180 F.Supp.3d 1305 (CIT. 2016), 15-00179, Shenzhen Xinboda Industrial Co., Ltd. v. United States
|Citation:||180 F.Supp.3d 1305|
|Opinion Judge:||Jane A. Restani, Judge.|
|Party Name:||SHENZHEN XINBODA INDUSTRIAL CO., LTD., Plaintiff, v. UNITED STATES, Defendant, HEBEI GOLDEN BIRD TRADING CO., LTD., JINXIANG RICHFAR FRUITS & VEGETABLES CO., LTD., QINGDAO LIANGHE INTERNATIONAL TRADE CO., LTD., SHANDONG CHENHE INTERNATIONAL TRADING CO., LTD., and WEIFANG HONGQIAO INTERNATIONAL LOGISTICS CO., LTD., Consolidated Plaintiffs, FRESH GAR|
|Attorney:||No. 15-00179 Gregory S. Menegaz, deKieffer & Horgan, PLLC, of Washington, DC, argued for plaintiff. With him on the brief were J. Kevin Horgan, Alexandra H. Salzman, and Judith L. Holdsworth. Robert T. Hume, Hume & Associates, LLC, of El Prado, NM, argued for consolidated plaintiffs. Emma E. Bond...|
|Judge Panel:||Before: Jane A. Restani, Judge.|
|Case Date:||July 27, 2016|
|Court:||United States District Court, Federal Circuit|
Commerce's final results in antidumping duty administrative review sustained in part and remanded in part.
Gregory S. Menegaz, deKieffer & Horgan, PLLC, of Washington, DC, argued for plaintiff. With him on the brief were J. Kevin Horgan, Alexandra H. Salzman, and Judith L. Holdsworth.
Robert T. Hume, Hume & Associates, LLC, of El Prado, NM, argued for consolidated plaintiffs.
Emma E. Bond, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argued for defendant. With her 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.
Michael J. Coursey, Kelley Drye & Warren, LLP, of Washington, DC, argued for defendant-intervenors. With him on the brief were John M. Herrmann, II and Joshua R. Morey.
Before: Jane A. Restani, Judge.
This action challenges the Department of Commerce's (" Commerce" ) final results of the nineteenth 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 19th Antidumping Duty Administrative Review; 2012-2013, 80 Fed.Reg. 34,141, 34,141-44 (Dep't Commerce June 15, 2015) (" 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 by Chinese producers Hebei Golden Bird Trading Co., Ltd. (" Golden Bird" ), Jinxiang Richfar Fruits & Vegetables Co., Ltd., Qingdao Lianghe International Trade Co., Ltd., Shandong Chenhe International Trading Co., Ltd., and Weifang Hongqiao International Logistics Co., Ltd. (collectively, " Consolidated Plaintiffs" ), see Mem. in Supp. of Pls.' Mot. for J. on the Agency R., ECF No. 37 (" Golden Bird Br." ), and Shenzhen Xinboda Industrial Co., Ltd., (" Xinboda" ), see Pl. Shenzhen Xinboda Indus. Co., Ltd. Mem. in Supp. of Mot. for J. on the Agency R., ECF No. 31 (" Xinboda Br." ). For the reasons stated below, Commerce's Final Results are sustained in part and remanded in part.
On November 16, 1994, Commerce issued an A.D. 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). The nineteenth annual administrative review of that A.D. duty order was initiated on December 30, 2013, and covers the period of review (" POR" ) of November 1, 2012, through October 31, 2013.1 Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 78 Fed.Reg. 79,392, 79,393, 79,395-97 (Dep't Commerce Dec. 30, 2013) (" Initiation Notice" ). Commerce limited its review to two mandatory respondents, selecting the two largest producers by volume, Golden Bird and Jinxiang Hejia Co., Ltd. (" Hejia" ).2 Respondent Selection Mem. at 3-5, PD 61 (Apr. 28, 2014).
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 as valued in a surrogate market economy 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." 5 Id. at § 1677b(c)(4).
On June 25, 2014, five days prior to Commerce's deadline for questionnaire responses, Petitioners, the Fresh Garlic Producers Association (" FGPA" ), placed on the record information that alleged Golden Bird and Hejia's shipment volumes were not accurately reported in their Section A questionnaire responses. Pet'rs' Submission of New Factual Information at 2-6, PD 137 (June 25, 2014) (" Pet'rs' Allegations" ). Specifically, FGPA claimed that the mandatory respondents' reported shipment data was different from that reported by the General Administration of Customs of the PRC and that the shipment data included export volumes actually shipped by other Chinese exporters that were subject to the PRC-wide rate. See id. at 4-6. Following these allegations, Xinboda wrote to Commerce requesting that it be added as either an additional mandatory respondent or voluntary respondent, citing concerns that Commerce would not have " sufficient margins based on cooperating respondents who earn separate rates based on their actual data to apply to separate rate applicants." Xinboda's Req. for Selection as Respondent at 2, bar code 3212864-01 (July 1, 2014). Xinboda also claimed that the Petitioners' allegations called into question the accuracy of the data that was used to select the mandatory respondents. Id. at 3-4. Commerce rejected the request, noting that both mandatory respondents were still actively participating and that Xinboda had failed to submit in a timely fashion the responses necessary to be considered as a voluntary respondent. Commerce's Resp. to Xinboda Respondent Req. at 2-3, bar code 3220285-01 (Aug. 6, 2014). After being granted extensions, the final set of questionnaire responses for the mandatory respondents were ultimately due on June 27, 2014. See Grant of Extension for Golden Bird's Quest. Resps. at 1, bar code 3202818-01 (May 19, 2014); Grant of Extension for Hejia Quest. Resps. at 1, bar code 3210224-01 (June 19, 2014).
In August 2014, and also in response to FGPA's allegations, Commerce issued supplemental questionnaires to Golden Bird and Hejia, requesting complete Chinese Export Declaration Forms (" export declarations" ) and certain authenticated inspection certificates (" Phyto-sanitary certificates" ) to substantiate the mandatory respondents' declared export volumes. Suppl. Golden Bird Quest. at 1 & Attach. 1, bar code 3222078-01 (Aug. 15, 2014); Suppl. Hejia Quest. at 1 & Attach., PD 169 (Aug. 18, 2014).6 Golden Bird responded on September 5, 2014, providing a portion of the export declarations and Phyto-sanitary certificates requested. See Commerce's Golden Bird Analysis Mem. at 2, CD 106 (Dec. 1, 2014) (" Golden Bird Analysis Mem." ). On September 29, 2014, Commerce issued a Second Supplemental Questionnaire to Golden Bird requesting the remaining export declarations and Phyto-sanitary certificates. Second Suppl. Golden Bird Quest. at 1 & Attach., PD 195 (Sept. 29, 2014). Golden Bird submitted a response to the Second Supplemental Questionnaire on October 14, 2014, again providing only a portion of the total documentation requested. See Golden Bird Analysis Mem. at 2.
The preliminary results of the review were published on December 8, 2014. Fresh Garlic From the People's Republic of China: Preliminary Results of the Nineteenth Antidumping Duty Administrative Review; 2012-2013, 79 Fed.Reg. 72,625, 72,625-29 (Dep't Commerce Dec. 8, 2014) (" Preliminary Results" ). Commerce preliminarily determined that both Golden Bird and Hejia had failed to demonstrate their status as separate from the PRC-wide entity,7 and that the PRC-wide rate of $4.71/kg would be assigned as total adverse facts available (" total AFA" ).8 Id. at 72,625-27; see also Decision Memorandum for the Preliminary Results of the 2012-2013 Antidumping Duty Administrative Review: Fresh Garlic from the People's Republic of China at 10-20, A-570-831, (Dec. 1, 2014), available at http://enforcement.trade.gov/frn/summary/prc/ 2014-28688-1.pdf (last visited July 15, 2016) (" Preliminary I& D Memo" ). Commerce deemed seven companies, including Xinboda, eligible for a separate rate. Preliminary Results, 79 Fed.Reg. at 72,626; see also Preliminary I& D Memo at 9. Because the margins for all individually examined PRC producers were based solely on total AFA, Commerce assigned the separate rate respondents a rate of $1.82/kg, the dumping margin...
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