Lifestyle Enterprise, Inc. v. United States , 751 F.3d 1371 ( 2014 )

United States Court of Appeals
for the Federal Circuit
______________________
LIFESTYLE ENTERPRISE, INC.,
Plaintiff,
AND
TRADE MASTERS OF TEXAS, INC.,
EMERALD HOME FURNISHINGS, LLC, AND RONS
WAREHOUSE FURNITURE (doing business as
Vineyard Furniture International LLC),
Plaintiffs,
AND
DREAM ROOMS FURNITURE (Shanghai) CO.,
LTD.,
Plaintiff,
AND
ORIENT INTERNATIONAL HOLDING SHANGHAI
FOREIGN TRADE CO., LTD.,
Plaintiff,
AND
GUANGDONG YIHUA TIMBER INDUSTRY CO.,
LTD.,
Plaintiff-Appellant,
v.
UNITED STATES,
2 LIFESTYLE ENTERPRISE, INC. v. US
Defendant-Appellee,
v.
AMERICAN FURNITURE MANUFACTURERS
COMMITTEE FOR LEGAL TRADE AND VAUGHAN-
BASSETT FURNITURE COMPANY, INC.,
Defendants-Cross Appellants.
______________________
2013-1323, -1331
______________________
Appeals from the United States Court of International
Trade in Nos. 09-CV-0378, 09-CV-0379, 09-CV-0394, 09-
CV-0395, 09-CV-0398, and 09-CV-0399, Judge Jane A.
Restani.
______________________
Decided: June 2, 2014
______________________
THOMAS M. BELINE, Cassidy Levy Kent (USA) LLP, of
Washington, DC, argued for plaintiff-appellant. With him
on the brief were JOHN D. GREENWALD and JONATHAN M.
ZIELINSKI.
STEPHEN C. TOSINI, Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for defendant-
appellee. With him on the brief were STUART F. DELERY,
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and PATRICIA M. MCCARTHY, Assistant Director. Of
counsel were REBECCA CANTU and SHANA ANN
HOFSTETTER, attorneys, Office of the Chief Counsel for
Import Administration, United States Department of
Commerce, of Washington, DC.
LIFESTYLE ENTERPRISE, INC. v. US 3
J. MICHAEL TAYLOR, King & Spalding LLP, of Wash-
ington, DC, argued for defendants-cross appellants. With
him on the brief were JOSEPH W. DORN and DANIEL L.
SCHNEIDERMAN. Of counsel was PRENTISS LEE SMITH, JR.
______________________
Before RADER ∗, LINN, and TARANTO, Circuit Judges.
TARANTO, Circuit Judge.
Guangdong Yihua Timber Industry Co., Ltd. (Yihua),
appeals a final judgment of the Court of International
Trade that sustained the latest results (following three
previous remands) reached by the United States Depart-
ment of Commerce in a review of antidumping duties
imposed on wooden bedroom furniture imported from the
People’s Republic of China. The American Furniture
Manufacturers Committee for Legal Trade and Vaughan-
Bassett Furniture Company, Inc. (together, AFMC), cross-
appeal. For the reasons set out below, we affirm in part,
reverse in part, and remand.
BACKGROUND
In 2005, Commerce issued an order imposing anti-
dumping duties on wooden bedroom furniture from the
People’s Republic of China. Wooden Bedroom Furniture
from the People’s Republic of China, 70 Fed. Reg. 329(Dep’t Commerce Jan. 4, 2005). On March 7, 2008, acting
under 19 U.S.C. § 1675(a), Commerce initiated its third
administrative review of the duties. Wooden Bedroom
Furniture from the People’s Republic of China, 73 Fed.
Reg. 12,387 (Dep’t Commerce Mar. 7, 2008) (notice of
administrative review). The review covered imports
during 2007. Commerce published its preliminary results
on February 9, 2009. Wooden Bedroom Furniture from
∗
Randall R. Rader vacated the position of Chief
Judge on May 30, 2014.
4 LIFESTYLE ENTERPRISE, INC. v. US
the People’s Republic of China, 74 Fed. Reg. 6,372 (Dep’t
Commerce Feb. 9, 2009) (preliminary results).
As authorized by the statute in the case of China,
Commerce, in calculating dumping margins, sought to
estimate production costs of the merchandise at issue by
using surrogate values from a comparable market econo-
my. 19 U.S.C. § 1675(a)(2)(A)(i) (in review of antidump-
ing duty, Commerce must determine normal value of the
merchandise at issue); 19 U.S.C. § 1677b(c)(1) (for a
nonmarket economy country, Commerce may determine
normal value based on factors of production in a compa-
rable market economy country). In its preliminary re-
sults, Commerce determined the value for wood inputs
into the furniture, including lumber, by using data from
the Philippines National Statistics Office (NSO), which
listed imports of wood into the Philippines by volume (in
cubic decimeters) and value, resulting in dollars-per-
volume-unit figures for various kinds of wood. Prelimi-
nary Results, 74 Fed. Reg. at 6,383. Commerce relied on
financial statements from five Philippine companies,
including Diretso Design Furniture, Inc., to determine
values for overhead, for selling, general, and administra-
tive expenses, and for profit. Id. at 6,384.
Yihua, a Chinese company that manufactures wooden
furniture imported into the United States, filed comments
on the preliminary results, challenging Commerce’s
reliance on the NSO’s volume-based data and on Diretso
Design’s financial statements. With respect to the NSO’s
volume-based data for wood inputs, Yihua contended that
certain anomalies rendered the data unreliable, and it
proposed that Commerce use data on imports into the
Philippines available from the World Trade Atlas (WTA),
which gave weight-based (per-kilogram) figures. With
respect to Diretso Design, Yihua contended that there
were multiple “Diretso” entities and that the Diretso
company whose financial statements Commerce used was
LIFESTYLE ENTERPRISE, INC. v. US 5
not the same company as the Diretso company that Com-
merce found to be comparable to Yihua.
In its Final Results, Commerce agreed with Yihua re-
garding the wood-input issue but not the Diretso issue.
Wooden Bedroom Furniture from the People’s Republic of
China, 74 Fed. Reg. 41,374 (Dep’t Commerce Aug. 17,
2009) (final results), amended by 74 Fed. Reg. 55,810(Oct. 29, 2009). Commerce agreed with Yihua that the
NSO’s volume-based figures were unreliable, and it
adopted the WTA’s weight-based figures in their place.
Final Results, 74 Fed. Reg. at 41,377; Wooden Bedroom
Furniture from the People’s Republic of China, Issue and
Decision Memorandum for the Final Results of the 2007
Antidumping Duty Administrative and New Shipper
Reviews, 5-8 (Dep’t Commerce Aug. 10, 2009). As to
Diretso, Commerce relied on the financial statements of
the same five companies it had used for the preliminary
results (including Diretso Design), but also included the
financial statements of three additional companies. Final
Results, 74 Fed. Reg. at 41,377.
Interested parties brought six separate challenges in
the Trade Court, which consolidated them for conven-
ience. Lifestyle Enter., Inc. v. United States, Case No.
09-378 (Ct. Int’l Trade Nov. 9, 2009) (ECF No. 34) (consol-
idation order). Upon plaintiffs’ and defendants’ motions
for judgment on the agency record, the Trade Court
remanded the case for Commerce to explain why it used
the WTA’s weight-based data, rather than the NSO’s
volume-based data, citing “patent complications with
using gross weight data with wood inputs.” Lifestyle
Enter., Inc. v. United States, 768 F. Supp. 2d 1286, 1301
(Ct. Int’l Trade 2011) (Lifestyle I). The Trade Court also
directed Commerce to redetermine on remand whether
the financial statements of Diretso Design were from the
correct company. Id. at 1308.
6 LIFESTYLE ENTERPRISE, INC. v. US
On remand, in its First Redetermination results,
Commerce continued use of the WTA’s weight-based data,
as in the Final Results, but discontinued use of Diretso
Design’s financial statements. Final Results of Redeter-
mination Pursuant to Remand, 8, 18 (Dep’t Commerce
Aug. 26, 2011) (ECF No. 132). Commerce explained that
it found the NSO’s volume-based import data to be unre-
liable because importers (into the Philippines) were
required to report weight and value, but not necessarily
volume, and when an importer did not report volume, the
Philippine NSO filled in a volume figure using a standard
conversion factor (a number stated with three decimal
places) based on an assumed wood density of 848 kilo-
grams per cubic meter. Id. at 10-11. Commerce found
that “the record demonstrate[d] that a significant portion
of [the volume-based] data were based on standard con-
versions from gross weight data . . . regardless of the fact
that they cover different types of wood.” Id. Commerce
observed that “the same conversion was used in . . . more
than 38 percent of the relevant transactions” and found it
“highly unlikely that actual conversions would be the
same to three decimal points for different types of wood
imported from different countries.” Id. Commerce also
found that the assumed density of 848 kilograms per
cubic meter significantly exceeded the densities of the
wood that Yihua Timber used. Id. at 11.
Although Commerce acknowledged that the weight-
based figures were also imperfect for valuing the lumber
inputs, Commerce found the weight-based data to be more
reliable for the veneer and plywood inputs, and it found
some value in using a consistent data source for all the
wood inputs (veneer, plywood, and lumber). Accordingly,
Commerce decided to maintain its reliance on the weight-
based WTA data for valuing all the wood inputs, including
lumber. Commerce also decided to reverse its original
decision regarding the use of Diretso Design’s financial
LIFESTYLE ENTERPRISE, INC. v. US 7
statements; it excluded those statements from the surro-
gate financial ratio calculations.
On review, the Trade Court found that “the record
clearly demonstrates that the use of weight-based data
understates the wood input surrogate value” because the
“low-moisture, kiln-dried wood” Yihua uses would “com-
mand a higher price per kilogram” and “yield[] more cubic
meters of wood per kilogram” than higher-moisture green
wood. Lifestyle Enter., Inc. v. United States, 844 F. Supp.
2d 1283, 1293-94 (Ct. Int’l Trade 2012) (Lifestyle II).
Because it could be presumed that the import data for
lumber included imports of higher-moisture green wood,
the Trade Court concluded, use of weight-based data to
value the lumber imports “places an artificially low value
on the wood used by Yihua Timber because the inclusion
of higher-moisture content wood and wood that lacks the
value added from the kiln-drying process depresses the
surrogate value.” Id. at 1294. 1 The Trade Court remand-
ed for Commerce either to use the volume-based data in
the record or to expand the record. Id. at 1297-98. The
Trade Court affirmed Commerce’s decision to exclude
1 For example, assume that 1,000 kilograms of
green wood has a volume of 1 cubic meter and is valued at
$500 ($0.50 per kilogram), while 1,000 kilograms of kiln-
dried wood has a volume of 2 cubic meters (because of its
lower density) and is actually valued at $1500—reflecting
the doubling of wood volume at $500 per cubic meter plus
value added by the kiln-drying process. If one knew only
the weight of the kiln-dried wood, knew neither the
volume nor the value added by kiln drying, and merely
applied the weight-based value of the green wood ($0.50
per kilogram) to establish a value, the 1,000 kilograms of
kiln-dried wood would be valued at only $500—one third
the hypothesized actual value.
8 LIFESTYLE ENTERPRISE, INC. v. US
Diretso Design’s financial statements—the last determi-
nation on that issue. Id. at 1298.
In its Second Redetermination results, Commerce,
under protest, used the NSO’s volume-based data, rather
than reopen the record. See Lifestyle Enter., Inc. v. United
States, 865 F. Supp. 2d 1284, 1294 n.13 (Ct. Int’l Trade
2012) (Lifestyle III). Commerce rejected Yihua’s conten-
tion that, if the weight-based import data could not be
used, Commerce should either re-open the record or rely
on other volume-based data in the record (either infor-
mation from the U.S. Department of Agriculture about
prices of wood exports to the Philippines or information
about prices at which certain hardwood lumber was sold
in the Philippines). Final Results of Redetermination
Pursuant to Second Remand, 11-13 (Dep’t Commerce
June 11, 2012) (ECF No. 183); see Lifestyle III, 865 F.
Supp. 2d at 1293-94. On review, the Trade Court rejected
Yihua’s argument and affirmed Commerce’s Second
Redetermination results with respect to the valuation of
the wood inputs. Id. at 1294. 2
The Trade Court entered the identical judgment not
only on the docket of the consolidated case, No. 09-378 in
the Trade Court, but also on the docket of each of the
consolidated cases, including No. 09-398, the case that
Yihua initiated. Yihua appeals the judgment insofar as it
affirms the final valuation of the wood inputs using the
NSO’s volume-based data, while AFMC cross-appeals the
judgment insofar as it affirms Commerce’s decision not to
rely on Diretso Design’s financial statements. Both
invoke 28 U.S.C. § 1295(a)(5).
2 The Trade Court remanded a third time for recon-
sideration of a separate issue that is not before us. Com-
merce’s resolution of that issue led ultimately to the final
judgment that is on appeal. Id.LIFESTYLE ENTERPRISE, INC. v. US 9
That statute gives this court jurisdiction, subject to
our resolution of one issue raised by AFMC at the conclu-
sion of the briefing on the merits of the appeal. Concur-
rent with the filing of its reply brief, AFMC moved for
partial dismissal of Yihua’s appeal for lack of subject
matter jurisdiction. Mot. for Partial Dismissal, Lifestyle
Enter., Inc. v. United States, No. 2013-1323 (Fed. Cir. Oct.
30, 2013) (ECF No. 61). Specifically, AFMC contended
that Yihua lacks standing to argue that Commerce should
have valued lumber using weight-based import data
rather than volume-based import data. Id. at 2-3. This
court deferred AFMC’s motion for consideration by the
merits panel. Lifestyle Enter., Inc. v. United States, No.
2013-1323 (Fed. Cir. Dec. 16, 2013) (order) (ECF No. 70).
We address this issue below.
DISCUSSION
A
Although AFMC acknowledges that “no jurisdictional
infirmities regarding Yihua’s appeal (Case No. 2013-1323)
were raised” in the parties’ briefing on the merits, it
contends that “further investigation” has revealed that
“Yihua lacks standing to assert” that the Trade Court
erred in disapproving Commerce’s use of weight-based
import data in the Final Results and First Redetermina-
tion. Mot. for Partial Dismissal at 1. AFMC’s motion
rests on the fact that only one of the six separate actions
challenging Commerce’s Final Results presented a chal-
lenge to Commerce’s use of weight-based data—AFMC’s
action—and Yihua was not a party to that action. Id. at
2, 3. Because AFMC did not raise this objection until
after its opening brief on the merits, the objection may
succeed only if it bears on our jurisdiction or otherwise
justifies the extraordinary step of disregarding AFMC’s
waiver. We conclude that it does not.
Although AFMC invokes Article III subject matter ju-
risdiction to justify its eleventh-hour motion on this issue,
10 LIFESTYLE ENTERPRISE, INC. v. US
Mot. for Partial Dismissal at 1, AFMC does not contend
that the three elements required to establish Article III
standing are missing here. Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992) (constitutional standing
requires plaintiff to establish an “injury in fact,” a causal
connection between the injury and the conduct com-
plained of, and a likelihood that the injury will be re-
dressed by a favorable decision). There is no doubt that
the Trade Court’s rejection of use of the weight-based
data causes Yihua to lose money (by elevating the duties
imposed on its imports) and that reversing the rejection is
likely to benefit Yihua. Moreover, Yihua plainly asserts
its own legal rights and interests, not those of another, 19
U.S.C. §§ 1516a(a)(2)(A), (f)(3); 28 U.S.C. § 2631(c), thus
making immaterial any question about the jurisdictional
character of “third-party standing.” See, e.g., Lexmark
Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct.
1377, 1387 n.3 (2014); Sprint Commc’ns Co., L.P. v. APCC
Servs., Inc., 554 U.S. 269, 290 (2008).
AFMC’s only real argument invokes Marino v. Ortiz,
484 U.S. 301, 304 (1988), for the “rule that only parties to
a lawsuit, or those that properly become parties, may
appeal an adverse judgment.” Mot. for Partial Dismissal
at 4. But that argument is simply misplaced in this case.
Yihua appeals the consolidated judgment that was en-
tered in its own suit as well as in the consolidated case
and in each of the cases that were consolidated. AFMC is
incorrect in its essential premise that Yihua is attempting
to appeal only the judgment in a case to which it was not
a party. Whatever the scope of the general principle
stated in Johnson v. Manhattan Ry. Co., 289 U.S. 479,
496-97 (1933), that “consolidation . . . does not merge the
suits into a single cause, or change the rights of the
parties, or make those who are parties in one suit parties
in another,” it hardly implies that a party to a case may
not appeal a judgment entered in that case.
LIFESTYLE ENTERPRISE, INC. v. US 11
At most, then, AFMC’s argument is a waiver argu-
ment—that Yihua waived the ability to defend Com-
merce’s reliance on weight-based data because its
complaint in its own suit presented a challenge to Com-
merce’s decision on different grounds—a challenge it did
not pursue to the briefing stage in Lifestyle I—and it did
not intervene on Commerce’s side in the separate case
(AFMC’s case) presenting a challenge to Commerce’s use
of weight-based data. This argument runs into the many
decisions that recite the general rule that a party may
raise on appeal any issue that was raised or actually
decided below. See, e.g., United States v. Williams, 504
U.S. 36, 41 (1992) (traditional rule “permit[s] review of an
issue not pressed so long as it has been passed upon”);
Hollmer v. Harari, 681 F.3d 1351, 1356 n.3 (Fed. Cir.
2012); Blackmon-Malloy v. U.S. Capitol Police Bd., 575
F.3d 699, 707 (D.C. Cir. 2009). Here, the judgment
against Yihua rested on the Trade Court’s express holding
that Commerce could not use the weight-based data on
the record that Commerce made.
In any event, we ultimately need not decide the cor-
rectness of AFMC’s non-jurisdictional waiver argument.
AFMC itself waived the argument by failing to raise it
until briefing on the merits of the appeal was complete.
See Becton Dickinson and Co. v. C.R. Bard, Inc., 922 F.2d
792, 800 (Fed. Cir. 1990) (arguments not raised until
reply brief are waived); Garlington v. O’Leary, 879 F.2d
277, 282 (7th Cir. 1989) (“a defense of waiver can itself be
waived by not being raised”). And we see no good reason
to overlook this waiver on AFMC’s part.
AFMC cannot claim surprise or unfairness in the
presentation of the issue on appeal, or lack of a full oppor-
tunity for AFMC to litigate it or the Trade Court to con-
sider it. AFMC presented its case against Commerce’s
use of the import weight data not once but twice, and each
time the United States defended Commerce’s decision
before the Trade Court. Yihua’s fellow plaintiff, Lifestyle
12 LIFESTYLE ENTERPRISE, INC. v. US
Enterprise, Inc., also argued before the Trade Court that
“Commerce’s adoption of WTA weight-based data was
supported by substantial evidence.” Lifestyle III, 865 F.
Supp. 2d at 1293. And Yihua itself made its position
known long before this appeal. After relying on Com-
merce to defend use of the weight-based data on the
challenge to the Final Results, Yihua defended that
position when the matter returned to the Trade Court
after Commerce’s First Redetermination, id. at 1292-93,
and on remand to Commerce, Yihua filed a brief reiterat-
ing its support of Commerce’s use of weight-based import
data. Resp. to Mot. for Partial Dismissal at 3-4, Lifestyle
Enter., Inc. v. United States, No. 2013-1323 (Fed. Cir.
Nov. 15, 2013) (ECF No. 67); Ex. 3 to Resp. to Mot. for
Partial Dismissal at 4-7. In these circumstances, we
have, and will exercise, jurisdiction to decide Yihua’s
appeal regarding Commerce’s use of volume-based import
data.
B
Because we find no defect in Yihua’s standing to ap-
peal the final judgment of the Trade Court, we have
jurisdiction to review the Trade Court’s decision under 28
U.S.C. § 1295(a)(5). In our review on the merits, we
evaluate Commerce’s underlying decision anew, applying
the same standard of review as the Trade Court: we
uphold Commerce’s determinations of fact unless they are
not supported by substantial evidence and review its legal
conclusions de novo. Norsk Hydro Canada, Inc. v. United
States, 472 F.3d 1347, 1357 (Fed. Cir. 2006).
1
On appeal from Commerce’s Final Results, the Trade
Court found that “Commerce failed to explain why it
chose gross weight data (from the WTA) over volume data
(from the NSO),” and remanded so that Commerce could
reconsider the matter. Lifestyle I, 768 F. Supp. 2d at
1301-02, 1314. In its First Redetermination results,
LIFESTYLE ENTERPRISE, INC. v. US 13
Commerce did just that. Because Commerce reasonably
chose one of two imperfect data sets, the Trade Court
erred in substituting its own judgment for Commerce’s.
The statute directs Commerce, when using costs of
production to determine the normal value of merchandise
from non-market economies, to value the factors of pro-
duction “based on the best available information regard-
ing the values of such factors in a market economy
country or countries considered to be appropriate by the
administering authority.” 19 U.S.C. § 1677b(c)(1) (em-
phasis added). When all the available information is
flawed in some way, Commerce must make a judgment
call as to what constitutes the “best” information.
In this matter, Commerce explained that much of the
NSO’s volume-based information (primarily for the veneer
and plywood inputs) reflected the use of a standard con-
version factor to derive volume from weight, a process
that Commerce found not “fully accurate.” Final Results
of Redetermination Pursuant to Remand at 40-41. Com-
merce reasoned that the NSO volume data reflected
application of the same conversion factor to 38 percent of
the relevant wood transactions—involving “many entries
from different countries” and “woods of extremely differ-
ent average unit values”—but it was “highly unlikely that
all of these woods could have the exact same density to
three decimal points.” Id. at 10-11, 41. Commerce also
found, and it is not disputed in this court, that “the 848
kilograms per cubic meter conversion factor diverges
significantly from the specific and average densities of the
woods used in calculating normal value for” Yihua
(whether lumber, veneers, or plywood). Id. at 11. Com-
merce acknowledged that it could positively confirm the
NSO’s use of the standard conversion factor for only a
“very small” portion of lumber transactions (in quantity
and value), unlike for the veneer and plywood transac-
tions, but it added that the NSO’s use of the standard
conversion factor may have been “masked by the concur-
14 LIFESTYLE ENTERPRISE, INC. v. US
rent application of specific conversions,” as Yihua had
argued. Id. at 40. Nevertheless, because Commerce
concluded that the standard conversion factor rendered
the volume-based data less reliable than the weight-based
data for valuing Yihua’s veneer and plywood inputs, 3 and
found no advantage to using volume-based data rather
than weight-based data for lumber inputs, Commerce
determined that, for consistency, it was best to use the
weight-based data set for all types of wood inputs.
In concluding that there was no advantage to using
the volume-based data rather than the weight-based data
for the lumber inputs, Commerce considered the conten-
tion that the weight-based figures were distorted by the
presence of green wood in the import transactions, but
found no support for the contention in record evidence.
On the contrary, Commerce found that it was undisputed
that wood density depends not only on moisture content,
but on the species of the wood, and that “the surrogate
value categories in both the WTA and the Philippine NSO
data are basket categories that do not specify the species
or moisture content mixes of the wood within each catego-
ry.” Final Results of Redetermination Pursuant to Re-
3 Unlike lumber, veneer and plywood are always al-
ready dried when imported. Thus, Commerce concluded
that weight-based information about veneer and plywood
imports cannot be distorted by the presence of green wood
and does not suffer from the standard-conversion problem
affecting the volume-based data. As AFMC observes
(Cross-Appellant Br. 15 n.5), no party challenged Com-
merce’s use of weight-based import data for veneer and
plywood based on the finding that “the use of standard
conversions render[s] the NSO volume-based database
less reliable for purposes of valuing Yihua’s veneer and
plywood inputs than weight-based data.” Final Results of
Redetermination Pursuant to Remand at 42.
LIFESTYLE ENTERPRISE, INC. v. US 15
mand at 46. Thus, it was impossible to know, based on
the record, whether the higher average density of the
Philippine imports reflected the presence of green wood,
higher-density species, or both. Commerce found that
green wood would tend to increase the average density
and decrease the surrogate value, while the presence of
higher-density species, which are generally more expen-
sive than the low-density species used by Yihua, would
tend to increase the average density and also the surro-
gate value. Commerce concluded that “average values
would only be improperly diluted if the mix was dispro-
portionately made up of high moisture green wood,” but
found “absolutely no record support” for that premise in
this case. Id. at 45.
Commerce thus acknowledged and evaluated poten-
tial problems in using either the weight-based or volume-
based data to value the lumber imports. Commerce
concluded that the lack of evidence quantifying those
problems made it “not possible to assess if and to what
extent the use of the weight-based data or the volume-
based data distorts the calculation of surrogate values” for
the lumber inputs. Id. at 47. Therefore, Commerce saw
“no basis to state that the NSO volume data is superior”
and “no reason to switch” from weight data to volume
data for the lumber inputs, adding that “relying on the
same source provides some level of consistency for the
parties.” Id.
AFMC has not presented to this court, and the Trade
Court did not set out, an adequate basis for rejecting
Commerce’s reasoning. The Trade Court concluded that
green wood “has a definitive value-suppressing effect
when weight-based data are used,” while “the impact of
species mix has variable and indeterminate effects,” such
that “the record clearly demonstrates that the use of
weight-based data understates the wood input surrogate
value.” Lifestyle II, 844 F. Supp. 2d at 1293-94. But
whether the weight-based information was reliable de-
16 LIFESTYLE ENTERPRISE, INC. v. US
pends on the magnitudes of influences pointing in oppo-
site directions, and in any event the question for Com-
merce was a comparative one: are the weight-based
figures more reliable than the volume-based figures?
Commerce judged that it could not find that the weight-
based figures understated the wood value, or were less
reliable than the available volume-based figures, when
the mix of moistures was unknown (high-moisture im-
ports push the values lower), the mix of species was
unknown (high-value species push the values higher), and
either or both components (moisture and species) could
account for the higher density of Philippine imports. At
the same time, no party challenged Commerce’s finding
that the volume-based figures were less reliable than the
weight-based figures for purposes of valuing the veneer
and plywood inputs. Cross-Appellant Br. 15 n.5. AFMC
has provided us no basis for rejecting Commerce’s ulti-
mate determination that, because it could not find distor-
tions in the weight-based data to be so great as to
override identified defects in the volume-based data, the
weight-based data constituted the “best available infor-
mation.” 19 U.S.C. § 1677b(c)(1).
In its First Redetermination results, Commerce thus
reasonably chose between two flawed data sets. Because
it was only under protest that Commerce later revalued
the lumber inputs using the NSO’s volume-based data,
deference to Commerce’s reasonable fact finding requires
that we reverse the Trade Court’s judgment about the
wood input valuation and remand for reinstatement of
Commerce’s First Redetermination on that matter. We do
not reach Yihua’s alternative argument about which
volume-based data should be used if weight-based data
could not be used.
2
In its cross-appeal, AFMC presents procedural and
substantive challenges to Commerce’s decision not to rely
LIFESTYLE ENTERPRISE, INC. v. US 17
on Diretso Design’s financial statements. Neither chal-
lenge is convincing.
AFMC contends the Trade Court could not properly
set aside Commerce’s initial reliance on those statements
and remand for reconsideration on the issue, because
Yihua did not adequately preserve its challenge to that
reliance at the agency level. We see no error in the Trade
Court’s consideration of this issue. By arguing to Com-
merce that certain record data regarding Diretso Design’s
operations in fact corresponded to a different company,
Yihua fairly presented to Commerce the basic contention
that the “Diretso” entity whose financial statements were
being used to value expenses and profits was not the same
“Diretso” found to be comparable to Yihua. Regardless of
the precise manner in which Yihua presented the issue,
which Commerce did not address in its Final Results, it
was not an abuse of discretion for the Trade Court to
remand for further consideration.
On the merits, we see no error in Commerce’s decision
on remand to exclude Diretso Design’s financial state-
ments from its calculation, or in the Trade Court’s deci-
sion to uphold Commerce’s determination. Substantial
evidence supports both AFMC’s contention that the
diretso.com website belongs to Diretso Design and Yihua’s
contention that the website also belongs to Diretso Trad-
ing (a parent or sister company). The indeterminate
ownership of the website alleged to establish Diretso
Design as a comparable company, coupled with the pres-
ence of six other usable financial statements from which
to calculate surrogate financial ratios, provided Com-
merce a sufficient basis for deciding not to rely on the
financial statements of Diretso Design. Accordingly, we
affirm the Trade Court’s decision upholding Commerce’s
decision about Diretso Design’s financial statements.
18 LIFESTYLE ENTERPRISE, INC. v. US
CONCLUSION
For the foregoing reasons, we reverse the Trade
Court’s decision to require the use of volume-based data
in valuing the lumber inputs, affirm the exclusion of
Diretso Design’s financial statements, and remand for
further proceedings consistent with this opinion.
Each party should bear its own costs.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED