CIT Remands ITA Decision not to Consider Requested Evidence in China Wood Flooring CV Investigation

The Court of International Trade remanded part of the International Trade Administration’s final determination in the countervailing duty investigation of multilayered wood flooring from China (C-570-971) for the ITA to reconsider its inclusion of two companies in a list of non-cooperating companies assigned an adverse facts available rate.

The two companies, Eswell Timber and Elegant Living, didn’t respond to the ITA’s initial quantity and value questionnaire, and so were deemed uncooperative. However, the companies later placed evidence on the record, at the ITA’s request, that their company names were actually Shanghai Eswell Timber and Baroque Timber Industries, respectively. CIT said the ITA abused its discretion by not considering evidence of its mistake, even though the evidence was untimely, because the ITA declined to rely on evidence that the ITA itself had requested.

CIT also affirmed the ITA’s use of adverse facts available (AFA) to calculate an electricity subsidy for Fine Furniture, even though AFA was assigned because of non-cooperation by the Chinese government and through no fault of the company. In so doing, CIT said Fine Furniture failed to provide any benchmark that was any better than the AFA rate.

Additionally, CIT affirmed the ITA’s inclusion of a component in the calculation for the electricity subsidy for Fine Furniture despite not giving interested parties an opportunity to comment on such inclusion. CIT said Fine Furniture failed to show how the lack of opportunity for comment caused harm, and so deemed the ITA’s omission a “harmless error” that the court cannot overturn.

(Fine Furniture (Shanghai) Ltd. v. United States, CIT Slip-Op. 12-113, dated 08/31/12, Judge Pogue)

(Attorneys: Kristin Mowry of Mowry & Grimson for plaintiff Fine Furniture; Frank Sailer of Grunfeld Desiderio Lebowitz Silverman & Klestadt for consolidated plaintiffs including, among others, Baroque Living and Shanghai Eswell; Gregory Menegaz of DeKieffer & Horgan for six plaintiff-intervenors; Jeffrey Neely of Barnes, Richardson & Colburn for 23 plaintiff-intervenors; Daniel Porter of Curtis, Mallet-Prevost, Colt & Mosle for plaintiff-intervenor Government of China; Alexander Sverdlov for defendant United States; Jeffrey Levin of Neville Peterson for defendant-intervenor the Coalition for American Hardwood Parity)