Jinan Yipin Corp. v. United States

• Decision Date: 28 March 2014
• Docket Number: Slip Op. 14–34.,Court No. 06–00189.
• Citation: 971 F.Supp.2d 1296
• Parties: JINAN YIPIN CORPORATION, LTD., Linshu Dading Private Agricultural Products Co., Ltd., and Sunny Import and Export Co., Ltd., 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

971 F.Supp.2d 1296

JINAN YIPIN CORPORATION, LTD., Linshu Dading Private Agricultural Products Co., Ltd., and Sunny Import and Export Co., Ltd., Plaintiffs,

v. UNITED STATES, Defendant,andFresh Garlic Producers Association, Christopher Ranch, L.L.C., The Garlic Company, Valley Garlic, and Vessey and Company, Inc., Defendant–Intervenors.

Slip Op. 14–34. Court No. 06–00189.

United States Court of International Trade.

March 28, 2014.

Mark E. Pardo, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of Washington, D.C., argued for Plaintiffs.

Richard P. Schroeder, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., argued for Defendant. With him on the brief were Stuart F. Delery, Assistant Attorney General, Civil Division, and Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Director, Commercial Litigation Branch. Of counsel on the brief was George Kivork, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, of Washington, D.C.

Michael J. Coursey, Kelley Drye & Warren, LLP, of Washington, D.C., argued for Defendant–Intervenors. With him on the brief was John M. Herrmann.

OPINION

RIDGWAY, Judge:

Seven plaintiff Chinese producers and exporters of fresh garlic commenced this action to challenge the final results of the U.S. Department of Commerce's tenth administrative review of the antidumping duty order covering fresh garlic from the People's Republic of China. See generallyFresh Garlic from the People's Republic of China: Final Results and Partial Rescission of Antidumping Duty Administrative Review and Final Results of New Shipper Review, 71 Fed.Reg. 26,329 (May 4, 2006) (“Final Results”); see also Issues and Decision Memorandum for the Administrative Review and New Shipper Reviews of the Antidumping Duty Order on Fresh Garlic from the People's Republic of China (April 26, 2006) (Pub.Doc. No. 462) (“Issues and Decision Memorandum”); Zhengzhou Harmoni Spice Co. v. United States, 33 CIT 453, 617 F.Supp.2d 1281 (2009) (“Jinan Yipin I ”); Jinan Yipin Corp. v. United States, 35 CIT ––––, 800 F.Supp.2d 1226 (2011) (“Jinan Yipin II ”).

Jinan Yipin I analyzed the seven issues raised by the plaintiff Chinese producers/exporters, sustaining Commerce's determination as to two of the issues and remanding the remaining five to the agency. See generally Jinan Yipin I, 33 CIT at 458, 514–15, 617 F.Supp.2d at 1289, 1334.Jinan Yipin II reviewed Commerce's First Remand Determination, filed pursuant to Jinan Yipin I. See generally Final Results of Redetermination Pursuant to Court Remand (“First Remand Determination”). As to one of the five issues addressed therein, there were no objections. Jinan Yipin II sustained the First Remand Determination as to that issue, and, upon analysis, remanded the other four to Commerce for further consideration. See generally Jinan Yipin II, 35 CIT at ––––, ––––, 800 F.Supp.2d at 1235, 1315–16.

Now pending before the court is Commerce's Second Remand Determination, filed pursuant to Jinan Yipin II. See generally Final Remand Results of Redetermination Pursuant to Second Remand (“Second Remand Determination”). The Domestic Producers ( i.e., the Fresh Garlic Producers Association and its four constituent members),¹ Defendant–Intervenors in this action, challenge the Second Remand Determination as to one of the four issues addressed therein. See generally Defendant–Intervenors' Comments Regarding Second Remand Redetermination (“Def.-Ints.' Brief”); Defendant–Intervenors' Reply Comments Regarding Second Remand Redetermination (“Def.-Ints.' Reply Brief”). For their part, the Government and the three Plaintiff Chinese producers/exporters— i.e., Jinan Yipin Corporation, Ltd. (“Jinan Yipin”), Linshu Dading Private Agricultural Products Co., Ltd. (“Linshu Dading”), and Sunny Import and Export Co., Ltd. (“Sunny”) (collectively, the “Chinese Producers”)—urge that the Second Remand Determination be sustained in all respects. See Defendant's Response to Comments Regarding Redetermination Pursuant to Court Remand (“Def.'s Response Brief”) at 1–2, 16; Plaintiffs' Response to Defendant–Intervenors' Comments Regarding Second Remand Redetermination (“Pls.' Response Brief”) at 6.

Jurisdiction lies under 28 U.S.C. § 1581(c) (2000).² For the reasons detailed below, Commerce's Second Remand Determination is sustained.

I. Background

Seven Chinese producers and exporters of fresh garlic brought this action to contest various aspects of the Final Results of Commerce's tenth administrative review of the antidumping duty order on fresh garlic from China, which covered the period from November 1, 2003 through October 31, 2004. See generally Jinan Yipin I, 33 CIT 453, 617 F.Supp.2d 1281;Final Results, 71 Fed.Reg. 26,329.

Jinan Yipin I analyzed each of the seven issues that the plaintiff Chinese producers/exporters raised, sustaining Commerce's determination as to two issues and remanding the other five for further consideration. See generally Jinan Yipin I, 33 CIT at 458, 514–15, 617 F.Supp.2d at 1289, 1334.³ Specifically, Jinan Yipin I sustained Commerce's use of the agency's intermediate input methodology to value raw garlic bulbs. See id., 33 CIT at 458, 458–66, 514, 617 F.Supp.2d at 1289, 1289–95, 1334.Jinan Yipin I similarly sustained Commerce's surrogate financial ratios against the Chinese producers' allegations of “double-counting” of certain labor-related expenses ( i.e., “provident fund” and “gratuity” expenses). See id., 33 CIT at 458, 506–14, 514, 617 F.Supp.2d at 1289, 1327–34, 1334. In contrast, Jinan Yipin I remanded for further consideration Commerce's valuation of certain “factors of production” necessary for the cultivation and export of fresh garlic—in particular, (1) raw garlic bulbs, (2) labor, (3) ocean freight, (4) cardboard packing cartons, and (5) plastic jars and lids. See id., 33 CIT at 458, 466–73, 473–80, 481–87, 487–98, 498–506, 514–15, 617 F.Supp.2d at 1289, 1295–1301, 1301–07, 1307–12, 1312–21, 1321–1327, 1334.⁴

In its First Remand Determination, Commerce revalued raw garlic bulbs, labor, and ocean freight. See First Remand Determination at 5–15, 15–38, 38–41. On the other hand, Commerce continued to value cardboard packing cartons and plastic jars and lids as it had in the Final Results. See id. at 41–46, 46–50, 68–71, 71–74. As a result of its reconsideration in the course of the first remand, Commerce recalculated the weighted-average antidumping duty margin for Jinan Yipin as 55.18% (up from 29.52%), for Linshu Dading as 39.51% (up from 22.47%), and for Sunny as 26.67% (up from 10.52%). See id. at 74–75; Final Results, 71 Fed.Reg. at 26,332.

Commerce's First Remand Determination was the subject of Jinan Yipin II. See generally Jinan Yipin II, 35 CIT at ––––, 800 F.Supp.2d at 1226. In the absence of any objections to the First Remand Determination's treatment of the surrogate value for ocean freight, Commerce's determination on that issue was sustained. See generally id., 35 CIT at ––––, ––––, ––––, 800 F.Supp.2d at 1235–36, 1276–79, 1315 (sustaining First Remand Determination as to ocean freight expenses). However, the agency's treatment of the four remaining issues— i.e., the surrogate values for raw garlic bulbs, labor expenses, cardboard packing cartons, and plastic jars and lids—remained in dispute. In light of the Chinese Producers' arguments and the Government's request for a voluntary remand, Jinan Yipin II once again remanded to Commerce the issue of labor expenses. See generally id., 35 CIT at ––––, ––––, ––––, 800 F.Supp.2d at 1236, 1274–76, 1315–16. Similarly, the issues of the valuation of raw garlic bulbs, cardboard packing cartons, and plastic jars and lids also were remanded to Commerce yet again. See generally id., 35 CIT at ––––, ––––, ––––, ––––, 800, 800 F.Supp.2d at 1236, 1236–74, 1279–1307, 1307–15, 1315–16.

In its Second Remand Determination, Commerce has revalued raw garlic bulbs, using data from the Indian Agricultural Marketing Information Network (“Agmarknet”) for garlic grown in the five “long-day zone” states of India. See Second Remand Determination at 1, 10, 12–17, 31, 36. Commerce also has now recalculated the surrogate labor rate in accordance with the agency's revised methodology. See id. at 1, 24–31, 38 (relying on Antidumping Methodologies in Proceedings Involving Non–Market Economies: Valuing the Factor of Production: Labor, 76 Fed.Reg. 36,092 (June 21, 2011); also reconsidering valuation of labor data reflected in surrogate financial ratios, and revising average surrogate financial ratios accordingly). In addition, to value cardboard packing cartons as well as plastic jars and lids for purposes of the Second Remand Determination, Commerce has implicitly adopted the fundamental reasoning of Jinan Yipin II and has therefore relied on the domestic Indian price quotes that the Chinese Producers had placed on the administrative record, in lieu of the Indian import statistics that the agency relied on in its prior determinations in this case. See Second Remand Determination at 1, 23–24, 38.⁵ As a result of these changes, the Second Remand Determination calculates the margins for both Jinan Yipin and Linshu Dading to be 0.00%, and 0.04% for Sunny. See id. at 1–2.

Although they do not dispute Commerce's revised surrogate values for labor, cardboard packing cartons, and plastic jars and lids,⁶ the Domestic Producers contest the Second Remand Determination as to the surrogate value for raw garlic bulbs. See generally Def.-Ints.' Brief; Def.-Ints.' Reply Brief. Specifically, the Domestic Producers contend that this matter must be remanded to Commerce yet again “to select a surrogate value that is specific to the fresh garlic exported to the United States by the [Chinese Producers].” Def.-Ints.' Brief at 2; see also id. at 21–22; Def.-Ints.' Reply Brief at 2, 10–11. In contrast, the Government and the Chinese Producers urge that the Second Remand...