324 F. Supp. 3d 1317
Ct. Intl. Trade2018Background
- Commerce conducted an antidumping investigation of multilayered wood flooring from the PRC for Apr. 1–Sep. 30, 2010, issued a final affirmative determination and order, and assigned a PRC‑wide rate to non‑cooperative exporters.
- Commerce selected two mandatory respondents (largest exporters) for individual examination; both ultimately received de minimis (zero) margins after court remands and were excluded from the order.
- Commerce calculated the separate (all‑others) rate by averaging the mandatory respondents’ margins (the “expected method”), producing a zero percent separate rate for non‑investigated separate‑rate respondents.
- Commerce did not individually examine most separate‑rate respondents and denied all requests for voluntary examination during the investigation.
- Plaintiffs (several separate‑rate companies and Lumber Liquidators) challenged Commerce’s refusal to exclude separate‑rate respondents assigned a zero all‑others rate and Lumber Liquidators also sought ab initio termination of the order.
- The court sustained Commerce’s denial of Lumber Liquidators’ request to terminate the order and its refusal to exclude separate‑rate respondents who did not seek voluntary examination, but held Commerce acted arbitrarily in denying exclusion to separate‑rate respondents who had requested voluntary examination (Voluntary Applicants) and ordered their exclusion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Commerce must exclude separate‑rate respondents assigned a zero/de minimis all‑others rate from an affirmative order | Zero all‑others rate must be disregarded and respondents excluded | Statute ambiguous or unambiguously allows Commerce not to exclude separate‑rate respondents assigned an all‑others zero rate | Court: Statute ambiguous; Commerce’s general rule of excluding only individually examined firms is a reasonable construction under Chevron step 2; no categorical requirement to exclude all separate‑rate respondents assigned zero |
| Whether Commerce should have terminated the order ab initio because individually examined respondents got de minimis margins | Lumber Liquidators: termination required because no evidence of dumping by examined respondents | Commerce: PRC‑wide entity policy and adverse facts available produce basis for affirmative determination; termination not required | Court: Denied ab initio termination; sustained Commerce (did not challenge PRC‑wide policy here) |
| Whether Commerce permissibly applied 19 C.F.R. § 351.204(e)(1) to deny exclusion to separate‑rate respondents who did not request voluntary examination | Separate‑rate respondents: exclusion required when assigned zero all‑others rate | Commerce: exclusion is an extraordinary remedy tied to individual examination; non‑applicants cannot claim exclusion | Court: Sustained Commerce’s denial for respondents that did not request voluntary examination |
| Whether Commerce arbitrarily denied exclusion to separate‑rate respondents who DID request voluntary examination but were refused individual examination | Voluntary Applicants: Commerce’s blanket refusal to entertain voluntary exams and then denying exclusion is arbitrary | Commerce: resource constraints justified refusing voluntary exams; separate‑rate respondents can still be denied exclusion absent individual examination | Court: Commerce’s refusal to examine voluntary applicants, then deny them exclusion despite assigning a representative zero rate was arbitrary; ordered their exclusion ab initio |
Key Cases Cited
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) (framework for reviewing agency statutory interpretation)
- United States v. Eurodif S.A., 555 U.S. 305 (2009) (deference to agency interpretation absent unambiguous statutory language)
- Nippon Steel Corp. v. United States, 458 F.3d 1345 (Fed. Cir. 2006) (substantial‑evidence review of Commerce determinations)
- DuPont Teijin Films USA v. United States, 407 F.3d 1211 (Fed. Cir. 2005) (definition and application of substantial evidence standard)
- Consolo v. Federal Maritime Commission, 383 U.S. 607 (1966) (substantial evidence acknowledges possibility of inconsistent conclusions)
- Wheatland Tube Co. v. United States, 495 F.3d 1355 (Fed. Cir. 2007) (reviewing reasonableness of Commerce interpretations using statutory text and antidumping objectives)