduction Commerce made for Chinese irrecoverable value-added tax ("VAT") when determining a constructed export price for Fine Furniture's subject merchandise. Fine Furniture I , 40 CIT at ––––, 182 F. Supp. 3d at 1371. Also, the court disallowed two decisions Commerce made in determining the normal value of Fine Furniture's subject merchandise, which were the Department's choice of financial statements for use in calculating surrogate financial ratios and its calculation of a surrogate value for Fine Furniture's use of electricity. Id.

After defendant requested clarification pertaining to the order the court issued in Fine Furniture I , the court issued an opinion stating that Commerce must reconsider its decision on the financial statements that were most appropriate for use in calculating Fine Furniture's financial ratios. Fine Furniture II , 41 CIT at ––––, 2017 WL at *3.

Commerce filed the first remand redetermination on August 28, 2017, which included a redetermined weighted average dumping margin of 0.73% for Fine Furniture. Fine Furniture III , 42 CIT at ––––, 321 F. Supp. 3d at 1286. Based on this margin, Commerce assigned a rate of 0.73% to the separate rate respondents involved in the litigation, i.e., the Separate Rate Plaintiffs. Id. The court sustained the Department's recalculation of the deduction for VAT and its decisions on the choice of financial statements for use in determining Fine Furniture's surrogate financial ratios. 42 CIT at ––––, 321 F. Supp. 3d at 1287–92. The court ordered Commerce to reconsider on remand its selection of the surrogate value for Fine Furniture's electricity usage, reasoning that the record did not contain substantial evidence to support a finding that the rates Commerce selected were the best available information on the record for this purpose. 42 CIT at ––––, 321 F. Supp. 3d at 1293–97. As a result, the court did not sustain the weighted average dumping margin of 0.73% Commerce determined for Fine Furniture and the equivalent rate Commerce assigned to the Separate Rate Plaintiffs.

Following issuance of the court's opinion and order in Fine Furniture III , Commerce requested an extension of time to file its second remand redetermination. Def.’s Consent Mot. for an Extension of Time to File Remand Redeterm. (Aug. 2, 2018), ECF No. 353. Subsequently, Fine Furniture filed a consent motion for an order staying this case pending the final disposition of an appeal of the judgment of this Court in Changzhou Hawd Flooring Co., Ltd. v. United States , 42 CIT ––––, 324 F. Supp. 3d 1317 (2018). Pl. Fine Furniture (Shanghai) Limited's Consent Mot. to Stay (Mar. 11, 2019), ECF No. 361. The court granted this motion and stayed the action according to the terms of the consent motion. Order (Mar. 19, 2019), ECF No. 362.

The Changzhou Hawd litigation related to the...