Marvin Furniture (Shanghai) Co. Ltd. v. United States

Slip Op. 12-
UNITED STATES COURT OF INTERNATIONAL TRADE
Before: Nicholas Tsoucalas, Senior Judge
___________________________________
MARVIN FURNITURE (SHANGHAI) CO. 	:
LTD., 	:
:
Plaintiff, 	:
:
v. 	: 	Court No.: 12-00100
:
UNITED STATES, 	:
:
Defendant, 	:
:
and 	:
:
AMERICAN FURNITURE MANUFACTURERS 	:
COMMITTEE FOR LEGAL TRADE and 	:
VAUGHAN-BASSETT FURNITURE 	:
COMPANY, INC., 	:
:
Defendant-Intervenors. 	:
:
OPINION
Held: The Department of Commerce’s decision to rescind a new shipper
review is affirmed.
Dated: August 23, 2012
Neville Peterson, LLP, (John M. Peterson and Richard F. O’Neill)
for Marvin Furniture (Shanghai) Co. Ltd., Plaintiff.
Stuart F. Delery, Acting Assistant Attorney General; Jeanne E.
Davidson, Director, Patricia M. McCarthy, Assistant Director, Civil
Division, United States Department of Justice, (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) for American Furniture Manufacturers Committee for Legal
Trade 	and 	Vaughan-Bassett 	Furniture 	Company, 	Inc., 	Defendant-
Intervenors.
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Court No. 12-00100 	Page 2
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 	rescission 	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 prerequisites
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 	reasonable 	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 	Amended 	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
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order, any party making entries of subject merchandise not assigned
a special rate by Commerce was required to deposit estimated duties
at the PRC-wide rate of 216.01%.
Marvin manufactures wooden furniture in the PRC, and is owned by
a party who also owns an Australian company named Boori International
Pty. Ltd. (“Boori Int’l”). 	Boori Int’l distributes a line of high-
end 	juvenile 	furniture 	that 	is 	popular 	in 	Australia, 	the 	United
Kingdom, 	Ireland, 	and 	several 	other 	countries. 	In 	order 	to 	begin
selling goods in the United States, the owner established Boori USA,
LLC, 	and 	made 	entries 	of 	wooden 	bedroom 	furniture 	into 	the 	United
States 	on 	June 	20, 	2011. 	Upon 	making 	these 	entries, 	Boori 	USA
discovered that it was required to make antidumping duty deposits at
the PRC-wide rate of 216.01%. 	In an attempt to obtain a lower rate,
Marvin requested that Commerce initiate a new shipper review of its
entries. 	See 	Letter 	from 	Neville 	Peterson 	to 	the 	Secretary 	of
Commerce, 	Re: 	Request 	for 	Initiation 	of 	Antidumping 	New 	Shipper
Review: Wooden Bedroom Furniture from the People’s Republic of China,
Case Number: A570-890 (July 30, 2011) (“Initiation Request”), Public
Rec. 	1, 	Confidential 	Rec. 	1. 1 	In 	the 	Initiation 	Request, 	Marvin
indicated that it had not exported subject merchandise to the United
States prior to June 2011. 	Initiation Request, Ex. D.
Per routine practice, Commerce asked the United States Customs
1 Hereinafter all documents in the public record will be
designated “PR” and all documents in the confidential record
designated “CR.”
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Court No. 12-00100 	Page 4
and 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 	parties 	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. 	See
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 	added 	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.
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Court No. 12-00100 	Page 5
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 	Peterson 	to 	the 	Secretary 	of 	Commerce, 	Re: 	Marvin
Furniture (Shanghai) Co. Ltd. And Boori USA Inc.: Further Response to
Supplemental 	Questionnaire: 	Wooden 	Bedroom 	Furniture 	from 	the
People’s Republic of China (Aug. 31, 2011), PR 29, CR 13.
Despite 	Marvin’s 	assertions 	that 	all 	of 	its 	entries 	were 	made
within 	the 	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
2 The Court notes that neither the Government nor AFMC point
to evidence in the record indicating that Marvin did import
subject merchandise into the United States more than a year
before filing its Initiation Request. 	The fact that all of
Marvin’s entries were made within a year prior to the filing of
the Initiation Request is therefore not in dispute.
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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 	requirements 	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 the 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 Section 782 of the
Tariff Act of 1930, as amended, 19 U.S.C. § 1677m 3, which allows for
the correction of erroneous information submitted to Commerce.
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, 	Marvin
never 	actually 	complied 	with 	the 	statutory 	and 	regulatory
3 All further citations to the Tariff Act of 1930 are to the
relevant provisions of Title 19 of the United States Code, 2006
edition.
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Court No. 12-00100 	Page 7
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 § 1677m.
JURISDICTION and STANDARD OF REVIEW
The 	Court 	has 	jurisdiction 	over 	this 	matter 	pursuant 	to 	28
U.S.C. 	§ 	1581(c) 	and 	19 	U.S.C. 	§ 	1516a(a)(2)(B)(iii). 	The 	Court
will only disturb Commerce’s determination if it is “unsupported by
substantial evidence or otherwise not in accordance with law.” 	19
U.S.C. § 1516a(b)(1)(B)(i). 	Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.” Huaiyin Foreign Trade Corp. (30) v. United States, 322
F.3d 	1369, 	1374 	(Fed. 	Cir. 	2003) 	(quoting 	Consol. 	Edison 	Co. 	v.
NLRB, 305 U.S. 197, 229 (1938)). 	It is important to note that when
such relevant evidence is present, the Court must always affirm the
agency determination as long as the determination is in accord with
the 	law. 	Where 	two 	different 	conclusions 	are 	supported 	by 	the
evidence, the Court may not prefer its own to that of the agency.
See 	Matsushita 	Elec. 	Indus. 	Co., 	Ltd. 	v. 	United 	States, 	750 	F.2d
927, 933 (Fed. Cir. 1984).
Additionally, when considering whether an agency determination
is 	in 	accord 	with 	the 	law, 	the 	Court 	must 	sometimes 	consider 	the
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Court No. 12-00100 	Page 8
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 ask 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 	19
U.S.C. § 1675:
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 . . .
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Court No. 12-00100 	Page 9
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.
19 U.S.C. § 1675(a)(2)(B)(i). 	The purpose of a new shipper review
is to provide an opportunity to an exporter or producer who may be
entitled 	to 	an 	individual 	antidumping 	rate, 	but 	was 	not 	active
during 	the 	investigation, 	to 	be 	considered 	for 	such 	a 	rate. 	See
Jining 	Yongjia 	Trade 	Co., 	Ltd. 	v. 	United 	States, 	34 	CIT 	__, 	__,
Slip Op. 10-134 at 3 (Dec. 16, 2010).
In addition to this statutory baseline for new shipper review
eligibility, 19 C.F.R. § 351.214 sets forth additional requirements
for the contents of an initiation request. 	First, the exporter or
producer must certify that it meets that provisions of 19 U.S.C. §
1675(a)(2)(B)(i). 	See 	19 	C.F.R. 	§ 	351.214(b)(2)(i)-(iii). 	The
party making the request must also file documentation establishing
(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.
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Court No. 12-00100 	Page 10
19 	C.F.R. 	§ 	351.214(b)(2)(iv)(A)-(C). 	Finally, 	the 	regulations
state that an exporter or producer may request a new shipper review
within 	one 	year 	of 	the 	date 	on 	which 	they 	first 	entered 	subject
merchandise. 	19 C.F.R. § 351.214(c).
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 19 C.F.R. §
351.214(b)(2)(iv)(A) and (B), which requires documentation of the
date on which subject goods were first entered, and the volume of
that and subsequent shipments. 	While the parties disagree on the
effectiveness 	of 	Marvin’s 	attempted 	rehabilitation 	of 	its
Initiation 	Request, 	there 	can 	be 	no 	dispute 	that 	the 	proceedings
began 	with 	a 	document 	that 	falls 	short 	of 	compliance 	with 	the
relevant regulations. 	This infirmity presents a serious hurdle for
Marvin given the deference owed by this court to agency decisions
because 	Marvin, 	in 	essence, 	asks 	the 	Court 	to 	conclude 	that
Commerce 	erred 	in 	applying 	the 	express 	provisions 	of 	its
regulations. 4
Furthermore, contrary to Marvin’s arguments, the documentation
required in a new shipper request does not just establish that an
4 It is worth noting here that in its Reply supporting the
instant Motion, Marvin makes clear that it is not challenging the
validity of any part of 19 C.F.R. § 351.214.
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Court No. 12-00100 	Page 11
exporter 	or 	producer 	is 	“new.” 	It 	also 	provides 	the 	basis 	upon
which Commerce can undertake the review and calculate an individual
antidumping 	rate. 	See 	19 	C.F.R. 	§ 	351.214(b)(2)(iv)(B); 	Def.’s
Resp. 	to 	Pl.’s 	Rule 	56.2 	Mot. 	at 	11; 	see 	generally, 	19 	U.S.C. 	§
1675. 	If 	a 	new 	shipper 	request 	does 	not 	provide 	Commerce 	with
accurate information regarding an exporter or producer’s entries,
the agency is unable to engage in these calculations.
Additionally, 	the 	Court 	concludes 	that 	19 	U.S.C. 	§ 	1677m 	is
inapplicable 	here. 	While 	its 	provisions 	do 	allow 	for 	a 	party 	to
correct infirm filings, it applies to insufficient information that
was 	submitted 	in 	“response 	to 	a 	request 	for 	information.” 	19
U.S.C. § 1677m(d). 	Here, Marvin’s Initiation Request was not filed
in response to a request for information made by Commerce. 	Of its
own accord, Marvin sought a new shipper review after compiling the
information 	and 	documentation 	it 	believed 	necessary. 	The 	Court
will 	not 	disturb 	Commerce’s 	rescission 	of 	the 	new 	shipper 	review
where, as here, the rescission was based on an application of the
express 	provisions 	of 	the 	relevant 	statutes 	and 	regulations 	to
facts that are undisputed in all material respects.
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
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Court No. 12-00100 	Page 12
filed herein by Marvin Furniture (Shanghai) Co. Ltd. is denied.
/s/ NICHOLAS TSOUCALAS
Nicholas Tsoucalas
Senior Judge
Dated: August 23, 2012
New York, New York
Case 1:12-cv-00100-NT Document 74 Filed 08/23/12 Page 12 of 13

Slip Op. 12-
UNITED STATES COURT OF INTERNATIONAL TRADE
Before: Nicholas Tsoucalas, Senior Judge
___________________________________
MARVIN FURNITURE (SHANGHAI) CO. 	:
LTD., 	:
:
Plaintiff, 	:
:
v. 	: 	Court No.: 12-00100
:
UNITED STATES, 	:
:
Defendant, 	:
:
and 	:
:
AMERICAN FURNITURE MANUFACTURERS 	:
COMMITTEE FOR LEGAL TRADE and 	:
VAUGHAN-BASSETT FURNITURE 	:
COMPANY, INC., 	:
:
Defendant-Intervenors. 	:
:
JUDGMENT
This 	case 	having 	been 	duly 	submitted 	for 	decision 	and 	the
Court, after due deliberation, having rendered a decision herein,
now, in accordance with said decision, it is hereby
ORDERED 	that 	the 	Motion 	for 	Judgment 	on 	the 	Agency 	Record
filed herein by Marvin Furniture (Shanghai) Co. Ltd. is denied; and
it is further
ORDERED that this matter is dismissed.
/s/ NICHOLAS TSOUCALAS
Nicholas Tsoucalas
Senior Judge
Dated: August 23, 2012
New York, New York
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