Fresh Garlic Producers Association v. United States, 091917 USCIT, 14-00180

Docket Nº:14-00180
Opinion Judge: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 TRADI...
Attorney: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 Taos, NM, for consolidated plaintiffs Hebei Golden Bird Trading Co., Ltd., Qingdao Xintianfeng Foods Co., Ltd., Shenzhen Bainong ...
Judge Panel:Before: Jane A. Restani, Judge.
Case Date:September 19, 2017
Court:Court of International Trade
 
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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., and WEIFANG HONGQIAO INTERNATIONAL LOGISTICS 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.

No. 14-00180

Slip Op. 17-127

Court of Appeals of International Trade

September 19, 2017

Commerce's final results of redeterminations in antidumping reviews sustained.

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 Taos, 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., and Weifang Hongqiao International Logistics 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 Chad A. Readler, Acting 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.

OPINION

Restani, Judge.

Before the court is the U.S. Department of Commerce ("Commerce")'s Final Results of Second Redetermination Pursuant to Remand, Consol. Ct. No. 14-00180, ECF No. 115-1 ("18th AR Second Remand Results") concerning the eighteenth periodic administrative review ("18th AR") 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 (Dep't Commerce Nov. 16, 1994). Also before the court is Commerce's Final Results of Redetermination Pursuant to Remand, Ct. No. 15-00179, ECF No. 74-1 ("19th AR Remand Results") concerning the nineteenth periodic administrative review ("19th AR") of the same AD order.1 For the reasons stated below, Commerce's 18th AR Second Remand Results and 19th AR Remand Results are both sustained.

BACKGROUND

I. Eighteenth Administrative Review

In its final results for the 18th AR, 2 Commerce selected the Philippines as the primary surrogate country for a valuation of the factors of production ("FOPs") to calculate normal value. See 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 June 30, 2014) ("18th AR Final Results"); 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, 18th AR PD3 361 (June 23, 2014) ("18th AR I&D Memo"). The Philippines' 2011 fresh garlic production, however, comprised just 0.04% of the world market, ranking it forty-forth in the world. See Golden Bird SV Info. at Ex. 1 at 3, 18th AR PD 111 (June 26, 2013). As detailed in Fresh Garlic Producers Ass'n v. United States, 121 F.Supp.3d 1313, 1338-40 (CIT 2015) ("FGPA I") and Fresh Garlic Producers Ass'n v. United States, 180 F.Supp.3d 1233, 1242-45 (CIT 2016) ("FGPA II"), the court twice rejected Commerce's determination that the Philippines is a "significant producer."4

Following the court's second remand in FGPA II, Commerce reopened the administrative record for parties to propose new surrogate countries and to comment on the existing surrogate countries, India and Thailand. Reopening the Record at 1, 18th AR Remand II PD 2 (July 25, 2016). This decision came after two ex parte calls between Commerce and counsel for the Fresh Garlic Producers Association ("FGPA"), which calls Commerce noted on the record in short, written memoranda. Commerce Ex-Parte Mem., 18th AR Remand II PD 1 (July 22, 2016). In response to Commerce reopening the record, FGPA submitted data for a new surrogate country, Ukraine, and Xinboda updated the surrogate value data for India and Thailand. FGPA New Factual Data, 18th AR Remand II PD 3-19 (July 29, 2016); Xinboda Updated Factual Data, 18th AR Remand II PD 28-30 (Aug. 15, 2016). Xinboda filed a mandamus petition with the court attempting to keep the record closed, which petition the court denied. Fresh Garlic Producers Ass'n v. United States, 190 F.Supp.3d 1302, 1306-08 (CIT 2016). Subsequently, in its 18th AR Second Remand Results, Commerce selected Ukraine as the primary surrogate country, rejecting Thailand and India. 18th AR Second Remand Results at 31.5 Xinboda now challenges Commerce's decision to reopen the record, as well as Commerce's selection of Ukraine as the primary surrogate country.

II. Nineteenth Administrative Review

In the final results for the 19th AR, covering the POR from November 1, 2012 through October 31, 2013, the two mandatory respondents, Golden Bird and Jinxiang Hejia Co., Ltd., received total AFA rates of $4.71/kg. 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, 141-42 (Dep't Commerce June 15, 2015) ("19th AR Final Results"); Issues and Decision Memorandum for the Final Results of Antidumping Duty Administrative Review: Fresh Garlic from the People's Republic of China; 2012-2013 Administrative Review at 12, 19th AR PD 233 (June 5, 2015) ("19th AR I&D Memo"). As discussed in Shenzhen Xinboda Industrial Co., Ltd. v. United States, 180 F.Supp.3d 1305, 1321 (CIT 2016) ("Shenzhen Xinboda"), because the mandatory respondents received AFA rates and volume data for the mandatory respondents was not available, Commerce did not employ its usual method of averaging the mandatory respondents' rates to determine the dumping margin for non-investigated separate rate companies, which included Xinboda. See 19 U.S.C. § 1673d(c)(5); 19th AR I&D Memo at 7. Instead, Commerce calculated the separate rate for the 19th AR by using the separate rate of $1.82/kg from the prior AR, that is, the 18th AR Final Results. 19th AR I&D Memo at 7; 18th AR Final Results, 79 Fed. Reg. at 36, 723. In Shenzhen Xinboda, the court remanded Commerce's use of the 18th AR's separate rate to calculate the 19th AR's separate rate because Commerce had calculated the 18th AR's rate using the rejected Philippines as the primary surrogate country. See Shenzhen Xinboda, 180 F.Supp.3d at 1323. The court instructed that "Commerce shall reconsider the separate rate applied to Xinboda and the other non-examined companies [in the 19th AR], by either employing a different reasonable method to calculate the separate rate, such as reopening the record to examine new mandatory respondents, reopening the record to collect information from which to calculate a reliable separate rate, or if it results in a non-punitive rate for separate respondents, adjusting the separate rate assigned based on the results of the remand pursuant to FGPA II." Id. at 1324. On remand in the 19th AR, Commerce chose to continue basing the separate rate on the 18th AR's separate rate, calculated by Commerce to be $2.19/kg. See 19th AR Remand Results at 2; 18th AR Second Remand Results at 19. Xinboda now challenges Commerce's reliance on the 18th AR's separate rate to calculate the 19th AR's separate rate.

JURISDICTION AND STANDARD OF REVIEW

The court has jurisdiction pursuant to 28 U.S.C. § 1581(c). The court upholds Commerce's final results in an AD review unless it is "unsupported by substantial evidence on the record, or otherwise not in accordance with law[.]" 19 U.S.C. § 1516a(b)(1)(B)(i).

DISCUSSION

I. Eighteenth Administrative Review

A. Reopening the Record

In its 18th AR Second Remand Results...

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