Slip Op. 10-34
UNITED STATES COURT OF INTERNATIONAL TRADE
FUJIAN LIANFU FORESTRY CO., LTD.,
A.K.A. FUJIAN WONDER PACIFIC INC.,
FUZHOU HUAN MEI FURNITURE CO.,
LTD., AND JIANGSU DARE FURNITURE
CO., LTD.,
Before: Leo M. Gordon, Judge
Plaintiffs,
Consol. Court No. 07-00306
v.
UNITED STATES,
Defendant.
OPINION
[Final remand results sustained.]
Dated: April 5, 2010
Arent Fox LLP (Nancy A. Noonan, Matthew L. Kanna) for Plaintiffs Fujian Lianfu
Forestry Co., Ltd., a.k.a. Fujian Wonder Pacific Inc., Fuzhou Huan Mei Furniture Co.,
Ltd., and Jiangsu Dare Furniture Co., Ltd.
Steptoe & Johnson LLP (Thomas J. Trendl, Jamie B. Beaber) for Plaintiffs
Starcorp Furniture Co., Ltd., Starcorp Furniture (Shanghai) Co., Ltd., Orin Furniture
(Shanghai) Co., Ltd., Shanghai Star Furniture Co. Ltd., and Shanghai Xing Ding
Furniture Industrial Co., Ltd.
Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice (Brian A. Mizoguchi, Senior Trial Attorney); and Office of
Chief Counsel for Import Administration, U.S. Department of Commerce
(Rachel E. Wenthold), of counsel, for Defendant United States.
King & Spalding LLP (J. Michael Taylor, Jeffrey M. Telep, Joseph W. Dorn,
Stephen A. Jones) for Defendant-Intervenor American Furniture Manufacturers
Committee for Legal Trade and Vaughn-Bassett Furniture Co. Inc.
Gordon, Judge: Before the court are the Final Results of Redetermination
Pursuant to Court Remand (Dec. 14, 2009) (“Remand Results”) filed by the
Consol. Court No. 07-00306 Page 2
U.S. Department of Commerce (“Commerce”) pursuant to Fujian Lianfu Forestry Co. v.
United States, 33 CIT __, 638 F. Supp. 2d 1325 (2009). Plaintiffs Starcorp Furniture
Company Ltd., Starcorp Furniture (Shanghai) Co., Ltd., Orin Furniture (Shanghai) Co.,
Ltd., Shanghai Star Furniture Co., Ltd., and Shanghai Xing Ding Furniture Industrial Co.,
Ltd. (collectively “Starcorp”) challenge the Remand Results. Familiarity with the court’s
decision in Fujian is presumed.
Background
This case involves challenges to the first administrative review (2004-2005) of
the antidumping duty order covering wooden bedroom furniture from China. During the
administrative proceeding Commerce assigned Starcorp a total adverse facts available
(“AFA”) rate of 216.01 percent, which Starcorp challenged. The court sustained
Commerce’s use of total AFA, but remanded the case to Commerce because
Commerce had failed to corroborate the rate by tying it to Starcorp (or explaining why it
was not practicable to do so). Fujian, 33 CIT at ___, 638 F. Supp. 2d at 1337.
On remand Commerce tied the rate to Starcorp by comparing it to model-specific
margins calculated for Starcorp during the investigation, the prior segment of the
proceeding. Commerce examined the program output used to calculate Starcorp’s
weighted average dumping margin in the investigation, and found that the AFA rate fell
within the range of Starcorp’s model-specific margins. Remand Results at 7; see also
Remand Results, Confid. Attach. 2, at 10.
Consol. Court No. 07-00306 Page 3
Standard of Review
For administrative reviews of antidumping duty orders, the court sustains
determinations, findings, or conclusions of the U.S. Department of Commerce unless
they are “unsupported by substantial evidence on the record, or otherwise not in
accordance with law.” Section 516A(b)(1)(B)(i) of the Tariff Act of 1930, as amended,
19 U.S.C. § 1516a(b)(1)(B)(i) (2006).1
Discussion
Starcorp argues that the Starcorp model-specific margins on which Commerce
relied are “aberrant” outliers because they are much higher than the overall average
margin Starcorp received when it was treated as a cooperative respondent
(15.78 percent). See Comments of Starcorp on Final Remand Redetermination
(Jan. 27, 2010) (“Starcorp Cmts.”) at 7-12. Starcorp also argues, for basically the same
reason, that the rate is “punitive.” Id. at 12. The United States Court of Appeals for the
Federal Circuit has on two occasions, however, sustained Commerce’s corroboration of
a total AFA rate based on a small number of individual transactions, regardless of
whether such transactions represent a small percentage of respondent’s sales. See
Ta Chen Stainless Steel Pipe, Inc. v. United States, 298 F.3d 1330, 1339-40
(Fed. Cir. 2002) (sustaining corroboration of AFA rate based on the margin of a single
sale calculated for the uncooperative respondent that represented just .04 percent of
total sales); PAM, S.p.A. v. United States, 582 F.3d 1336, 1340 (Fed. Cir. 2009)
(sustaining corroboration of AFA rate based on transactions representing .05 percent of
1
Further citations to the Tariff Act of 1930, as amended, are to the relevant provisions
of Title 19 of the U.S. Code, 2006 edition.
Consol. Court No. 07-00306 Page 4
sales). Commerce’s corroboration of Starcorp’s rate is consistent with the approach
sustained in Ta Chen and PAM. The 216.01 percent total AFA rate falls within the
range of, and ties to, Starcorp’s actual margins, and therefore must be sustained.
Starcorp also contends that Commerce’s reliance on data from the investigation
is unlawful because the data was not included in the first review administrative record.
See Starcorp Cmts. at 3-6. Commerce, however, properly relied upon Starcorp’s record
data from the prior proceeding, enabling Commerce to comply with the court’s remand
instructions to tie the selected rate to Starcorp. The antidumping statute requires
Commerce to corroborate, if practicable, a total AFA rate, from “independent sources
that are reasonably at [Commerce’s] disposal.]” 19 U.S.C. § 1677e(c). As this was the
first administrative review under the antidumping duty order, the recently completed less
than fair value investigation provided an obvious source of independent corroborating
information for Commerce to tie its chosen proxy to Starcorp.
There is no bar, statutory or otherwise, to Commerce accessing and using that
information on remand even though it was not originally part of the administrative record
for the final results. In PAM, for example, the Federal Circuit reviewed and approved
Commerce’s corroboration efforts that involved reliance upon data from earlier
proceedings that Commerce first accessed and used on remand from the Court of
International Trade. PAM, 582 F.3d 1336, 1338, 1340 & n.2 (“On remand, Commerce
used PAM’s databases from the fourth administrative review – in which PAM was also a
respondent – and found the 45.49% AFA margin it had assessed in the sixth
Consol. Court No. 07-00306 Page 5
administrative review was corroborated by United States sales in the fourth review with
margins in excess of 45.49%.”).
During the remand proceedings here, Starcorp was provided the opportunity to
review and comment on the Starcorp margin data upon which Commerce relied.
Specifically, Commerce released the margin output in both hard copy (paper) and
electronic form to the parties. Non Pub. Remand Record, Docs. 1-3. Prior to submitting
comments on the draft remand results, Starcorp alerted Commerce to certain
discrepancies in the electronic data release. Pub. Remand Record, Doc. 5. Prior to the
submission of its final remand results, Commerce responded to Starcorp’s concerns
about the data relied upon, re-released the electronic output, and provided Starcorp
additional comment time. Pub. Remand Record, Docs. 6 and 7;
see also Remand Results at n.1. Starcorp does not contest the accuracy of the
Starcorp model-specific margin calculations upon which Commerce’s remand results
rely. Nor does Starcorp deny that the program output relied upon was based upon its
own sales data from the investigation. Thus, the court is not persuaded that the remand
process and Commerce’s augmentation of the administrative record with corroborating
information was in any way unreasonable.
Consol. Court No. 07-00306 Page 6
CONCLUSION
Commerce’s Remand Results comply with the court’s remand order, are
supported by substantial evidence, and otherwise in accordance with law. Accordingly,
the court sustains Commerce’s Remand Results and will enter judgment for the United
States.
/s/ Leo M. Gordon
Judge Leo M. Gordon
Dated: April 5, 2010
New York, New York