947 F.3d 781
Fed. Cir.2020Background
- Commerce investigated antidumping of multilayered wood flooring from the People’s Republic of China; it individually investigated three largest exporters (all received zero dumping margins) and identified numerous non-individually investigated "separate-rate" firms, including some that requested voluntary individual review but were denied.
- On remand from this court, Commerce assigned a zero rate to the non‑individually investigated separate‑rate firms but announced it would keep those firms "subject to" the antidumping duty order (i.e., suspension of liquidation and annual‑review obligations) so duties could be assessed in later administrative reviews.
- The Trade Court affirmed Commerce’s inclusion of appellants (separate‑rate firms that did not seek individual review) but held Commerce had not adequately justified including voluntary‑review firms (those who sought but were denied individual review despite providing full questionnaire responses).
- The Federal Circuit reviewed Commerce’s determination under Chevron two‑step administrative law review and the substantial‑evidence standard and heard appeals and a cross‑appeal on those inclusion/exclusion rulings.
- The court affirmed the Trade Court: Commerce’s policy of treating exclusion as an extraordinary remedy and requiring individual investigation is a reasonable interpretation of the statute for non‑voluntary separate‑rate firms, but Commerce failed to justify including the voluntary‑review firms on the record before the court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether non‑individually investigated separate‑rate firms assigned a zero rate must be excluded from all obligations of an antidumping duty order | Appellants: a zero rate (derived from individually investigated firms) requires exclusion from the order under §1673d(a)(4) and the SAA | Commerce: statute is ambiguous; it may reasonably keep uninvestigated firms subject to the order to collect information and permit later reviews; exclusion should be "extraordinary" | Affirmed: statute ambiguous; Commerce’s interpretation reasonable and supported by regulation and policy; inclusion permissible |
| Whether firms that requested voluntary individual review and provided full questionnaire responses but were denied must be excluded | Voluntary‑review firms / cross‑appellees: having sought and furnished information, they should be treated like individually investigated firms and excluded when assigned zero rate | Commerce / Coalition: inclusion is lawful; no statutory bar to keeping them subject to order | Affirmed Trade Court reversal: Commerce did not adequately justify inclusion on this record; exclusion required unless Commerce provides a reasoned justification |
| Whether Commerce forfeited the right to oppose exclusion by not earlier taking a position | Appellants: Commerce failed to raise the exclusion argument earlier and therefore forfeited it | Commerce: issue was not ripe until remand and assignment of zero rates; no forfeiture | Held: Forfeiture rejected; Commerce had not previously needed to decide the exclusion issue |
Key Cases Cited
- Changzhou Hawd Flooring Co. v. United States, 848 F.3d 1006 (Fed. Cir. 2017) (prior remand directing reconsideration of separate‑rate treatment)
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (framework for reviewing agency statutory interpretation)
- City of Arlington v. FCC, 569 U.S. 290 (2013) (analysis of agency authority and deference scope)
- Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (standards for agency interpretation of ambiguous regulations)
- Albemarle Corp. & Subsidiaries v. United States, 821 F.3d 1345 (Fed. Cir. 2016) (methodology for computing all‑others/separate rates)
- Yangzhou Bestpak Gifts & Crafts Co. v. United States, 716 F.3d 1370 (Fed. Cir. 2013) (treatment of separate rates in nonmarket‑economy investigations)
- Nucor Corp. v. United States, 927 F.3d 1243 (Fed. Cir. 2019) (standard of review for Commerce determinations)
- Changzhou Wujin Fine Chemical Factory Co. v. United States, 701 F.3d 1367 (Fed. Cir. 2012) (agency must provide adequate justification for inclusion in order)