Hebei Golden Bird Trading Co. v. United States, Slip Op. 17-86
| Decision Date | 17 July 2017 |
| Docket Number | Slip Op. 17-86,Court No. 15-00182 |
| Parties | 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., Plaintiffs, v. UNITED STATES, Defendant, FRESH GARLIC PRODUCERS ASSOCIATION, CHRISTOPHER RANCH, L.L.C., THE GARLIC COMPANY, VALLEY GARLIC, and VESSEY AND COMPANY, INC., Defendant-Intervenors. |
| Court | U.S. Court of International Trade |
Before: Jane A. Restani, Judge
OPINION[Commerce's results of redetermination in antidumping periodic review are sustained.]
Robert T. Hume, Hume & Associates, LLC, of El Prado, NM, for plaintiffs.
Emma E. Bond, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for defendant. With her 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.
Michael J. Coursey, John M. Herrmann, II, and Joshua R. Morey, Kelley Drye & Warren, LLP, of Washington, DC, for defendant-intervenors.
Restani, Judge: Before the court is the U.S. Department of Commerce ("Commerce")'s Final Redetermination Pursuant to Court Remand Order, ECF No. 74-1 ("Remand Results")1 concerning the nineteenth periodic 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 (Dep't Commerce Nov. 16, 1994). The court previously remanded to Commerce the issue of whether mandatory respondent Hebei Golden Bird Trading Co., Ltd. ("Golden Bird") is eligible for a separate rate. Shenzhen Xinboda Industrial Co. v. United States, 180 F. Supp. 3d 1305, 1324 (CIT 2016) ("Xinboda"). For the reasons stated below, Commerce's Remand Results finding Golden Bird is not entitled to separate rate status are sustained.
The court presumes familiarity with the facts of the case as discussed in Xinboda, 180 F. Supp. 3d at 1308-12. For convenience, the facts relevant to this stage of the proceeding are summarized here. Following contestation by the parties of Commerce's original results, the court remanded the case to Commerce. Id. at 1324; see also 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 (Dep't Commerce June 15, 2015)("Final Results"). The court ruled that Commerce's decision that Golden Bird lacked independence from government control such that it was not entitled to a separate rate was unsupported by substantial evidence. Xinboda, 180 F. Supp. 3d at 1315-17.
In its Final Results, Commerce disregarded Golden Bird's separate rate information and applied the PRC-wide rate to Golden Bird as a total adverse facts available ("AFA") rate2 because it found that Golden Bird's questionnaire responses were not credible due to its failure to cooperate in providing certain Chinese Export Declaration Forms ("export declarations") and China Inspection Quality Bureau inspection certificates ("Phyto-sanitary certificates") requested by Commerce. Id. at 1311. The court sustained Commerce's application of total AFA because Golden Bird failed to act to the best of its ability by not furnishing the export declarations, which Golden Bird was required to maintain under Chinese law and were necessary for Commerce to substantiate Golden Bird's export volume. Id. at 1314-15. But, in reasoning that a determination of separate rate status is a distinct inquiry from application of total AFA, the court held that Commerce's treatment of Golden Bird as part of a PRC-wide entity due to its determination regarding the unreliability of Golden Bird's sales data was not supported by substantial evidence. Id. at 1316-17. The court noted that a mere finding that sales data is "unreliable" did not justify a wholesale rejection of Golden Bird's submissions where"extraordinary findings of bad faith and fraud . . . were not made." Id. at 1317 n.12. Although the court declined to decide how a finding of bad faith or fraud might impact the case, it stated that if Commerce "made an explicit finding that Golden Bird was engaged in . . . export funneling activities . . . based on record evidence" the finding "likely could be considered in selecting a total AFA rate for Golden Bird." Id. at 1317 nn.12-13. Were Commerce to make such a finding, the court noted "it may be appropriate . . . for Commerce to select a separate rate incorporating the PRC-wide rate, to deter this type of non-compliance." Id. at 1317 n.13. The court, however, did not preclude Commerce from denying Golden Bird separate rate status. Rather, it remanded the matter to Commerce to reconsider Golden Bird's eligibility for a separate rate, and ordered that Commerce, as it had previously, "may not rely on a finding of unreliable sales data." Id. at 1324. More was required.
Upon remand, Commerce reconsidered Golden Bird's eligibility for a separate rate and determined that it remains ineligible. Remand Results at 1. In its remand proceedings, Commerce reopened the record of the nineteenth administrative review to consider further evidence submitted in the twenty-first review of the same AD order by Zhengzhou Harmoni Spice Co., Ltd. ("Harmoni") regarding alleged duty evasion by Golden Bird, and it allowed interested parties to submit information and comments. Id. at 9; Placing Docs. on the R. of the Nineteenth Antidumping Duty Administrative Review of Fresh Garlic from the People's Republic of China at 1-2, PD 1 (Dec. 20, 2016) ("Doc. Placement Mem."). Harmoni's letter alleged that Golden Bird engaged in an extensive export funneling scheme from the seventeenth through the nineteenth periods of review ("PORs") and misrepresented the nature of its ownership to Commerce. Remand Results at 10. Harmoni attached to the letter a sworn declaration and associated evidence from the owner of a U.S. garlic distributor that claimed to purchase garlic from Golden Bird from 2010 to 2012 at a zero or near-zero rate. Id. at 10, 12; Doc. Placing Mem. at Attachs. 1-2 (hereinafter "Harmoni Fraud Allegation"). Commerce also explicitly considered the Fresh Garlic Producers Association ("FGPA")'s submission of General Administration of Customs of the PRC ("GACC") data, already on the record of this nineteenth POR, which shows a significant discrepancy between what Golden Bird reported to GACC and to U.S. Customs and Border Protection ("Customs") during the seventeenth through the nineteenth PORs. Remand Results at 3-4, 18-21.
After reviewing comments in response to the Harmoni Fraud Allegation, Commerce concluded that Golden Bird engaged in an extensive AD duty evasion scheme, in which it acted as a "service agent" for other Chinese companies subject to the PRC-wide rate to claim Golden Bird's lower rate. Id. at 1. Commerce relied on a substantial divergence in export and import volume, as evidenced by the GACC export quantity and Customs import quantity data, to support the conclusion that Golden Bird was apparently funneling the exports of other Chinese exporters. Id. at 3-4, 18-21. Commerce determined that "approximately sixty percent of all entries during the period of review were exported by companies subject to the PRC-wide cash deposit rate, but entered at a much lower rate or zero rate, including Golden Bird's." Id. at 1. Commerce noted that Golden Bird was still unable to provide more than a fraction of the export declarations and Phyto-sanitary certificates Commerce requested to determine whether Golden Bird was the exporter and that Golden Bird offered no explanation for the discrepancy in the GACC and Customs data. Id. at 4-5, 17. Citing the Harmoni Fraud Allegation and declaration that Commerce partially corroborated,3 Commerce determined that Golden Bird misrepresented its export volume and the nature of its ownership and operations to Commerce in bad faith and perpetrated fraud on the proceeding. Id. at 21, 24. Commerce noted that the record evidence suggested that Golden Bird misrepresented matters relating to corporate control during the POR, but Commerce stated it was unable to corroborate all aspects of the allegations due to resource constraints and "therefore, [did] not draw[] specific conclusions" as to corporate control. Id. at 21, 25-26.4 Commerce, however, did reason that it was unable to determine which entities controlled specific exports because a majority of Golden Bird's purported exports were actually those of other Chinese exporters subject to the PRC-wide rate. Id. at 25-26. Commerce thus explained that Golden Bird's misrepresentations were pervasive, which it states justifies its rejection of Golden Bird's separate rate submissions as unreliable and incomplete, its finding that Golden Bird failed to cooperate, and its determination that Golden Bird was part of the PRC-wide entity. Id. at 1-2, 19, 24-25.
Golden Bird challenges Commerce's finding that it engaged in fraud and the consequent application of the PRC-wide rate because it alleges Commerce improperly considered unreliableand biased evidence, specifically the Harmoni Fraud Allegation and the supporting declaration, even though those documents were originally submitted on the record of a different review. Cmts. on Commerce Department's Final Results of Redetermination Pursuant to Remand 12-13, ECF No. 77 ("Golden Bird Cmts."). Golden Bird also argues that Commerce infringed on its Fifth Amendment due process rights and abused the discretion applicable to the administrative protective order ("APO") in this case when it denied Golden Bird access to and sufficient opportunity to respond to portions...
To continue reading
Request your trial