Fresh Garlic Producers Ass'n v. United States
| Citation | 121 F.Supp.3d 1313 |
| Decision Date | 30 November 2015 |
| Docket Number | Consol. Court No. 14–00180,Slip Op. 15–133 |
| Parties | Fresh Garlic Producers Association, Christopher Ranch, L.L.C., The Garlic Company, Valley Garlic, and Vessey and Company, Inc., Plaintiffs, Hebei Golden Bird Trading Co. Ltd., Chengwu County Yuanxiang Industry & Commerce Co., Ltd., Qingdao Xintianfeng Foods Co., Ltd., Shenzhen Bainong Co., Ltd., Yantai Jinyan Trading, Inc., Jining Yifa Garlic Produce Co., Ltd., Jinan Farmlady Trading Co., Ltd., Weifang Hongqiao International Logistics Co., Ltd., and Shijiazhuang Goodman Trading Co., Ltd., Consolidated Plaintiffs, v. United States, Defendant, Shenzhen Xinboda Industrial Co., Ltd., Jinxiang Merry Vegetable Co., Ltd., and Cangshan Qingshui Vegetable Foods Co., Ltd., Defendant–Intervenors. |
| Court | U.S. Court of International Trade |
Michael J. Coursey and John M. Herrmann, II, Kelley Drye & Warren, LLP, of Washington, DC, for plaintiffs.
Robert T. Hume, Hume & Associates, LLC, of Ojai, CA, for consolidated plaintiffs Hebei Golden Bird Trading Co., Ltd., Qingdao Xintianfeng Foods Co., Ltd., Shenzhen Bainong Co., Ltd., Yantai Jinyan Trading, Inc., Jining Yifa Garlic Produce Co., Ltd., Jinan Farmlady Trading Co., Ltd., Weifang Hongqiao International Logistics Co., Ltd., and Shijiazhuang Goodman Trading Co., Ltd.
Yingchao Xiao and Jianquan Wu, Lee & Xiao, of San Marino, CA, for consolidated plaintiff Chengwu County Yuanxiang Industry & Commerce Co., Ltd.
Richard P. Schroeder, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for defendant. With him on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel on the brief were Justin R. Becker, Senior Attorney, and Khalil N. Gharbieh, Attorney, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce.
Gregory S. Menegaz, J. Kevin Horgan, and Alexandra H. Salzman, deKieffer & Horgan PLLC, of Washington, DC, for defendant-intervenor Shenzhen Xinboda Industrial Co., Ltd.
John J. Kenkel, deKieffer & Horgan PLLC, of Washington, DC, for defendant-intervenors Jianxiang Merry Vegetable Co., Ltd. and Cangshan Qingshui Vegetable Foods Co., Ltd.
This action challenges the Department of Commerce's ("Commerce") final results from the eighteenth administrative review of the antidumping ("AD") duty order on fresh garlic from the People's Republic of China ("PRC"). Fresh Garlic from the People's Republic of China: Final Results and Partial Rescission of the 18th Antidumping Duty Administrative Review; 2011–2012, 79 Fed.Reg. 36,721 (Dep't Commerce Jun. 30, 2014)("Final Results "). Before the court are the motions for judgment on the agency record pursuant to U.S. Court of International Trade ("CIT") Rule 56.2 and accompanying memoranda in support of Chinese producers Shijiazhuang Goodman Trading Co., Ltd. ("Goodman"); Jinan Farmlady Trading Co., Ltd., Qingdao Xintianfeng Foods Co., Ltd., Shenzhen Bainong Co., Ltd., Jining Yifa Garlic Produce Co., Ltd., Weifang Hongqiao International Logistics Co., Ltd., Yantai Jinyan Trading, Inc. (collectively, "QXF"); Hebei Golden Bird Trading Co. Ltd. ("Golden Bird"), and Shenzhen Xinboda Industrial Co., Ltd. ("Xinboda"). See Mem. in Supp. of the Mot. of Pl. Shijiazhuang Goodman Trading Co., Ltd. for J. on the Agency R., ECF No. 31 ("Goodman Br."); Mem. in Supp. of Mot. for J. on the Agency R. Filed by Qingdao Xintianfeng Foods Co., Ltd., et al., ECF No. 32 ("QXF Br."); Mem. in Supp. of the Mot. of Pl. Hebei Golden Bird Trading Co. Ltd. for J. on the Agency R., ECF No. 43 ("Golden Bird Br."); Consol. Pl. Shenzhen Xinboda Indus. Co., Ltd. Mem. in Supp. of Mot. for J. on the Agency R., ECF No. 44 ("Xinboda Br."). Also before the court is a motion filed by the Fresh Garlic Producers' Association and its individual members, Christopher Ranch L.L.C., Valley Garlic, The Garlic Company, and Vessey and Company, Inc. (collectively, "FGPA"). Mem. of Law in Supp. of Pls.' Mot. for J. on the Agency R., DE 41 ("FGPA Br."). For the reasons stated below, Commerce's Final Results are sustained in part and remanded in part.
In November 1994, Commerce issued an AD duty order covering fresh garlic from the PRC. Antidumping Duty Order: Fresh Garlic from the People's Republic of China, 59 Fed.Reg. 59,209, 59,209 (Dep't Commerce Nov. 16, 1994). Following requests from several interested parties, Commerce initiated its eighteenth administrative review of that order on December 31, 2012, with a period of review ("POR") of November 1, 2011, through October 31, 2012.1 Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 77 Fed.Reg. 77,017, 77,019 –22 (Dep't Commerce Dec. 31, 2012) ("Initiation Notice "). On April 15, 2013, Commerce selected as mandatory respondents the two largest exporters by volume, Golden Bird and Xinboda. Decision Memorandum for the Preliminary Results of the 2011–2012 Antidumping Duty Administrative Review: Fresh Garlic from the People's Republic of China at 3, A–570–831, (Dec. 16, 2013), available at http://enforcement.trade.gov/frn/summary/prc/2013–30660–1.pdf (last visited Nov. 18, 2015) ("Preliminary I & D Memo "). Commerce issued the preliminary results of its administrative review on December 24, 2013, assigning weighted-average margins (based on dollars per kilogram) of $1.17 for Golden Bird, $1.76 for Xinboda, $1.47 for QXF and other separate rate respondents, and $4.71 for the PRC-wide entity.2 Fresh Garlic from the People's Republic of China: Preliminary Results and Partial Rescission of the 18th Antidumping Duty Administrative Review; 2011–2012, 78 Fed.Reg. 77,653, 77,654 (Dep't Commerce Dec. 24, 2013)("Preliminary Results ").
The PRC is considered by Commerce to be a non-market economy ("NME"). In calculating a dumping margin for products from an NME country, Commerce compares the goods' normal value,3 derived from factors of production ("FOPs") as valued in a surrogate market economy ("ME") country, to the goods' export price.4 Commerce must use the "best available information" in selecting surrogate data. 19 U.S.C. § 1677b(c)(1)(B) (2012). The surrogate data must "to the extent possible" be from a market economy country that is "at a level of economic development comparable to that of the nonmarket economy country" and is a "significant producer[ ] of comparable merchandise." Id. at § 1677b(c)(4).
In May 2013, Commerce placed on the record a list of potential surrogate countries based on economic comparability to the PRC, which included Colombia, Costa Rica, Indonesia, the Philippines, South Africa, and Thailand. Preliminary I & D Memo at 9. Commerce compiled this list based on World Bank per capita gross national income ("GNI") data. See id. at 9–10. Next, Commerce narrowed its list by identifying countries that it considered to be significant producers of fresh garlic. Id. at 10. To this end, Commerce eliminated Costa Rica due to its lack of garlic production in 2011 and South Africa because of conflicting data concerning whether or not it had fresh garlic production in 2011. Id. at 10–11. Commerce then determined that of the remaining surrogate countries, the Philippines offered the best quality data, and selected it as the surrogate country. Id. at 12.
With respect to the calculation of surrogate values, in its preliminary determination, Commerce excluded from the pricing data all imports from NME countries and countries that maintain broadly available, non-industry specific export subsidies. Id. at 17. To value the raw garlic bulb input, Commerce relied on farm gate prices,5 and for labor, Commerce relied on data from the International Labor Organization ("ILO"). Id. at 18.
In April 2014, after the Preliminary Results, but before the Final Results, FGPA alleged that Golden Bird had misreported its fresh garlic sales for the POR. Issues and Decision Memorandum for the Final Results of Antidumping Duty Administrative Review: Fresh Garlic from the People's Republic of China; 2011–2012 Administrative Review at 2, A–570–831, (Jun. 23, 2014), available at http://enforcement.trade.gov/frn/summary/prc/2014–15279–1.pdf (last visited Nov. 18, 2015) ("I & D Memo "). In the Final Results, issued on June 30, 2014, Commerce determined that it was within its discretion to accept FGPA's untimely allegations. Id. at 30–31; Final Results, 79 Fed.Reg. at 36,722. After issuing a supplemental questionnaire, which Golden Bird did not complete to Commerce's satisfaction, Commerce selected total adverse facts available ("total AFA")6 for Golden Bird. I & D Memo at 33. Commerce selected the PRC-wide rate of $4.71 as Golden Bird's total AFA rate. Id. at 39.
For the Final Results, Commerce continued to use the Philippines as the surrogate country. Id. at 10. Commerce also continued to exclude NME country and export subsidy country data from the import statistics used to calculate surrogate values. Id. at 14–15. Additionally, Commerce continued to rely on ILO data to calculate the labor surrogate value and farm gate prices to calculate the raw garlic bulb surrogate value.Id. at 17, 21. Finally, Commerce determined that net weight, as opposed to gross weight, was more accurate for calculating surrogate values for Philippine importers' total input costs for fresh garlic production. Id. at 18–19. The Final Results assigned dumping margins of $1.82 to Xinboda, QXF, and other separate rate respondents, and $4.71 for the PRC-wide entity, which included Golden Bird. See Final Results, 79 Fed.Reg. at 36,723.
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