Fine Furniture (Shanghai) Ltd. v. United States
2012 WL 3764926
Ct. Intl. Trade2012Background
- Consolidated action challenging the Commerce Department’s Final Determination in the countervailing duty investigation of multilayered wood flooring from China.
- Commerce used adverse facts available (AFA) to set the LTAR electricity benchmark due to China’s failure to provide provincial price proposals.
- Basic Electricity Tariff (BET) was included in LTAR calculation without prior notice or comment.
- Shanghai Eswell Enterprise Co. and Elegant Living Corporation were placed on the non-cooperating list for AFA; Times Flooring was later removed.
- The court affirmed most aspects of Commerce’s approach, but remanded to reconsider or explain the inclusion of Eswell Enterprise and Elegant Living on the AFA list.
- The court ordered remand for reconsideration and issued deadlines for remand redetermination and comments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether AFA in LTAR benchmark was proper. | Fine Furniture contends AFA against GOC was impermissible collateral to Fine Furniture. | Commerce appropriately used AFA against the non-cooperating GOC; collateral effect on Fine Furniture is permissible. | Affirmed the use of AFA for the LTAR benchmark. |
| Whether BET inclusion was proper given notice requirements. | BET should not have been included without notice or separate investigation. | BET is a component of the LTAR subsidy; inclusion was a correction of an oversight. | Harmless error; affirmed BET inclusion but did not remand for BET alone. |
| Whether Eswell Enterprise and Elegant Living were properly kept on the AFA list. | Evidence shows Elegant Living may be misidentified and Eswell Enterprise affiliate; they should not be on AFA list. | AFA list based on cooperation failures; record supported inclusion. | Remanded to reconsider or provide further explanation for their inclusion. |
Key Cases Cited
- Universal Camera Corp. v. NLRB, 340 U.S. 474 (U.S. 1951) (substantial evidence standard governs agency findings)
- NTN Bearing Corp. v. United States, 74 F.3d 1204 (Fed. Cir. 1995) (abuse of discretion in late submissions and correction of errors)
- Timken U.S. Corp. v. United States, 434 F.3d 1345 (Fed. Cir. 2006) (balancing accuracy and finality in correction of errors before final results)
- Inland Steel Indus., Inc. v. United States, 188 F.3d 1349 (Fed. Cir. 1999) (finality vs. accuracy when evaluating agency discretion)
- Reiner Brach GmbH & Co.KG v. United States, 26 CIT 549 (CIT 2002) (abuse of discretion for rejecting untimely information; cooperation standard)
- Globe Metallurgical, Inc. v. United States, 29 CIT 867 (CIT 2005) (substantial evidence review of agency action)