Am. Mfrs. of Multilayered Wood Flooring v. United States

Slip Op. 24-13 UNITED STATES COURT OF INTERNATIONAL TRADE Court No. 21-00595 AMERICAN MANUFACTURERS OF MULTILAYERED WOOD FLOORING, Plaintiff, v. UNITED STATES, Defendant, and JIANGSU GUYU INTERNATIONAL TRADING CO., LTD., et al., Defendant-Intervenors.

Before: M. Miller Baker, Judge OPINION [The court sustains the Department of Commerce’s re- mand redetermination.]

Dated: February 8, 2024 Mark Ludwikowski, Kelsey Christensen, and Sally Al- ghazali, Clark Hill PLC of Washington, DC, on the comments for Defendant-Intervenors.

Brian M. Boynton, Principal Deputy Assistant Attor- ney General; Patricia M. McCarthy, Director; Tara K.

Ct. No. 21-00595 Page 2 Hogan, Assistant Director; and Brendan Jordan, Trial Attorney, Commercial Litigation Branch, Civil Divi- sion, U.S. Department of Justice of Washington, DC, on the comments for Defendant. Of counsel on the com- ments was Alexander Fried, Office of the Chief Coun- sel for Trade Enforcement and Compliance, U.S. De- partment of Commerce of Washington, DC.

Timothy C. Brightbill, Maureen E. Thorson, Stephanie M. Bell, Tessa V. Capeloto, and Theodore P. Brackemyre, Wiley Rein LLP of Washington, DC, on the comments for Plaintiff.

Baker, Judge: This matter returns following a re- mand for the Department of Commerce to reconsider its determination that a mandatory respondent in an administrative review of an antidumping order on Chi- nese wood flooring was ineligible for a separate rate. If the company were so eligible, Commerce then would have to recalculate the duty for separate-rate produc- ers not selected as respondents.

On remand, Commerce concluded under protest that the mandatory respondent is eligible and accord- ingly recalculated the margin for non-investigated separate-rate companies. Finding that determination supported by substantial evidence, the court sustains it.

I This case involves the 2018–2019 review of an an- tidumping order on multilayered wood flooring from Ct. No. 21-00595 Page 3 China. 1 In the preceding review, Commerce found that the Fusong Jinlong Group (Jinlong) had shown inde- pendence from the Chinese government and was therefore eligible for a separate rate. See Multilayered Wood Flooring from the People’s Republic of China: Fi- nal Results of Antidumping Duty Administrative Re- view and New Shipper Review and Final Determina- tion of No Shipments: 2017–2018, 85 Fed. Reg. 78,118, 78,119 (Dep’t Commerce Dec. 3, 2020).

When the Department opened the review at issue here, it stated that companies “selected as mandatory respondents . . . will no longer be eligible for separate rate status unless they respond” to a questionnaire.

Initiation of Antidumping and Countervailing Duty Administrative Reviews, 85 Fed. Reg. 6896, 6897 (Dep’t Commerce Feb. 6, 2020), Appx1156.

Jinlong filed a “certification”—essentially, a form allowing for a streamlined renewal of its separate rate.

Appx1075. The Department then selected it as a man- datory respondent and issued a questionnaire. In April 2020, the company advised that it was “unable to re- spond . . . for reasons associated with the ongoing COVID-19 health crisis.” Appx1268.

Ct. No. 21-00595 Page 4 Commerce denied the company’s certification be- cause of this failure. Appx1055–1056. 2 As a result, the Department calculated the separate rate for non-in- vestigated entities based entirely on the zero percent duty assigned to the other mandatory respondent (which did receive a separate rate). Appx1057–1058. 3 A group of domestic wood flooring producers then brought this suit challenging the Department’s denial of Jinlong’s certification and, relatedly, the calculation Jinlong instead received the 85.13 percent China-wide rate that applies by default to producers not eligible for a separate rate. Appx1013–1014.

Ct. No. 21-00595 Page 5 method used for the non-investigated separate-rate companies. If Jinlong were certified, its duty—if greater than zero—would have the domino effect of raising the separate-rate companies’ margins. In ef- fect, the battle over Jinlong’s eligibility is a proxy war waged by the domestic producers against non-investi- gated Chinese producers eligible for a separate rate, several of whom intervened to defend Commerce’s de- cision. 4 Following briefing and argument, the court found from the bench that the Department’s denial of Jinlong’s certification was unlawful. ECF 52, at 32:5– 33:22 (transcript). “This is, by [the court’s] lights, ar- bitrary and capricious under the [Administrative Pro- cedure Act] because Commerce is treating similarly situated [entities 5] differently” and because the De- partment failed to address the company’s separate- rate certification on the merits. Id. at 33:13–18. “Ra- ther[,] Commerce viewed it as inadequate . . . solely because [the company] had the bad luck to be chosen as [a] mandatory respondent and regardless of whether the certification would have been adequate had the company not been so chosen.” Id. at 33:18–22.

The court expressed concern that certification was suf- ficient for some companies but not for others: “Without a rational explanation, the [c]ourt cannot sustain Commerce’s determination here.” Id. at 34:3–9.

Ct. No. 21-00595 Page 6 II On remand, the Department reevaluated Jinlong’s separate-rate eligibility under protest, 6 found it so eli- gible, and set a duty based on facts otherwise available with an adverse inference. Appx1300. 7 Commerce as- signed the company a margin of 85.13 percent, the highest calculated rate for any respondent from a com- pleted segment of the proceeding. Appx1307. 8 The Department then had to calculate a margin for the companies that received separate rates without be- ing individually investigated. The problem was that of the two mandatory respondents, one received a zero duty and the other (Jinlong) received a rate based en- tirely on facts otherwise available. Commerce noted that in such a circumstance, the statute allows it to “use any reasonable method . . . , including averaging the estimated weighted dumping margins determined for the exporters and producers individually in- “[W]hen Commerce advocates a position zealously and must abandon that position in order to comply with a rul- ing of the U.S. Court of International Trade, Commerce preserves its right to appeal if it adopts a complying posi- tion under protest.” Saha Thai Steel Pipe Pub. Co. v. United States, 583 F. Supp. 3d 1350, 1353 (CIT 2021) (cit- ing Viraj Grp., Ltd. v. United States, 343 F.3d 1371, 1376 (Fed. Cir. 2003)).

Ct. No. 21-00595 Page 7 vestigated.” Appx1308–1309 (quoting 19 U.S.C. § 1673d(c)(5)(B)). The Department added that the Statement of Administrative Action accompanying the Uruguay Round Agreements Act (SAA) 9 states that the “expected method” in such cases “will be to weight- average” the zero, de minimis, and facts-otherwise- available margins, “provided that volume data is available.” Appx1309 (quoting SAA, H.R. Doc. 103– 316, vol. 1, at 873, 1994 U.S.C.C.A.N. 4040, 4201). If the “expected method” is not feasible, or results in a figure that is not reasonably reflective of potential dumping margins for non-investigated companies, the SAA allows the use of “other reasonable methods.”

SAA, H.R. Doc. 103–316, vol. 1, at 873, 1994 U.S.C.C.A.N. at 4201.

Because Jinlong did not answer the questionnaire, Commerce could not calculate a weighted average of the two rates. Appx1309. It therefore assigned the sim- ple average—42.57 percent—as the separate rate for all eligible non-examined producers. Id. In this litigation round, the private litigants have traded places. The domestic producers, who opposed the original determination, support the remand re-

Comm. Overseeing Action for Lumber Int’l Trade Investiga- tions or Negots. v. United States, 66 F.4th 968, 972 (Fed. Cir. 2023) (quoting 19 U.S.C. § 3512(d)).

Ct. No. 21-00595 Page 8 sults, while Defendant-Intervenors, who supported that determination, now oppose them.

III The domestic producers brought this suit under 19 U.S.C. § 1516a(a)(2)(A)(i)(I) and (B)(iii). Subject-mat- ter jurisdiction is conferred by 28 U.S.C. § 1581(c).

The standard of review for a remand redetermina- tion is the same as that on previous review. Bethlehem Steel Corp. v. United States, 223 F. Supp. 2d 1372, 1375 (CIT 2002). In § 1516a(a)(2) actions, “[t]he court shall hold unlawful any determination, finding, or con- clusion found . . . to be unsupported by substantial ev- idence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). That is, the question is not whether the court would have reached the same decision on the same record—rather, it is whether the administrative record as a whole permits Commerce’s conclusion.

Substantial evidence has been defined as more than a mere scintilla, as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. To determine if substan- tial evidence exists, we review the record as a whole, including evidence that supports as well as evidence that fairly detracts from the sub- stantiality of the evidence.

Nippon Steel Corp. v. United States, 337 F.3d 1373, 1379 (Fed. Cir. 2003) (cleaned up).

Ct. No. 21-00595 Page 9 IV Defendant-Intervenors argue that Commerce did not act arbitrarily and capriciously in the first in- stance by denying Jinlong a separate rate. ECF 65, at 5–6. The court, however, declines to reconsider its prior ruling to the contrary.

Defendant-Intervenors do not challenge the De- partment’s decision to accept the company’s certifica- tion on its own merits. They instead argue that even if Commerce properly assigned Jinlong a separate rate, the agency improperly calculated their margins by av- eraging the company’s rate with the other mandatory respondent’s. Id. at 7. Despite raising several theoret- ical policy concerns, id. at 8–10, they fail to address Congress’s mandate (in the market-economy context) that Commerce apply the methodology used here 10 where all mandatory respondents eligible for a sepa- rate rate receive duties that are zero, de minimis, or based entirely on facts otherwise available. See above note 3. Defendant-Intervenors thus “cannot contend that methodology employing [such] margins is disfa- Commerce’s only deviation from the “expected method” was that it used the simple average, rather than the weighted average, of the two rates assigned to the manda- tory respondents. Appx1309. The Department explained that it did so because the lack of sales quantity and value data from Jinlong made calculating a weighted average im- possible. Id. The SAA envisions this possibility by condi- tioning use of the “expected method” on whether “volume data is available.” H.R. Doc. 103–316, vol. 1, at 873, 1994 U.S.C.C.A.N. at 4201. Commerce’s reasoning therefore suf- fices to explain why the use of a simple average is a “rea- sonable method.”

Ct. No. 21-00595 Page 10 vored when Congress has unmistakably explained that it is, in fact, preferred.” Albemarle Corp. v. United States, 821 F.3d 1345, 1354 (Fed. Cir. 2016). 11 As Plaintiffs explain, “While Intervenors argue that it was inherently unfair for Commerce to rely in part on an adverse rate in determining the non-examined com- panies’ margins, such a position cannot be squared with Congress’s expressed expectation that [the De- partment] do just that.” ECF 66, at 6.

The government correctly observes that Defendant- Intervenors make “no arguments outside of critiquing the expected method itself.” ECF 67, at 14. In that re- spect, their avenue for relief lies with Congress, not with this court. See Wyeth v. Kappos, 591 F.3d 1364, 1370 (Fed. Cir. 2010) (“[T]his court does not take upon itself the role of correcting all statutory inequities, even if it could. In the end, the law has put a policy in effect that this court must enforce, not criticize or cor- rect.”).

Ct. No. 21-00595 Page 11 * * * For the reasons outlined above, the court sustains Commerce’s redetermination. A separate judgment will issue. See USCIT R. 58(a).

Dated: February 8, 2024 /s/ M. Miller Baker New York, NY Judge