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Changzhou Hawd Flooring Co. Ltd. v. United States

United States Court of Appeals, Federal Circuit

February 15, 2017

CHANGZHOU HAWD FLOORING CO., LTD., DUNHUA CITY JISEN WOOD INDUSTRY CO., LTD., DUNHUA CITY DEXIN WOOD INDUSTRY CO., LTD., DALIAN HUILONG WOODEN PRODUCTS CO., LTD., KUNSHAN YINGYI-NATURE WOOD INDUSTRY CO., LTD., KARLY WOOD PRODUCT LIMITED, FINE FURNITURE (SHANGHAI) LIMITED, LUMBER LIQUIDATORS SERVICES, LLC, ARMSTRONG WOOD PRODUCTS (KUNSHAN) CO., LTD., Plaintiffs-Appellants
v.
UNITED STATES, THE COALITION FOR AMERICAN HARDWOOD PARITY, Defendants-Appellees HOME LEGEND, LLC, Plaintiff

         Appeals from the United States Court of International Trade in No. 1:12-cv-00020-DCP, Judge Donald C. Pogue.

          Jeffrey S. Grimson, Mowry & Grimson, PLLC, Washington, DC, argued for all plaintiffs-appellants. Plaintiff-appellant Fine Furniture (Shanghai) Limited also represented by Kristin Heim Mowry, Jill A. Cramer, Sarah M. Wyss.

          Gregory S. Menegaz, DeKieffer & Horgan, PLLC, Washington, DC, for plaintiffs-appellants Changzhou Hawd Flooring Co., Ltd., Dunhua City Jisen Wood Industry Co., Ltd., Dunhua City Dexin Wood Industry Co., Ltd., Dalian Huilong Wooden Products Co., Ltd., Kunshan Yingyi-Nature Wood Industry Co., Ltd., Karly Wood Product Limited. Also represented by James Kevin Horgan, Alexandra H. Salzman.

          Arthur K. Purcell, Sandler Travis & Rosenberg, P.A., New York, NY, for plaintiff-appellant Lumber Liquidators Services, LLC. Also represented by Mark Ludwikowski, Kristen Smith, Washington, DC; Michelle L. Mejia, Chicago, IL.

          Harold Deen Kaplan, Hogan Lovells U.S. LLP, Washington, DC, for plaintiff-appellant Armstrong Wood Products (Kunshan) Co., Ltd. Also represented by Craig Anderson Lewis.

          Tara K. Hogan, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee United States. Also represented by Benjamin C. Mizer, Jeanne E. Davidson, Claudia Burke; Shelby Anderson, Office of Chief Counsel for Trade Enforcement and Compliance, United States Department of Commerce, Washington, DC.

          Jeffrey Steven Levin, Levin Trade Law PC, Bethesda, MD, for defendant-appellee The Coalition for American Hardwood Parity.

          Before Lourie, Taranto, and Chen, Circuit Judges.

          Taranto, Circuit Judge.

         This case arises from the U.S. Department of Commerce's antidumping-duty investigation of multilayered wood flooring imports from the People's Republic of China. The appellants here are Chinese entities that Commerce found had demonstrated their independence from the Chinese government and so deserved a "separate" antidumping-duty rate, not the so-called China-wide rate that applies to entities that had not shown their independence from the Chinese government. Commerce did not individually investigate appellants to determine firm-specific dumping margins. Instead, it assigned them a rate that, though not specified numerically, was declared to be more than de minimis, even though it found zero or de minimis dumping margins for all three of the Chinese firms that it had individually investigated. The Court of International Trade affirmed that determination.

         Appellants contend that they are entitled to a de minimis rate. After the Court of International Trade rendered its decision in this case, our court made clear that the "separate rate" method used by Commerce here is a departure from the congressionally approved "expected method" applicable when all of the individually investigated firms have a zero or de minimis rate, which is the case here, and that certain findings are necessary to justify such a departure. Albemarle Corp. & Subsidiaries v. United States, 821 F.3d 1345, 1348 (Fed. Cir. 2016). Under the "expected method, " appellants would be entitled to a de minimis rate. Because Commerce did not make the findings needed to justify departing from the expected method, we vacate the Court of International Trade's judgment, and we remand.

         I

         In 2010, the Department of Commerce initiated an antidumping-duty investigation of multilayered wood flooring from China, based on a petition filed by the Coalition for American Hardwood Parity under 19 U.S.C. § 1673a(b). Multilayered Wood Flooring from the People's Republic of China: Initiation of Antidumping Duty Investigation, 75 Fed. Reg. 70, 714 (Dep't of Commerce Nov. 18, 2010). In order to select particular Chinese firms to be individually investigated as mandatory respondents, Commerce sent questionnaires to the Chinese exporters and producers identified in the petition, asking about the quantities and value of the goods at issue sent to the United States. Id. at 70, 717-18. Of the 190 recipients of the questionnaire, 80 timely responded. Multilayered Wood Flooring from the People's Republic of China: Preliminary Determination of Sales at Less Than Fair Value, 76 Fed. Reg. 30, 656, 30, 657 (Dep't of Commerce May 26, 2011). Commerce selected "the three largest exporters (by volume)" as mandatory respondents. Id. at 30, 658. Although several firms offered to be individually investigated as voluntary respondents, id., the three mandatory respondents are the only firms that Commerce individually investigated in this investigation. See Changzhou Hawd Flooring Co. v. United States, 44 F.Supp.3d 1376, 1389 n.31, 1390 (Ct. Int'l Trade 2015).

         Commerce deems China to be a nonmarket economy, and it presumes that each Chinese exporter and producer is state-controlled, and thus covered by a single China-wide antidumping-duty rate, but a firm may rebut the presumption. See Changzhou Wujin Fine Chem. Factory Co. v. United States, 701 F.3d 1367, 1370 (Fed. Cir. 2012). Here, Commerce determined that 74 firms established their independence from the Chinese government. See Multilayered Wood Flooring from the People's Republic of China: Final Determination of Sales at Less Than Fair Value, 76 Fed. Reg. 64, 318, 64, 321-22 (Dep't of ...


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