Shijiazhuang Goodman Trading Co. v. United States

• Decision Date: 22 March 2016
• Docket Number: Court No. 14-00101,Slip Op. 16-24
• Citation: 172 F.Supp.3d 1363
• Parties: Shijiazhuang Goodman Trading Co., Ltd., Plaintiff, v. United States, Defendant, and Fresh Garlic Producers Association, et al., Defendant-intervenors.
• Court: U.S. Court of International Trade

172 F.Supp.3d 1363

Shijiazhuang Goodman Trading Co., Ltd., Plaintiff,

v. United States, Defendant,andFresh Garlic Producers Association, et al., Defendant-intervenors.

Slip Op. 16-24

Court No. 14-00101

United States Court of International Trade.

March 22, 2016

Robert T. Hume, Hume & Associates, LLC, of El Prado, NM, for plaintiff Shijiazhuang Goodman Trading Co., Ltd.

Richard P. Schroeder, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., for defendant United States. With him on the brief were Joyce R. Branda, 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 Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce.

Michael J. Coursey, Kelley Drye & Warren, LLP, of Washington D.C., argued for defendant-intervenors Fresh Garlic Producers Association, Vessey and Company, Inc., The Garlic Company, Christopher Ranch, L.L.C., and Valley Garlic. With him on the brief was John M. Herrmann II.

OPINION AND ORDER

Stanceu

, Chief Judge:

Plaintiff contests a decision by the International Trade Administration, U.S. Department of Commerce (“Commerce” or the “Department”), to rescind an administrative “new shipper” review of an antidumping duty order on fresh garlic from the People's Republic of China (“China” or the “PRC”). Plaintiff, Shijiazhuang Goodman Trading Co., Ltd. (“Goodman”), a Chinese garlic exporter, requested the new shipper review, a procedure that potentially allowed it to be assigned an individually-determined antidumping duty rate on its garlic exports to the United States.

Before the court is plaintiff's motion for judgment on the agency record, filed pursuant to USCIT Rule 56.2

. Concluding, inter alia , that Commerce failed to base its decision to rescind the review on the record evidence considered as a whole, the court orders a remand and directs Commerce to reconsider its decision.

I. BACKGROUND

1. The Contested Decision

Contested in this litigation is Fresh Garlic from the People's Republic of China: Final Rescission of Antidumping Duty New Shipper Review of Shijiazhuang Goodman Trading Co., Ltd. , 79 Fed. Reg. 22,098 (Int'l Trade Admin. Apr. 21, 2014)

(“Rescission ”). The published decision incorporates by reference an “Issues and Decision Memorandum” that Commerce described therein as addressing “all issues raised in the case and rebuttal briefs.” Id. ; see Decision Mem. for the Final Results in the Antidumping Duty New Shipper Rev. of Fresh Garlic from the People's Republic of China: Shijiazhuang Goodman Trading Co., Ltd. , A-570-831, APR 11-12, at 9 (Apr. 3, 2014) (Admin.R.Doc. No. 190), available at http://enforcement.trade.gov/frn/summary/prc/2014-09015-1.pdf (last visited March 10, 2016) (“Final Decision Mem .”).

Commerce issued the antidumping duty order on fresh garlic from the PRC (the “Order”), to which the new shipper review pertained, in 1994. Antidumping Duty Order: Fresh Garlic from the People's Republic of China , 59 Fed. Reg. 59,209 (Int'l Trade Admin. Nov. 16, 1994)

.

2. The Department's New Shipper Review Proceeding

Goodman originally filed its request for a new shipper review on November 27, 2012 and amended that request on December 6, 2012. Fresh Garlic from the People's Republic of China—Re-filing Request for Antidumping New Shipper Review of Shijiazhuang Goodman Trading Co., Ltd.

1 n.1 (Dec. 6, 2012) (Admin.R.Doc. No. 4) (“Request ”). Goodman based its new shipper review request on its having made three shipments to the United States of fresh garlic from China beginning in July 2012. Id. at 1-2. The garlic was produced by, and obtained by Goodman from, Jinxiang Zhongtian Business Co., Ltd., a Chinese garlic producer. Id. at 3.

On January 2, 2013, Commerce initiated the requested new shipper review according to section 751(a)(2)(B) of the Tariff Act of 1930, 19 U.S.C. § 1675(a)(2)(B)

.¹

Fresh Garlic from the People's Republic of China: Initiation of Antidumping Duty New Shipper Review; 2011-2012 , 78 Fed. Reg. 88 (Jan. 2, 2013) (“Initiation ”). The review covered the period of November 1, 2011 through October 31, 2012. Rescission, 79 Fed. Reg. at 22,098.

On November 8, 2013, Commerce issued the preliminary results of the review (“Preliminary Results”), in which it concluded, preliminarily, that Goodman met the requirements for a new shipper review and was entitled to an individually-determined antidumping duty rate. Fresh Garlic From the People's Republic of China: Preliminary Results of New Shipper Rev. of Shijiazhuang Goodman Trading Co., Ltd. , 78 Fed. Reg. 67,112 (Nov. 8, 2013)

(“Prelim. Results ”) and accompanying Decision Mem. for the Preliminary Results of Antidumping Duty New Shipper Review of Fresh Garlic from the People's Republic of China: Shijiazhuang Goodman Trading Co., Ltd. , A-570-831, ARP 11-12, at 1-2 (Nov. 4, 2013) (Admin.R.Doc. No. 141), available at http://enforcement.trade.gov/frn/summary/prc/2013-26861-1.pdf (last visited Mar. 10, 2016) (“Prelim. Decision Mem. ”). Departing from its normal practice of expressing weighted-average dumping margins in ad valorem terms, Commerce preliminarily determined a per-unit dumping margin for Goodman, which was $0.44 per kg. Prelim. Results, 78 Fed. Reg. at 67,112.

3. The Rescission of the New Shipper Review

Reversing the position it had taken in the Preliminary Results, Commerce issued its rescission of the new shipper review (“Rescission”) on April 21, 2014. Rescission

, 79 Fed. Reg. at 22,098.

In the Rescission, Commerce reached several decisions. It decided, first, that Goodman had no bona fide U.S. sales during the period of review and on that basis concluded that the ongoing new shipper review must be rescinded. Id

. , 79 Fed. Reg. at 22,098 ; Final Decision Mem. 9. Second, Commerce decided that, because of the rescission of the new shipper review, “we are not considering Goodman's application for a separate rate in this segment of the proceeding, nor are we reviewing the PRC entity.” Final Decision Mem. 9. Referring to the eighteenth periodic administrative review of the Order, Commerce added that “[w]e note that Goodman's entries are under review in the concurrent administrative review ... and that we are considering Goodman's entitlement to a separate rate in that review.” Id. Third, Commerce determined that “Goodman remains part of the PRC-wide entity, and the PRC-wide entity cash deposit rate is the appropriate cash deposit rate for Goodman.” Id. As a consequence, imports of Goodman's subject merchandise have been subjected to a cash deposit requirement at the PRC-wide rate of $4.71/kg. Rescission , 79 Fed. Reg. at 22,099.

In using the term “separate rate,” Commerce referred to a rate to be applied to exporters and producers that did not receive an individually-determined rate but qualified for a rate separate from the “PRC-wide” rate, which is the rate Commerce assigned to the exporters and producers failing to establish independence from the government of the PRC.

4. Goodman's Challenge to the Rescission of the New Shipper Review in the Court of International Trade

Goodman brought this action on April 21, 2014. Summons, ECF No. 1; Compl., ECF No. 6. On May 21, 2014, the court granted a motion filed by the Fresh Garlic Producers Association and its individual members, Christopher Ranch, L.L.C., The Garlic Company, Valley Garlic, and Vessey and Company, Inc., to intervene on behalf of defendant. Consent Mot. to Intervene, ECF No. 8; Order, ECF No. 12. Defendant-intervenors are domestic garlic producers that participated in the new shipper review. See Consent Mot. to Intervene 2, ECF No. 8.

Goodman moved for judgment on the agency record pursuant to USCIT Rule 56.2

on August 22, 2014. Mot. of Pl. Shijiazhuang Goodman Trading Co, Ltd. for J. on the Agency R., ECF No. 22 (“Pl.'s Mot.”); Mem. in Supp. of Pl.'s Mot. for J. on the Agency R., ECF No. 22 (“Pl.'s Br.”). Defendant and defendant-intervenor filed briefs in opposition to plaintiff's motion and plaintiff filed a reply. Def.'s Mem. in Opp'n to Pl.'s R. 56.2 Mot. for J. Upon the Agency Record (Nov. 6, 2014), ECF No. 31 (“Def.'s Opp'n”); Def.-intervenors' Resp. in Opp'n to Pl.'s Mot. for J. on the Agency R. (Nov. 6, 2014), ECF No. 33 (“Def.-intervenor's Opp'n”); Pl.'s Reply to the Responses of Def. & Def.-intervenors to Pl.'s R. 56.2 Mot. for J. upon the Agency R. (Dec. 10, 2014), ECF No. 37 (“Pl.'s Reply”). The court held oral argument on May 21, 2015. ECF No. 43.

5. The Eighteenth Administrative Review of the Antidumping Duty Order

The period of review for the requested new shipper review, November 1, 2011 through October 31, 2012, corresponds to the period of review for the eighteenth periodic administrative review of the Order, the final results of which Commerce issued on June 30, 2014, 70 days after the Rescission contested in this case. 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 (Int'l Trade Admin. June 30, 2014)

(“Final Results ”).

After stating in the Rescission that “we are considering Goodman's entitlement to a separate rate in that review,” Final Decision Mem. 9, Commerce, in the final results of the eighteenth administrative review, rescinded the eighteenth administrative review as to Goodman on the same ground on which it ruled in the Rescission, Final Results , 79 Fed. Reg. at 36,723

(“Because the sales subject to this review are the same sales found to be non-bona fide in the new shipper review, the Department is rescinding this administrative review with respect to Goodman.”).

In the eighteenth review, Commerce retained the PRC-wide rate of $4.71 per kg., the rate it continued to apply to Goodman, and determined a rate of $1.82 per kg. for the separate rate respondents in that review. Id.

Before this Court, numerous parties,...