# United States **Court of Appeals**  **for the Federal Circuit**

______________________ MARVIN FURNITURE (SH ANGHAI) CO., LTD., Plaintiff

- Appellant,

v.

UNITED STATES, Defendant

- Appellee,

AND

AMERICAN FURNITURE M ANUFACTURERS COMMITTEE FOR LEGAL TRADE AND VAUGHAN

BASSETT FURNITURE CO MPANY, INC., Defendants

- Appellees.

______________________

2013

- 1156

______________________ Appeal from the United States Court of International Trade in No. 12

- CV

- 0100, Senior Judge Nicholas Tso ucalas.

______________________

Decided: March 11, 2014

______________________

J OHN M. P ETERSON , Neville Peterson LLP, of New York, New York, argued for plaintiff

- appellant. With him on the brief was R ICHARD F. O’N EILL

.MARVIN FURNITURE ( SHANGHAI ) v. US 2

C LAUDIA B URKE , Assistant Director , Commercial Lit igation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant

appellee United States. On the brief were S TUART F. D ELERY , Acting Assistant Attorney General, J EANNE E. D AVIDSON , Director, P ATRICIA M. M C C ARTHY , Assistant Director, and C ARRIE A. D UNSMORE , Trial Attorney. Of counsel on the brief was S HANA H OFSTETTER , Attorney, Office of the Chief Counsel for Import Administration, United States Department of Comme rce, of Washington, DC.

J AMES M ICHAEL T AYLOR , King & Spalding, LLP, of Washington, DC, argued for defendants -appellees Amer ican Furniture Manufacturers Committee for Legal Trade, et al. With him on the brief were J OSEPH W. D ORN and P. L EE S MITH . Of counsel was D ANIEL S CHNEIDERMAN

.

______________________

Before R ADER , Chief Judge, P ROST , and R EYNA , Circuit Judges.

R EYNA , Circuit Judge

. Marvin Furniture (Shanghai) Co. Ltd. (“Marvin”) a ppeals a final decision of the Court of International Trade

s ustaining a rescission by the Department of Commerce (“Commerce”) of Marvin’s new shipper review in conne ction with an antidumping order on wooden bedroom furniture from the People’s Republic of China

. Marvin Furniture (Shanghai) Co.

, v. United States , 86 7 F. Supp. 2d 1302 (Ct. Int’l Trade 2012)

. For the reasons below, we affirm

. B ACKGROUND In 2005, Commerce issued an antidumping duty order on wooden bedroom furniture from the People’s Republic of China. See Wooden Bedroom Furniture from the Pe ople’s Rep ublic of China , 70 Fed. Reg. 329 (Dep’t of Co m-MARVIN FURNITURE ( SHANGHAI ) v. US 3

merce Jan. 4, 2005) (“the antidumping order”)

. Pursuant to the antidumping order, importers of subject mercha ndise who were not individually investigated and assigned an individual rate by Commerce are required to post a cash deposit at a country

- wide rate of 216.01%.
Marvin is a Chinese producer and exporter of juvenile furniture. Marvin did not participate in the investigation resulting in the antidumping order and did not export subject merchandis e to the United States during the period of investigation

. O n July 30, 2011, Marvin requested a new shipper review in order to obtain an ind ividual antidumping duty rate and avoid the 216.01% country

- wide rate

. In its request, Marvin indicated that it ha d not exported subject merchandise into the United States prior to June 20, 2011.

Based on U.S. Customs and Border Protection data

, C ommerce determined that exports of subject mercha ndise manufactured by Marvin had entered the United States on September 8 and September 22, 2010. Co mmerce requested additional information from Marvin, and Marvin submitted a letter explaining that both entries contained only non

- subject merch andise samples for a trade show and that no sales or offers for sale were made. Comm erce accepted Marvin’s explanation and on August 25, 2011, initiated a new shipper review covering Marvin’s exports of subject merchandise entered during the period from January 1 through June 30, 2011

. Notice of the initiation of the ne w shipper review was published six days later in the Federal Register

. See Wooden Be droom Furniture from the People’s Republic of China , 76 Fed. Reg. 54,208 (Dep’t of Commerce Aug. 31, 2011).
On August 26, 2011, Marvin submitted additional i nformation to Commerce regardin g the September 2010 entries. Marvin explained that the imported goods co nsisted “primarily” of non

- subject merchandise and inclu ded some subject merchandise. Marvin continued toMARVIN FURNITURE ( SHANGHAI ) v. US 4

maintain that the goods were samples not entered for consumption or sale

. On August 31, 2011, Marvin not ified Commerce that it had discovered that the September 2010 imports were in fact entered for consumption

. Thus, contrary to what Marvin indicated in its initial request 1 for a new shipper review, Marvin ’s first entries of s ubject goods were made prior to June 20, 2011. Marvin noneth eless maintained that the error in its request was harmless because the request was still timely, as it was made within one year of the first entry of subject merchandise.
On January 1 0, 2012, Commerce preliminarily r escinded Marvin’s new shipper review

. Wooden Bedroom Furniture from the People’s Republic of China , 77 Fed. Reg. 1456 (Dep’t of Commerce Jan. 10, 2012). Commerce determined that, because Marvin’s request for a new shipper review d id not report the September 2010 entries, Marvin failed to submit a request based on the date and volume of its first entry of subject merchandise . Co mmerce therefore concluded that Marvin’ s req ue st “did not satisfy the regulatory requirements” of 19 C.F. R. §§ 351.214(b)(2)(iv)(A) and (B) and that Marvin was thus not entitled to a new shipper review

. See 77 Fed. Reg. at 1458.
In its response to the preliminary determination, Marvin argued that the rescission was improper because it was based on a harmles s and unintentional error that did not affect its eligibility for a new shipper review

. Commerce disagreed and made the rescission final on April 10, 2012. See Wooden Bedroom Furniture from the People’s Republic of China , 77 Fed. Reg. 21,536 (Dep’t of

1 Although not dispositive to the question of the su fficiency of an initial new shipper review request, it is noteworthy that

, after making its initial request, Marvin twice submitted erroneous information concerning the nature of its first shipment

.MARVIN FURNITURE ( SHANGHAI ) v. US 5

Commerce Apr. 10, 2012). Commerce reaffirmed that Marvin’s request did not meet the requirements of 19 C.F.R. §§ 351.214(b)(2)(iv)(A) and (B) because it did not include data establishing the date and volume of its first
ent ry of subject merchandise. 77 Fed. Reg. at 21,537

- 21,538.

Marvin filed suit in the Court of International Trade (“Trade Court”) , seeking to overturn Commerce’s final rescission. The court affirmed Commerce’s determination, finding that Marvin ’s fail ure to satisfy the regulatory requirements for a new shipper review rendered its request “facially infirm” under 19 C.F.R. §§ 351.214(b)(2)(iv)(A) and (B). Marvin Furniture , 867 F. Supp. 2d at 1308. Noting that Marvin was not challen gin g the legality of any part of § 351.214, the court co ncluded that Commerce’s interpretation of § 351.214 was reasonable, supported by substantial evidence, and in accordance with law. See id. Finally, the court also held that 19 U.S.C. § 1677m, which allows a party to correct prior filings, was inapplicable because Marvin’s request for a new shipper review was not filed in “response to a request for information” as contemplated under the
statute. See 19 U.S.C. § 1677m(d).
Marvin timely appealed. We have jurisdiction purs ua nt to 28 U.S.C. § 1295(a)(5).

D ISCUSSION

We review decisions of the Trade Court without de ference, applying the same standard of review that it applie s in its review of Commerce’s determinations. Mid Continent Nail Corp. v. United States , 725 F.3d 1295, 1300 (Fed. Cir. 2013). When reviewing Commerce’s determinations in an antidumping duty investigation, the Trade Court examines whether the determinations are “unsupported by substantial evidence on the record, or otherwise not in accordan ce with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). We review the Trade Court’s factualMARVIN FURNITURE ( SHANGHAI ) v. US 6

findings for clear error. Arko Foods Int’l, Inc. v. United States , 654 F.3d 1361, 1364 (Fed. Cir. 2011).
The antidumping duty trade statutes authorize Commerce to impose duties on imported goods that are sold in the United States at less than fair value

. See 19 U.S.C. § 1673. Once an antidumping duty order covering the goods subject to investigation is in place, Commerce may conduct an administrative review for “new” expor ters or producers who did not export the subject merchandise during the period of investigation

. See 19 U.S.C. § 1675(a)(2)(B). These “new shipper reviews” give expor ters or producers whose sales have not been previously examined by Commerce an opportuni ty to obtain their own individual antidumping duty rates

. C ommerce has promulgated regulations that set out the procedures governing new shipper review s. Pursuant to these regulations, an exporter or producer seeking a

new shipper review must include in its initial request 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 co nsumption, 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 shi pment s ; and
(C) The date of the first sale to a n unaffiliated customer in the United States.
19 C.F.R. § 351.214(b)(2)(iv).
Marvin argues that Commerce acted unlawfully when it determined that Marvin was ineligible for a new shi pper review on the basis that its initial request listed anMARVIN FURNITURE ( SHANGHAI ) v. US 7

erroneous date of first entry

. According to Marvin, no twithstanding any deficiencies in its initial request, it satisfied the statutory and regulatory requirements because it did not export subject merchandise during the period of investigation and it made its request f or a new shipper review within the one

- year regulatory period. Marvin thus contends that it was “eligible” for a new shipper review and that Commerce’s determination to the contrary was neither in accordance with law nor suppor ted by substantial evidence.
We disagree that Marvin was “eligible” for a new shipper review. The relevant regulations clearly provide that a new shipper initial request must , among other things, establish the date and volume of the first entry. See 19 C.F.R. § 351.214(b)(2)(iv). It is undisputed that Marvin’s initial request did not contain this information because it failed to disclo se the September 2010 entries and asserted that a later date (June 20, 2011) was the date of first entry . Although Marvin ultimately provided

correc t information to Commerce, it did so after Co mmerce had instituted the new shipper review

. Hence, the late information did not operate to make Marvin “eligible” for a new shipper review because a review had already been in itiated

, for a period not coverin g the September 2010 entries, based on the defective initial request. Accordingly, Commerce’s determination that Marvin was not eligible for new shipper review is supported by su bstantial evidence and not contrary to law

. Marvin argues in the alternative that “eligibility” for a new shipper review depend s solely on me eting the conditions provided in the statute: n ot having exported the subject merchandise during the investigation period or being affiliated with someone who did

. See 19 U.S.C. § 1675(a)(2)(B)(i)(I)

- (II). According to Marvin, Co mmerce’s regulation imposing additional eligibility r equirements improperly limits Marvin’s statutory right to obtain a new shipper review

. In other words, we are facedMARVIN FURNITURE ( SHANGHAI ) v. US 8

with the quest ion of whether Com merce ’s rescission of Marvin’s new shipper review on the basis that the initial request did not include the date and volume of the first consumption entry was a proper interpretation of the
statute under Chevron, U.S.A., Inc. v. Natural R es. De f. Council, Inc. , 467 U.S. 837 (1984)

. Un der the Chevron framework, we first must dete rmine “whether Congress has directly spoken to the pr ecise question at issue.” Chevron

, 467 U.S. at 842

. Here, the “precise question at issue” is whether Commerce may rescind the initiation of a new shipper review on grounds that the initial review request failed to establish the correct date and volume of the first entry of subject me rchandise. Our review of Section 1675 indicates that Section 1675 does not addre ss this precise issue . Ther efore, our next question is “ whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843. If Commerce’s interpretation is reasonable, Chevron requires us to accept the agency’s construction, “even if the agency’s reading differs from what the court believes is the best statutory interpretation.” Nat’l Cable & Tel ecomm. Ass’n v. Brand X Internet Servs. , 545 U.S. 967, 980 (2005). As discussed below, we hold that Commerce’s interpretation of the statute is reasonable.
Congress left it to Commerce to establish the proc edures necessary to conduct new shipper reviews

. The statute mandates that Comme rce “shall” establish, within the prescribed amount of time, an individual duty rate for an exporter or producer who has demonstrated that it did not export subject merchandise during the period of investigation or was affiliated with someone who did. See 19 U.S.C. § 1675(a)(2)(B)(i)

- (ii). The only procedural requirement imposed by the statute is that Commerce make its preliminary and final determinations within the time limits of § 1675(a)(2)(B)(iv). T o fulfill its mandate, Commerce exercised appropriate authority to promulgate the procedural requirement that the request for a newMARVIN FURNITURE ( SHANGHAI ) v. US 9

shipper review establ ish the date on which the goods covered under the outstanding antidumping duty order first entered the U.S. market for consumption

. See Nat’l Cable , 545 U.S. at 982 (“ Chevron’s premise is that it is for agencies, not courts, to fill statutory gaps.”).
Here, given that Commerce must conduct a new shi pper review within a determined amount of time, it is reasonable for Commerce to require data on a new shi pper’s first entry of subject merchandise as a prerequisite for initiation of a new shipper review. A s the Trade Court noted, the required information “provides the basis upon which Commerce can undertake the review and calculate an individual dumping rate.” Marvin Furniture , 867 F. Supp. 2d at 1308. Requiring that such fundamental information be includ ed in the initial request not only assists Commerce in fulfilling its statutory obligation to conduct a review in a timely manner , it also ensures that

a new ship per review is in itiated , and that an individual rate is accurately determined

, on the basis of all relevant entries.

The one

- year regulatory period also ensures that new shipper reviews are granted to exporters and producers that are entering the U.S. market for the first time. These are the only exporters and producers that are entitled to rece ive the statutory benefit of being able to post a bond and avoid paying cash deposits during the

c ourse of a review. See 19 U.S.C. § 1675(a)(2)(B)(iii). Accordingly, w e see no reason why this Court should revise Commerce’s requirements for instituting ne w shipper reviews

. Commerce’ s treatment of the docume ntation required under 19 C.F.R. § 351.214 (b)(2)(iv) as an eligibility requirement is reasonable , and its rescission of Marvin’s new shipper request is not contrary to law

. Marvin argues that its failure to comply with the re gulation was harmless error because the only purpose of requiring documentation is to determine compliance withMARVIN FURNITURE ( SHANGHAI ) v. US 10

the one

- year requirement, which Marvin argues it still
met even considering the September 2010 entries

. We disagre e. The error was not harmless be cause it led Commerce to institute the new shipper review for a period from January 1 through June 30, 2011. T he September 2010 entries could not have been investigated because they were outside the period of review. Rega rdless of whether the error was unintentional or not, the result was the institution of a new shipper review covering less than all relevant entries necessary to determine an acc urate individual rate. W e agree with the Trade Court that Commerce did not er r in applying the express provisions of the regulation and determining that a “facially infirm” request is proper grounds for rescinding a new shipper review.
Finally, we affirm the Trade Court’s determination that 19 U.S.C. § 1677m is inapplicable because Marvin’s request for a new shipper review was not filed in “r esponse to a request for information.” See 19 U.S.C. § 1677m(d) (providing that Commerce shall provide an opportunity to remedy deficient submissions if “a response to a request for informat ion

. . . does not comply with the request”)

. Marvin’s defective initial request was filed of its own accord.

C ONCLUSION

We hol d that Commerce’s rescission of a new shipper review based on a failure to establish in the initial r equest for the review the correct date and volume of first entry of subject merchandise is a reasonable interpret ation of the statute and its regulations, and a proper exe rcise of Commerce’s regulatory authority. The Trade Court’s decision affirming Commerce’s rescissi on of Marvin’s new shipper review is

AFFIRMEDMARVIN FURNITURE ( SHANGHAI ) v. US 11

C OSTS Each party shall bear its own costs.