180 F.Supp.3d 1233 (CIT. 2016), 14-00180, Fresh Garlic Producers Ass'n v. United States
|Citation:||180 F.Supp.3d 1233|
|Opinion Judge:||Jane A. Restani, Judge.|
|Party Name:||FRESH GARLIC PRODUCERS ASSOCIATION, CHRISTOPHER RANCH, L.L.C., THE GARLIC COMPANY, VALLEY GARLIC, and VESSEY AND COMPANY, INC., Plaintiffs, v. UNITED STATES, Defendant, 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, I|
|Attorney:||No. 14-00180 Michael J. Coursey, John M. Herrmann, II, and Joshua R. Morey, Kelley Drye & Warren, LLP, of Washington, DC, for plaintiffs. Robert T. Hume, Hume & Associates, LLC, of El Prado, NM, for consolidated plaintiffs Hebei Golden Bird Trading Co. Ltd., Qingdao Xintianfeng Foods Co., Ltd., S...|
|Case Date:||July 07, 2016|
|Court:||United States District Court, Federal Circuit|
Commerce's final results of redetermination in antidumping duty administrative review sustained in part and remanded in part.
Michael J. Coursey, John M. Herrmann, II, and Joshua R. Morey, Kelley Drye & Warren, LLP, of Washington, DC, for plaintiffs.
Robert T. Hume, Hume & Associates, LLC, of El Prado, NM, 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, and Robert T. Hume, Hume & Associates, LLC, of El Prado, NM, 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 was 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 Jinxiang Merry Vegetable Co., Ltd. and Cangshan Qingshui Vegetable Foods Co., Ltd.
Before: Jane A. Restani, Judge.
Jane A. Restani, Judge:
Currently before the court are the United States Department of Commerce's (" Commerce" ) Final Results of Redetermination Pursuant to Remand, ECF No. 88 (" Remand Results" ), concerning the eighteenth annual administrative review of the antidumping (" AD" ) duty order on fresh garlic from the People's Republic of China (" PRC" ). See 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). The court remanded this matter to Commerce for reconsideration and further explanation of Commerce's A.D. duty margin for one of the mandatory respondents, Hebei Golden Bird Trading Co. Ltd. (" Golden Bird" ), and Commerce's selection of the Philippines as the surrogate country. Fresh Garlic Producers Ass'n v. United States, 121 F.Supp.3d 1313, 1328, 1340 (CIT 2015) (" FGPA" ).
The court presumes familiarity with the facts of the case as discussed in FGPA, 121 F.Supp.3d at 1317-20; however, the facts relevant to the Remand Results are summarized below for ease of reference.
To calculate the dumping margin in A.D. duty cases involving non-market economies (" NME" ), Commerce compares the goods' normal value,1 derived from factors of production (" FOP" ) as valued in a surrogate market economy, to the goods' export price. 19 U.S.C. § 1677b(c). By statute, in selecting the surrogate country, Commerce, must use the " best available information," and choose a country " at a level of economic development comparable to that of the [NME, that is a] . . . significant producer of comparable merchandise." Id.
For the eighteenth review, covering the period of review (" POR" ) from November 1, 2011 through October 31, 2012, Commerce selected Shenzhen Xinboda Industrial Co., Ltd. (" Xinboda" ) and Golden Bird as the mandatory respondents. Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 77 Fed.Reg. 77,017, 77,020-22 (Dep't Commerce Dec. 31, 2012). In the 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, 36,722 (Dep't Commerce June 30, 2014) (" Final Results" ), Commerce selected total adverse facts available3 (" total AFA" ) for Golden Bird and the PRC-wide rate4 of $4.71/kg as Golden Bird's total AFA rate. Golden Bird appealed, and the court upheld Commerce's decision to select total AFA for Golden Bird. FGPA, 121 F.Supp.3d at 1320, 1327. The court, however, rejected Commerce's selection of the PRC-wide rate as Golden Bird's total AFA rate because Commerce had failed to make a finding that Golden Bird's separate rate certification was deficient or unreliable. Id. at 1328.
On remand, Commerce found, under protest, Golden Bird eligible for a separate rate. Remand Results at 14. Commerce reiterated its position that " the severity of Golden Bird's failure to cooperate and the centrality of the deficient response to the calculation of a dumping margin" sufficiently call into question the integrity of Golden Bird's information regarding its operation as a separate entity. Id. at 15 (quoting FGPA, 121 F.Supp.3d at 1326). Commerce, however, refused to make a specific finding regarding the deficiency of Golden Bird's separate rate information because it reasoned that such a finding could be reached only by " follow[ing] the same logic that the Department applied [previously] and [which] the Court rejected." Id. at 16. Commerce ultimately assigned Golden Bird a total AFA rate of $2.24/kg. Id. at 6. That margin represents Xinboda's highest transaction-specific margin from the instant review. Commerce selected such a rate by reasoning that " Golden Bird should 'not obtain a more favorable result by failing to cooperate than if it had cooperated fully.'" Id. (quoting Uruguay Round Agreements Act, Statement of Administrative Action, H.R. Doc. No. 103-316, vol. 1, at 870 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4199 (" SAA" )).
Golden Bird does not object to the assignment of a total AFA rate based on Xinboda's highest transaction-specific margin from the POR. Cmts. on Commerce Dep't's Final Results of Redetermination Pursuant to Remand 3, ECF No. 90 (" Golden Bird & QXF Cmts." ).5 The Fresh Garlic Producers Association, Christopher Ranch L.L.C., The Garlic Company, Valley Garlic, and Vessey and Company, Inc. (collectively, " FGPA" ) do oppose Commerce's separate rate determination in the Remand Results. Pls.' Cmts. on Dep't's Redetermination Pursuant to Ct. Order 2, ECF No. 91 (" FGPA Cmts." ). FGPA argues that Golden Bird's separate rate certification suffers from some of the same deficiencies as the sales information, namely that the same individual attests to the accuracy of both sets of documents. Id. at 2, attach. 1 at 2-3. Accordingly, FGPA reiterates its previous arguments supporting the assignment of the PRC-wide rate as Golden Bird's total AFA rate. Id. at 3, attach. 1 at 11-14.
In the Final Results, Commerce also selected the Philippines as the surrogate country for calculating FOPs. 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 5-10, A-570-831, (June 23, 2014), available at http://enforcement.trade.gov/frn/summary/prc/2014-15279-1.pdf (last visited June 30, 2016) (" I& D Memo" ). On initial appeal, 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" ), and Xinboda challenged Commerce's choice of the Philippines as the surrogate country, arguing that the Philippines is not a significant producer of fresh garlic and that the Philippine data was not the best available information. FGPA, 121 F.Supp.3d at 1336. In response, Commerce explained that the Philippines is a significant producer because the Philippines had a " noticeably or measurabl[y] large" amount of fresh garlic production during the POR. See I& D Memo at 8 n.22. Commerce deviated from its typical significant producer analysis where it takes into account " world production . . . and trade." Policy...
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