Taian Ziyang Food Co. v. United States

Decision Date06 August 2013
Docket NumberSlip Op. 13–80.,Court No. 05–00399.
Citation918 F.Supp.2d 1345
PartiesTAIAN ZIYANG FOOD COMPANY, LTD., et al., Plaintiffs, v. UNITED STATES, Defendant, and Fresh Garlic Producers Association, et al., Defendant–Intervenors.
CourtU.S. Court of International Trade

OPINION TEXT STARTS HERE

Recognized as Invalid

19 C.F.R. § 351.408(c)(3).

Mark E. Pardo, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of Washington, D.C., argued for Plaintiffs Zhengzhou Harmoni Spice Co., Ltd., Jinan Yipin Corporation, Ltd., Linshu Dading Private Agricultural Products Co., Ltd., and Sunny Import & Export Co., Ltd.

Richard P. Schroeder, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., argued for Defendant. With him on the brief were Stuart F. Delery, Acting Assistant Attorney General, Civil Division, and Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Director, Commercial Litigation Branch. Of counsel on the brief was George Kivork, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, of Washington, D.C.

Michael J. Coursey, Kelley Drye & Warren, LLP, of Washington, D.C., argued for DefendantIntervenors Fresh Garlic Producers Association, Christopher Ranch L.L.C., The Garlic Company, Valley Garlic, and Vessey and Company, Inc. With him on the brief was John M. Herrmann.

OPINION

RIDGWAY, Judge:

In this consolidated action, the plaintiff Chinese producers and exporters of fresh garlic challenged the final results of the U.S. Department of Commerce's ninth administrative review of the antidumping duty order covering fresh garlic from the People's Republic of China. See generally Taian Ziyang Food Co. v. United States, 33 CIT ––––, 637 F.Supp.2d 1093 (2009) (“Taian Ziyang I ”); Taian Ziyang Food Co. v. United States, 35 CIT ––––, 783 F.Supp.2d 1292 (2011) (“Taian Ziyang II ”).

Taian Ziyang I analyzed each of the 10 issues that the plaintiff Chinese producers raised, sustaining Commerce's determination as to three of the issues and remanding the remaining seven to the agency for further consideration. See generally Taian Ziyang I, 33 CIT at ––––, ––––, 637 F.Supp.2d at 1100–02, 1166.

Taian Ziyang II reviewed Commerce's remand determination (the Second Remand Determination), filed pursuant to Taian Ziyang I. See generally Final Results of Redetermination Pursuant to Court Remand (“Second Remand Determination”).1 As to four of the seven issues addressed therein, there were no objections. Taian Ziyang II sustained the Second Remand Determination as to those four issues, and, upon analysis, remanded the other three to Commerce for further consideration. See generally Taian Ziyang II, 35 CIT at ––––, ––––, 783 F.Supp.2d at 1302, 1343.

Now pending before the court is Commerce's Third Remand Determination, filed pursuant to Taian Ziyang II. See generally Final Remand Results of Third Redetermination Pursuant to Remand (“Third Remand Determination”).2 The Domestic Producers ( i.e., the Fresh Garlic Producers Association and its four constituent members 3), defendant-intervenors in this action, challenge the Third Remand Determination as to two of the three issues addressed therein. See generally DefendantIntervenors' Comments on Third Remand Redetermination (“Def.-Ints.' Brief”); DefendantIntervenors' Reply to Plaintiffs' and Defendant's Response Comments on Third Remand Redetermination (“Def.-Ints.' Reply Brief”). For their part, the Government and the four GDLSK Plaintiffsi.e., Zhengzhou Harmoni Spice Co., Ltd. (“Harmoni”), Jinan Yipin Corporation, Ltd. (Jinan Yipin), Linshu Dading Private Agricultural Products Co., Ltd. (Linshu Dading), and Sunny Import & Export Co., Ltd. (“Sunny”)—urge that the Third Remand Determination be sustained in all respects. See generally Defendant's Response to Comments Regarding Redetermination Pursuant to Court Remand (“Def.'s Response Brief”); GDLSK Plaintiffs' Response Comments Regarding the Department's Third Remand Redetermination (“Pls.' Response Brief”).

Jurisdiction lies under 28 U.S.C. § 1581(c) (2000).4 For the reasons detailed below, Commerce's Third Remand Determination is sustained.

I. Background

Seven Chinese producers and exporters of fresh garlic brought this action to contest various aspects of the Final Results of Commerce's ninth administrative review of the antidumping duty order on fresh garlic from China, which covered the period from November 1, 2002 through October 31, 2003. See generally Taian Ziyang I, 33 CIT ––––, 637 F.Supp.2d 1093;Fresh Garlic from the People's Republic of China: Final Results of Antidumping Duty Administrative Review, 70 Fed.Reg. 34,082 (June 13, 2005) (“Final Results”); Notice of Amended Final Results of Antidumping Duty Administrative Review: Garlic from the People's Republic of China, 70 Fed.Reg. 56,639 (Sept. 28, 2005) (“Amended Final Results”); Final Results of Redetermination Pursuant to Court Remand (“First Remand Determination”).5

Taian Ziyang I analyzed each of the 10 issues that the Chinese producers raised, sustaining Commerce's determination as to three of the issues, and remanding the remaining seven to the agency for further consideration. See generally Taian Ziyang I, 33 CIT at ––––, ––––, 637 F.Supp.2d at 1100–02, 1166. Specifically, Taian Ziyang I sustained Commerce's use of “adverse facts available” in calculating the dumping margins for Taian Ziyang Food Company, Ltd. (Ziyang) and Taian Fook Huat Tong Kee Foodstuffs Co., Ltd. (“FHTK”). See id., 33 CIT at ––––, ––––, 637 F.Supp.2d at 1124, 1166.6Taian Ziyang I similarly sustained Commerce's valuation of cold storage (challenged by the GDLSK Plaintiffs), as well as Commerce's calculation of surrogate financial ratios (challenged by Jinxiang Dong Yun Freezing Storage Co., Ltd. (Dong Yun)). See id., 33 CIT at ––––, ––––, 637 F.Supp.2d at 1144, 1166. In contrast, Taian Ziyang I remanded for further consideration Commerce's valuation of certain “factors of production” necessary for the cultivation and export of fresh garlic—in particular, (1) garlic seed, (2) irrigation water, (3) labor, (4) leased land, (5) cardboard packing cartons, (6) plastic jars and lids, and (7) ocean freight. See id., 33 CIT at ––––, ––––, ––––, ––––, 637, ––––, ––––, ––––, 637 F.Supp.2d at 1127, 1133, 1138, 1141, 1151–52, 1157, 1162, 1166.

In its Second Remand Determination, Commerce revalued irrigation expenses, leased land, ocean freight, and labor. See Second Remand Determination at 1–2, 11–16, 16–40, 40–41, 50–53, 60–73, 78–79. On the other hand, Commerce continued to value garlic seed, cardboard packing cartons, and plastic jars and lids as it had in the Final Results. See id. at 1–2, 4–11, 41–46, 46–50, 54–60, 73–76, 76–78. As a result of its reconsideration in the course of the second remand, Commerce recalculated the weighted-average antidumping duty margin for Harmoni as 0.00% (down from 8.79%), for Jinan Yipin as 1.04% (down from 13.21%), for Linshu Dading as 4.34% (down from 7.97%), for Sunny as 4.22% (down from 9.17%), and for Dong Yun as 15.49% (down from 31.26%). See id. at 79; Final Results, 70 Fed.Reg. at 34,085; First Remand Determination at 19. FHTK's margin remained unchanged at 15.75%. See Second Remand Determination at 79; First Remand Determination at 19.7

Commerce's Second Remand Determination was the subject of Taian Ziyang II. See generally Taian Ziyang II, 35 CIT at ––––, 783 F.Supp.2d at 1292. As to four of the seven issues ( i.e., the surrogate values for garlic seed, irrigation costs, land lease costs, and ocean freight expenses), there were no objections to the Second Remand Determination, and Commerce's determinations were sustained. See generally id., 35 CIT at ––––, ––––, ––––, ––––, 783 F.Supp.2d at 1305, 1308, 1311, 1343 (sustaining Second Remand Determination as to garlic seed, irrigation costs, land lease costs, and ocean freight expenses, respectively). However, the agency's treatment of the three other issues— i.e., the surrogate value for cardboard packing cartons, the surrogate value for plastic jars and lids, and labor expenses—remained in dispute. In light of the GDLSK Plaintiffs' arguments and the Government's request for a voluntary remand, Taian Ziyang II once again remanded to Commerce the issue of labor costs. See generally id., 35 CIT at ––––, 783 F.Supp.2d at 1310. Similarly, the issues of cardboard packing cartons and plastic jars and lids also were remanded to Commerce yet again. See generally id., 35 CIT at ––––, ––––, 783 F.Supp.2d at 1333, 1339 (remanding issues of cardboard packing cartons, and plastic jars and lids, respectively).

In its Third Remand Determination, Commerce has now revised its calculation of the labor rate in accordance with the agency's new methodology. See Third Remand Determination at 1, 4–11 (relying on Antidumping Methodologies in Proceedings Involving Non–Market Economies: Valuing the Factor of Production: Labor, 76 Fed.Reg. 36,092 (June 21, 2011); also reconsidering valuation of labor data reflected in surrogate financial ratios, and concluding that no changes are necessary). In addition, to value cardboard packing cartons as well as plastic jars and lids for purposes of the Third Remand Determination, Commerce has implicitly adopted the fundamental reasoning of Taian Ziyang II and has therefore used the domestic Indian price quotes that the GDLSK Plaintiffs had placed on the administrative record, in lieu of the Indian import statistics that the agency had relied on in its prior determinations in this case. See Third Remand Determination at 1, 3–4, 11. 8 As a result of these changes, the Third Remand Determination now calculates the margin for each of the four GDLSK Plaintiffs ( i.e., Harmoni, Jinan Yipin, Linshu Dading, and Sunny) to be 0.0%.9

Although the Domestic Producers ( i.e., the Fresh Garlic Producers Association and its four constituent members) filed no comments on either the draft or final versions of...

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