Qingdao Maycarrier Import & Export Co. v. United States

• Citation: 949 F.Supp.2d 1335
• Decision Date: 13 December 2013
• Docket Number: Court No. 13–00142.,Slip Op. 13–149.
• Court: U.S. Court of International Trade
• Parties: QINGDAO MAYCARRIER IMPORT & EXPORT CO., LTD., Plaintiff, v. UNITED STATES, Defendant, and Fresh Garlic Producers Association, et al., Defendant–Intervenors.

949 F.Supp.2d 1335

QINGDAO MAYCARRIER IMPORT & EXPORT CO., LTD., Plaintiff,

v.UNITED STATES, Defendant,andFresh Garlic Producers Association, et al., Defendant–Intervenors.

Slip Op. 13–149.

Court No. 13–00142.

United States Court of

International Trade.

Dec. 13, 2013.

Robert T. Hume, Hume & Associates, LLC, of Ojai, CA, for plaintiff.

Melissa M. Devine, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for defendant. With her on the brief were Stuart F. Delery, Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel on the brief was George H. Kivork, Attorney, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, of Washington, DC.

Michael J. Coursey and John M. Herrmann II, Kelley Drye & Warren LLP, of Washington, DC, for defendant-intervenors.

OPINION

TSOUCALAS, Senior Judge:

Plaintiff Qingdao Maycarrier Import & Export Co., Ltd. (“Maycarrier”), moves for judgment on the agency record contesting defendant United States Department of Commerce's (“Commerce”) determination in Fresh Garlic From the People's Republic of China: Final Rescission of Antidumping Duty New Shipper Reviews; 2010–2011, 78 Fed.Reg. 18,316 (Mar. 26, 2013) (“ Final Rescission ”). Commerce and defendant-intervenors Fresh Garlic Producers Association, et al., oppose Maycarrier's motion. For the following reasons, Maycarrier's motion is denied.

BACKGROUND

In 1994, Commerce issued an antidumping duty order covering fresh garlic from the People's Republic of China (“PRC”). See Antidumping Duty Order: Fresh Garlic From the PRC, 59 Fed.Reg. 59,209 (Nov. 16, 1994). Maycarrier made three entries of subject merchandise during 2011. See Request for Antidumping New Shipper Review (Nov. 30, 2011), A–570–831, Public Rec. 2 at 1–2.¹ In November 2011, Maycarrier requested a new shipper review (“NSR”) to obtain an individual rate for its entries. Id. at 1. Commerce initiated the NSR in January 2012. See Fresh Garlic From the PRC: Initiation of NSRs, 77 Fed.Reg. 266, 267 (Jan. 4, 2012).

In March 2013, Commerce rescinded Maycarrier's NSR. Final Rescission, 78 Fed.Reg. at 18,317. Commerce found that Maycarrier was actually the same entity as Weifang Naike Foodstuffs Co., Ltd. (“Naike”), an exporter that entered subject merchandise prior to the period of review. See Issues and Decision Memorandum for the Final Rescission of the Antidumping Duty NSRs of Fresh Garlic from the PRC (Mar. 19, 2013), A–570–831, PR 194 at 3–6. Commerce's analysis centered on three pieces of evidence: (1) mutual links between the two companies Commerce discovered on numerous business-to-business websites and Maycarrier's own website; (2) Maycarrier's business registration form; and (3) Maycarrier's tax records. See Analysis of Maycarrier (Mar. 19, 2013), A–570–831, CR 108 at 1–8.

Commerce placed evidence onto the record from business-to-business websites and Maycarrier's own website indicating that Maycarrier and Naike shared contact information and personnel in their sales and management departments. See CR 108 at 4–7. Specific evidence included: several websites listed a telephone number for Naike's sales department that is identical to the number Maycarrier listed for its sales department on its own website; Maycarrier's general manager, Eileen Chen, “manage[d] online sales for both Maycarrier and Naike,” and shared a mobile number with Naike's chairman; Maycarrier's profiles on “tradezz.com” and on “tradekr.com” list Maycarrier's phone number but direct users to “naikefood.com”; Maycarrier and Naike are both listed as members of a “Weifang Naike Group”; several websites list Naike's employees as contacts for Maycarrier; and Lily Pan, an employee of Naike, posted sales information to Maycarrier's profiles on several websites. See id. Given this evidence, Commerce concluded that Maycarrier and Naike “appear indifferent to which of the two companies makes a sale and receives the associated sales revenue.” PR 194 at 5–6.

During the review, Maycarrier provided Commerce with copies of its tax returns and those of Yishi Hengshun Food Co., Ltd. (“Hengshun”), a company operating in Shandong Province that produces subject merchandise. See Maycarrier's Supplemental Questionnaire Response, Exhs. 3, 13 (Jul. 20, 2012), A–570–831, CR 44, 45. Commerce located Hengshun's records in the Shandong Province National Taxation Bureau's online database, but could not locate Maycarrier's records. See Analysis of Maycarrier's New Shipper Sales (Oct. 18, 2012), A–570–831, CR 73 at 6. Maycarrier explained that the “Confidential Administration Provision on Tax Payers” (“CAP”) for Qingdao City provided that its records were confidential and therefore unavailable by internet search. Maycarrier's Second Supplemental Questionnaire Response (Dec. 13, 2012), A–570–831, CR 94 at 1. Commerce determined that the terms of the CAP conflicted with Maycarrier's argument. See CR 108 at 2. Specifically, Commerce found that Article 4 of the CAP stated that certain information was confidential, but did not define what information qualified as confidential. Id. Furthermore, Article 2, which defined confidential information, did not list the tax payer's name, identification number, or the existence of its record as confidential. Id. at 3. Commerce concluded that Maycarrier's failure to explain the absence of its tax records was further evidence that it was not an independent entity. See PR 194 at 5.

Maycarrier also provided Commerce with a copy of its business registration form with an accompanying translation. CR 94, Exh. 2. Although it originally translated the “enterprise status” portion of the form as “[[ Confidential Data Deleted ]],” id., Maycarrier subsequently amended the translation to “[[ Confidential Data Deleted ]].” Maycarrier's Third Supplemental Questionnaire Response (Jan. 22, 2013), A–570–831, CR 100 at 2. Commerce determined that a more accurate translation was “[[ Confidential Data Deleted ]]” or “[[ Confidential Data Deleted ]],” indicating that Maycarrier was “connected to another entity.” CR 108 at 8.

Given the record as a whole, Commerce concluded that “the companies are essentially the same.” PR 194 at 5. Commerce rescinded the review because Maycarrier did not report Naike's earlier sales of subject merchandise in violation of 19 C.F.R. § 351.214(b)(2)(iv).²Final Rescission, 78 Fed.Reg. at 18,317. Because it was no longer reviewing Maycarrier's sales, Commerce declined to assign Maycarrier a separate rate, PR 194 at 8–9, and noted that Maycarrier's entries would continue to be assessed at the PRC-wide rate. See Final Rescission, 78 Fed.Reg. at 18,317.

Maycarrier raises several challenges to the Final Rescission: (1) Commerce erroneously rescinded the NSR; (2) Commerce erroneously declined to assign Maycarrier a separate rate; and (3) Commerce erroneously imposed an adverse facts available (“AFA”) rate of $4.71/kg that was unsupported by substantial evidence and contrary to law. See Pl.'s Br. at 25–46.

JURISDICTION and STANDARD OF REVIEW

The Court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2006) and section 516A(a)(2)(B)(iii) of the Tariff Act of 1930,³ as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2006).

“The court shall 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). Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951). It is “something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966). In determining whether a decision was supported by substantial evidence, the Court's role is to “assess[ ] whether [Commerce's] action is reasonable given the record as a whole.” Since Hardware (Guangzhou) Co. v. United States, 37 C.I.T. ––––, ––––, 911 F.Supp.2d 1362, 1365 (2013) (citing Nippon Steel Corp. v. United States, 458 F.3d 1345, 1350–51 (Fed.Cir.2006)).

Additionally, “an agency's construction of its own regulations is entitled to substantial deference.” Lyng v. Payne, 476 U.S. 926, 939, 106 S.Ct. 2333, 90 L.Ed.2d 921 (1986).

DISCUSSION

I. Legal Framework

Commerce shall, upon request, conduct a review of a exporter or producer who did not export subject merchandise to the U.S. during the period of investigation or is not affiliated with an entity that exported subject merchandise to the U.S. during that period to determine whether that exporter or producer is eligible for an “individual” rate. 19 U.S.C. § 1675(a)(2)(B)(i). Section 1675(a)(2)(B) “enables a new shipper ‘to demonstrate that it should be accorded a dumping rate specific to itself, and not the ‘all-others' rate.’ ” Hebei New Donghua Amino Acid Co. v. United States, 29 C.I.T. 603, 604, 374 F.Supp.2d 1333, 1335 (2005) (citing Tianjin Tiancheng Pharm. Co. v. United States, 29 C.I.T. 256, 256, 366 F.Supp.2d 1246, 1247 (2005)).

Commerce's regulations set out requirements for an exporter or producer to obtain an individual rate through a NSR. First, the exporter or producer must certify that it neither exported subject merchandise during the period of investigation nor is affiliated with an entity that did so. See19 C.F.R. § 351.214(b)(2)(i)–(iii) (2012). It must also certify the date of first entry of subject merchandise, the volume of that entry and all later entries, and the date of first sale to an unaffiliated customer in the U.S. Id. at § 351.214(b)(2)(iv). Commerce explained that “[t]he purpose of these certifications is to...