MARVIN FURNITURE (SHANGHAI) CO. LTD., Plaintiff, v. UNITED STATES, Defendant, and American Furniture Manufacturers Committee for Legal Trade and Vaughan-Bassett Furniture Company, Inc., Defendant-Intervenors.
Court No. 12-00100
United States Court of International Trade
Aug. 23, 2012
Slip Op. 12-109
TSOUCALAS, Senior Judge
Stuart F. Delery, Acting Assistant Attorney General; Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director, Civil Division, United States Department of Justice, Washington, DC, (Carrie A. Dunsmore); Shana Hofstetter, Of Counsel, Office of the Chief Counsel for Import Administration, United States Department of Commerce, for the United States, Defendant.
King & Spalding, LLP, (Joseph W. Dorn, J. Michael Taylor, and P. Lee Smith), Washington, DC, for American Furniture Manufacturers Committee for Legal Trade and Vaughan-Bassett Furniture Company, Inc., Defendant-Intervenors.
OPINION
TSOUCALAS, Senior Judge:
This matter comes before the Court upon the Motion for Judgment on the Agency Record filed herein by Plaintiff, Marvin Furniture (Shanghai) Co. Ltd. (“Marvin“). Marvin challenges the Department of Commerce‘s (“Commerce“) decision to rescind a new shipper review it had initiated of certain entries made by Marvin of wooden bedroom furniture. Marvin asserts that because it timely requested a new shipper review for which it was otherwise eligible, Commerce‘s rеscission was not supported by substantial evidence or in accord with the law. Defendant, United States and Defendant-Intervenors, American Furniture Manufacturers Committee for Legal Trade and Vaughan-Bassett Furniture Company, Inc. (collectively “AFMC“), argue that Marvin, in fact, did not meet the prеrequisites necessary for a new shipper review, and that Commerce‘s decision was therefore supported by substantial evidence and in accord with the law. The Court concludes that Commerce‘s rescission was supported by record evidence and a reasonаble application of the relevant statutory and regulatory provisions, and affirms the determination.
BACKGROUND
In 2005, the United States Department of Commerce (“Commerce“) issued an antidumping duty order on wooden bedroom furniture from the People‘s Republic of China (“PRC“). See Notice of Amеnded Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Wooden Bedroom Furniture from the People‘s Republic of China, 70 Fed. Reg. 329 (Jan. 4, 2005). Subsequent to the entry of this order, any party making entries of subject merchandise not assigned a special rate by Commerce was requirеd to deposit estimated duties at the PRC-wide rate of 216.01%.
Per routine practice, Commerce asked the United States Customs аnd Border Protection to confirm that Marvin had not made entries of subject merchandise prior to the date stated in the Initiation Request. This search turned up two entries of goods that had been made by Marvin in September 2010, and Commerce issued a letter soliciting comments from the pаrties regarding these entries. See Letter from Import Administration to All Interested Parties (Aug. 19, 2011), PR 14, CR 4. On August 24, 2011, Marvin responded to Commerce‘s letter stating that while it had made entries in September 2010, the entries were of non-subject merchandise. See Letter from Neville Peterson to the Secretary of Commerce, Re: Marvin Furniture (Shanghai) Co. Ltd.; CBP Data Comments: Wooden Bedroom Furniture from the People‘s Republic of China, New Shipper Review (Aug. 24, 2011), PR 16, CR 5. In reliance on Marvin‘s August 24, 2011 letter, a Commerce official signed the initiation notice the following day, August 25, 2011, and the notice was published 6 days later. Seе Wooden Bedroom Furniture from the People‘s Republic of China: Initiation of Antidumping Duty New Shipper Review, 76 Fed. Reg. 54,208 (Aug. 31, 2011).
Marvin subsequently filed responses to a questionnaire received from Commerce indicating for the first time that the September 2010 entries had, in fact, contained subject goods, but addеd that the goods were entered subject to a provision making them exempt from payment of antidumping duties. See Letter from Neville Peterson to the Secretary of Commerce, Re: Marvin Furniture (Shanghai) Co. Ltd. And Boori USA Inc.: Response to Supplemental Questionnaire; Wooden Bedroom Furniture from the People‘s Republic of China, Case Number: A570-890 (Aug. 26, 2011), PR 24, CR 10. Subsequent filings by Marvin confirmed that the first entry date contained in the Initiation Request was incorrect, but Marvin maintained that the date of its first entry of subject merchandise had not occurred more than a year prior to the filing of the Initiation Request.2 See, e.g., Letter from Neville
Despite Marvin‘s assertions that all of its entries were made within thе year prior to filing its Initiation Request, Commerce issued a preliminary rescission of the new shipper review, Wooden Bedroom Furniture From the People‘s Republic of China: Preliminary Rescission of Antidumping Duty New Shipper Review, 77 Fed. Reg. 1,456 (Jan. 10, 2012), and ultimately, a final rescission. Wooden Bedroom Furniture From the People‘s Republic of China: Final Rescission of Antidumping Duty New Shipper Review, 77 Fed. Reg. 21,536 (Apr. 10, 2012) (“Final Rescission“). As a basis for its decision to rescind the new shipper review of Marvin‘s entries, Commerce stated that it
continues to find that Marvin Furniture‘s request for an NSR does not meet the requirеments for [a new shipper review] under
19 CFR 351.214(b)(2)(iv)(A) and(B) . Specifically, Marvin Furniture‘s request for [a new shipper review] did not contain documentation establishing the date on which its subject merchandise was first entered into the United States for consumption and the volume of that first entry.
Final Rescission, 77 Fed. Reg. at 21,537-38.
On appeal, Marvin argues that it is entitled to a new shipper review because it complied with the statutory and regulatory requirements for eligibility. Marvin asserts that even if the information in its Initiation Request was incorrect, it quickly notified Commerce of the error. More importantly, Marvin relies on the absence in thе record of any evidence that it imported subject merchandise more than an year before making its Initiation Request. Marvin further asserts that Commerce‘s decision to rescind the new shipper review conflicts with the provisions of
The Government and AFMC counter that Commerce‘s decision to rescind the new shipper review was supported by the record evidence because, notwithstanding its communications with Commerce, Mаrvin never actually complied with the statutory and regulatory requirements for initiating a new shipper review. Specifically, they argue that Marvin‘s Initiation Request was infirm because it did not sufficiently notify Commerce of the correct first date its goods were entered, nor did Marvin ever properly document the nature of its September 2010 entries. The Government further argues that Commerce satisfied any relevant obligation it had under
JURISDICTION and STANDARD OF REVIEW
The Court has jurisdiction over this matter pursuant to
Additionally, when considering whether an agency determination is in accord with the law, the Court must sometimes consider the agency‘s interpretation of the law in question. That consideration is weighed under the guidelines set forth in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). The framework set forth in Chevron is well-established:
Under Chevron, the court first asks whether Congress has directly spoken to the precise question at issue; if so, the inquiry ends and the Court must give effect to the unambiguously expressed intent of Congress. If the statute is silent or ambiguous with respect to the issue, the court must аsk whether Commerce‘s interpretation is based on a permissible construction of the statute.
Sahaviriya Steel Indus. Pub. Co. Ltd. v. United States, 649 F.3d 1371, 1375 (Fed. Cir. 2011) (quotations omitted). Under this standard, “[s]tatutory interpretations articulated by Commerce during its antidumping proceedings are entitled to judicial deference ....” Id. at 1374. A reviewing court “must not substitute its own judgment for that of the agency even if the court might have preferred another interpretation and even if the agency‘s interpretation is not the only reasonable one.” Wheatland Tube Co. v. United States, 495 F.3d 1355, 1360-61 (Fed. Cir. 2007) (citation omitted).
ANALYSIS
The possibility for a new shipper review derives from
If the administering authority receives a request from an exporter or producer of the subject merchandise establishing that—
(I) such exporter or producer did not export the merchandise that was the subject of an antidumping duty or countervailing duty order to the United States ... during the period of investigation, and
(II) such exporter or producer is not affiliated (within the meaning of section 1677(33) of this title) with any exporter or producer who exported the subject merchandise to the United States ... during that period,
the administering authority shall conduct a review under this subsection to establish an individual weighted average dumping margin or an individual countervailing duty rate (as the case may be) for such exporter or producer.
In addition to this statutory baseline for new shipper review eligibility,
(A) The date on which subject merchandise of the exporter or producer making the request was first entered, or withdrawn from warehouse, for consumption, or, if the exporter or producer cannot establish the date of first entry, the date on which the exporter or producer first shipped the subject merchandise for export to the United States;
(B) The volume of that and subsequent shipments; and
(C) The date of the first sale to an unaffiliated customer in the United States.
Upon consideration of these statutory and regulatory provisions, it is clear that Marvin did not satisfy them in making its Initiation Request. The Initiation Request itself shows entries made only during June 2011. It later came to light that Marvin made entries of subject goods in September 2010, meaning that its Initiation Request was facially infirm under
Furthermore, contrary to Marvin‘s arguments, the documentation required in a new shipper request does not just establish that an exporter or producer is “new.” It also provides the basis upon which Commerce can undertake the review and calculate an individual antidumping rate. See
Additionally, the Court concludes that
Based on the foregoing, and upon the Marvin‘s Motion, the responses thereto, and all other pleadings and papers filed herein, it is hereby
ORDERED that the Motion for Judgment on the Agency Record filed herein by
TSOUCALAS
Senior Judge