Jinan Yipin Corp., Ltd. v. U.S.
| Decision Date | 15 November 2007 |
| Docket Number | Court No. 04-00240.,Slip Op. 07-168. |
| Citation | 526 F.Supp.2d 1347 |
| Parties | JINAN YIPIN CORPORATION, LTD., and Shandong Heze International Trade and Developing Company, Plaintiffs, v. UNITED STATES, Defendant, and 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 |
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, LLP (Bruce M. Mitchell, Mark E. Pardo, Richard A. Burns, and Paul G. Figueroa), for plaintiff Jinan Yipin Corporation, Ltd.
Lee & Xiao (Yingchao Xiao), for plaintiff Shandong Heze International Trade and Developing Company.
Peter D. Keisler, Acting Attorney General, Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Richard P. Schroeder and Mark T. Pittman); Scott D. McBride and Amanda L. Blaurock, Office of Chief Counsel for Import Administration, United States Department of Commerce, of counsel, for defendant.
Kelley Drye Collier Shannon (Michael J. Coursey and Adam H. Gordon), for defendant-intervenors Fresh Garlic Producers Association, Christopher Ranch, L.L.C. The Garlic Company, Valley Garlic, and Vessey and Company, Inc.
Before: Timothy C. Stanceu, Judge.
PUBLIC*
Plaintiffs Jinan Yipin Corporation, Ltd. ("Jinan Yipin") and Shandong Heze International Trade and Developing Company ("Shandong") contest certain aspects of a final determination ("Final Results") issued by the International Trade Administration, United States Department of Commerce ("Commerce" or "the Department") in the eighth administrative review of the antidumping duty order on fresh garlic ("subject merchandise") imported from the People's Republic of China ("China" or the "PRC"). See Fresh Garlic From the People's Republic of China: Final Results of Antidumping Duty Administrative Review and New Shipper Reviews, 69 Fed. Reg. 33,626 (Jun. 16, 2004) ("Final Results").1 Before the court are Jinan Yipin's and Shandong's motions for judgment upon the agency record under USCIT Rule 56.2.
In support of its motion, plaintiff Jinan Yipin contends that Commerce acted contrary to law: (1) in applying, through the use of the "facts otherwise available" and "adverse inferences" provisions of 19 U.S.C. § 1677e (2000), an antidumping duty rate of 376.67 percent to the sales of subject merchandise that Jinan Yipin's U.S. sales affiliate made to "Houston Seafood," one of its customers in the United States, based on possible affiliation between Jinan Yipin and Houston Seafood; (2) when, in calculating the U.S. affiliate's indirect selling expenses, Commerce increased the indirect selling expenses reported by Jinan Yipin based on a resort to facts otherwise available and adverse inferences; (3) in adjusting the selling price of Jinan Yipin's subject merchandise for certain inspection fees which, according to plaintiffs, would not have been incurred but for the existence of the antidumping duty order; and (4) in determining surrogate values for garlic seed, water, and packing cartons.2 Jinan Yipin's Rule 56.2 Mot. for J. Upon the Agency R. ("Jinan Yipin's Mot."); Br. in Supp. of Jinan Yipin's Rule 56.2 Mot. for J. Upon the Agency R. 2-4 ("Jinan Yipin's Br. in Supp."). Plaintiff Shandong, an exporter of subject merchandise, joins in Jinan Yipin's arguments challenging the determination of surrogate values for garlic seed, water, and packing cartons. Shandong Heze's Rule 56.2 Mot. for J. Upon the Agency R. 1-2 ("Shandong's Mot."); Shandong Heze's Letter in Supp. of Jinan Yipin's Rule 56.2 Mot. for J. Upon the Agency R. 1.
Defendant United States argued initially that the Final Results are fully in accordance with law and therefore should be sustained in all respects. Def.'s Mem. in Opp'n to Pls.' Rule 56.2 Mots. for J. Upon the Agency R. 1 (Def.'s Mem. in Opp'n). In a post-hearing submission, defendant changed its apparent position with respect to the issue of possible affiliation between Jinan Yipin and Houston Seafood, requesting that the court grant a voluntary remand for the limited purpose of allowing Commerce to investigate that issue further. Def.'s Supplemental Br. in Resp. to the Court's Questions of May 22, 2006 at 2 ("Def.'s Supplemental Br."). Jinan. Yipin opposes such a remand. Reply of Jinan Yipin to Def.'s Post-Hearing Br. 9-10 ("Jinan Yipin's Reply to Def.'s Supplemental Br.").
Fresh Garlic Producers Association and its individual members, Christopher Ranch, L.L.C., The Garlic Company, Valley Garlic, and Vessey and Company, Inc. (collectively "defendant-intervenors"), are domestic producers of garlic that were petitioners in the antidumping duty investigation resulting in the antidumping duty order. They intervened in support of the position of defendant United States in this litigation but did not submit briefs or participate in the hearing conducted by the court on plaintiffs' motion for judgment upon the agency record.
The court concludes that the Final Results are, in some respects, unsupported by substantial evidence on the agency record and otherwise contrary to law. Accordingly, the court will remand the matter to Commerce for reconsideration and redetermination in accordance with this Opinion and Order.
Commerce issued its antidumping duty order on imports of fresh garlic from China in 1994. Antidumping Duty Order: Fresh Garlic From the People's Republic of China, 59 Fed.Reg. 59,209 (Nov. 16, 1994). In 2002, Commerce conducted a new shipper review of Jinan Yipin. In that review, Commerce determined that "[t]he weighted-average dumping margin for subject merchandise manufactured and exported by Jinan Yipin for the period November 1, 2000, through October 31, 2001 is 0.00 percent." Fresh Garlic From the People's Republic of China: Final Results of Antidumping Duty New Shipper Review, 67 Fed.Reg. 72,139, 72,140 (Dec. 4, 2002) ("Jinan Yipin New Shipper Review"). Commerce subsequently initiated the administrative review at issue in this action, the eighth administrative review, for the period November 1, 2001 to October 31, 2002 ("period of review" or "POR") and subjected to that review entries of subject merchandise exported by Jinan Yipin and Shandong. Initiation of Antidumping and Countervailing Duty Admin. Reviews, 67 Fed.Reg. 78,772, 78,772-73 (Dec. 26, 2002).
Commerce issued the preliminary results of the eighth administrative review in December 2003 ("Preliminary Results"). See Fresh Garlic from the People's Republic of China: Preliminary Results of Antidumping Duty Admin. Review and New Shipper Reviews, 68 Fed.Reg. 68,868 (Dec. 10, 2003) ("Preliminary Results"). In the Preliminary Results, Commerce preliminarily assigned to Jinan Yipin a weighted average percentage antidumping duty margin of 168.06 percent. Preliminary Results, 68 Fed.Reg. at 68,873. Commerce further preliminarily determined that Shandong did not make sales of subject merchandise below normal value for the period of review. Id.
Commerce issued the Final Results in June 2004. Final Results, 69 Fed.Reg. 33,626. Commerce recalculated the weighted average percentage margin for entries of Jinan Yipin's merchandise, reducing it to 115.81 percent. Id. at 33,629. Contrary to the Preliminary Results, Commerce also determined that Shandong had sold merchandise at prices below normal value. Commerce calculated a weighted average percentage antidumping duty margin of 43.30 percent for Shandong's merchandise. Id.
Jinan Yipin and Shandong each commenced an action under 19 U.S.C. § 1516a (2000) to contest the Final Results. The court consolidated the cases. Each plaintiff moves for judgment upon the administrative record.
The court exercises jurisdiction pursuant to 28 U.S.C. § 1581(c) (2000), under which the Court of International Trade is granted exclusive jurisdiction of any civil action commenced under 19 U.S.C. § 1516a. 28 U.S.C. § 1581(c). The court reviews the Final Results on the basis of the agency record. See 28 U.S.C. § 2640(b) (2000); 19 U.S.C. § 1516a(b)(1)(B)(i). Upon such review, the court must "hold unlawful any determination, finding, or conclusion found ... to be unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B)(i). Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938).
The court addresses below the following issues that plaintiff Jinan Yipin raised in its motion for judgment upon the agency record: (A) whether Commerce lawfully applied "facts otherwise available" and "adverse inferences" under 19 U.S.C. § 1677e when it applied an antidumping duty rate of 376.67 percent to the sales of subject merchandise made by the U.S. affiliate of Jinan Yipin to Houston Seafood; (B) whether Commerce, in calculating the U.S. affiliate's indirect selling expenses, lawfully resorted to facts otherwise available and adverse inferences to increase the indirect selling expenses reported by Jinan Yipin; (C) whether Commerce lawfully adjusted the constructed export price of Jinan Yipin's subject merchandise to account for certain inspection fees; and (D) whether Commerce lawfully determined surrogate values for garlic seed, water, and packing cartons,
Finally, the court considers Shandong's challenge to Commerce's determination of surrogate values for garlic seed, water, and packing cartons. In this context the court addresses defendant's arguments that Shandong's motion does not comply with the court's Rules, that Shandong failed to exhaust its administrative remedies, and that Shandong is not entitled to relief because Jinan Yipin's arguments are company-specific and therefore...
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