Xiping Opeck Food Co. v. United States
| Decision Date | 26 April 2019 |
| Docket Number | Slip Op. 19–50,Court No. 17-00260 |
| Citation | 378 F.Supp.3d 1340 |
| Parties | XIPING OPECK FOOD CO., LTD., Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Yingchao Xiao, Lee & Xiao, of San Marino, California, argued for Plaintiff.
Mollie L. Finnan, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argued for Defendant. With her on the brief were Chad A. Readler, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of Counsel on the brief was Brendan Saslow, Attorney, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce.
Plaintiff Xiping Opeck Food Co., Ltd. ("Plaintiff" or "Xiping") moves for judgment on the agency record, pursuant to 19 U.S.C. § 1516a (2012), challenging the United States Department of Commerce's ("Commerce" or the "Department") final results of its administrative review of the antidumping duty order covering freshwater crawfish tail meat from China. See Freshwater Crawfish Tail Meat From the People's Rep. of China , 82 Fed. Reg. 47,469 (Dep't Commerce Oct. 12, 2017) ("Final Results"), and accompanying Issues and Dec. Mem. (Oct. 5, 2017), P.R. 142 ("Final IDM"). The period of review ("POR") was September 1, 2015 through August 31, 2016.
Xiping, an exporter of crawfish tail meat from China,1 objects to Commerce's rejection of untimely filed surrogate country financial statements from Thailand. Plaintiff also contends that the South African financial statements, on which Commerce relied, were "insufficiently disaggregated," and, therefore, could not serve as a proper basis for a normal value calculation. See Pl.'s Br. Supp. Mot. J. Agency R., ECF No. 24 ("Pl.'s Br.") 1; Pl.'s Reply Br., ECF No. 28.
The court has jurisdiction pursuant to 19 U.S.C. § 1516a(a)(2)(B)(iii) and 28 U.S.C. § 1581(c) (2012). Because Commerce did not abuse its discretion by rejecting the untimely filed financial statements, and Plaintiff failed to exhaust its administrative remedies when disputing the use of the South African financial statements. Commerce's Final Results are sustained.
In September 1997, Commerce issued its antidumping duty order on freshwater crawfish tail meat from China. See Freshwater Crawfish Tail Meat From the People's Rep. of China , 62 Fed. Reg. 41,347 (Dep't Commerce Aug. 1, 1997), amended by Freshwater Crawfish Tail Meat From the People's Rep. of China , 62 Fed. Reg. 48,218 (Dep't Commerce Sept. 15, 1997). On September 8, 2016, the Department published a notice of opportunity to request an administrative review of the order for the POR. See Opportunity To Request Admin. Rev. , 81 Fed. Reg. 62,096 (Dep't Commerce Sept. 8, 2016).
Petitioner, Crawfish Processors Alliance (the "Alliance"), responded to the notice and asked Commerce to review, among others, Hubei Nature Agriculture Co., Ltd. ("Hubei"), Yancheng Hi-King Agriculture Developing Co., Ltd. ("Yancheng Hi-King"), and Xiping, all Chinese producers or exporters of crawfish tail meat. See Req. Admin. Rev. (Sept. 30, 2016), P.R. 3 ("Alliance Req.") at 1-2. Hubei, having sold subject merchandise from China to the United States during the POR, asked for a review of its dumping margin. See Req. Admin. Rev. (Sept. 29, 2016), P.R. 2 at 2 ("Hubei Req.") at 2.
On November 9, 2016, Commerce initiated its review of eleven exporters and producers. See Initiation of Antidumping and Countervailing Duty Admin. Rev. , 81 Fed. Reg. 78,778 (Dep't Commerce Nov. 9, 2016) ; Alliance Req. at 1. The Department subsequently selected Yancheng Hi-King and Hubei as mandatory respondents for individual examination because they had "the largest volume of exports of subject merchandise during the POR." Respondent Selection 2015-2016 Antidumping Duty Admin. Rev. (Dec. 8, 2016), P.R. 31 ( ) at 5.
On November 29, 2016, Commerce provided interested parties the opportunity to comment on the surrogate country list, the selection of a surrogate country, and the selection of surrogate values. See Req. Surrogate County & Surrogate Value Comments & Info. (Nov. 29, 2016), P.R. 20 at 1 ( ); Selection Surrogate Countries (Dec. 6, 2016), P.R. 24 (). Hubei and the Alliance submitted comments concerning the selection of a surrogate country on March 3, 2017. See Surrogate Country Selection Comments (Mar. 3, 2017), P.R. 90 ("Hubei Comments"); Surrogate Country Selection Comments (Mar. 3, 2017), P.R. 91 ("Alliance Comments"). Hubei asked the Department to select "Thailand as the primary surrogate country for the factors of production and Spain for the import data for the valuation of live crawfish." Hubei Comments at 2. The Alliance, however, contested the suitability of Thailand as the primary surrogate, and urged the Department to choose "South Africa as the primary surrogate for values other than whole crawfish and scrap." Alliance Comments at 4.
Although an interested party within the meaning of the statute, Xiping placed no information on the record and filed no comments. See 19 C.F.R. §§ 351.102(b)(29), 351.301(a) (2016) ; Yangzhou Bestpak Gifts & Crafts Co. v. United States , 716 F.3d 1370, 1373 (Fed. Cir. 2013) (). On March 17, 2017, Hubei and the Alliance timely placed surrogate value information on the record, reflecting their respective positions as to the most appropriate surrogate country. See Surrogate Values (Mar. 17, 2017), P.R. 96 ( ); Hubei Surrogate Values Submissions (Mar. 17, 2017), P.R. 98 ( ). The Alliance's record submissions covered whole crawfish; shell and scrap; overhead, SG & A,2 and profit; and electricity, and included financial statements from the South African seafood processor Oceana Group (the "Oceana Report"). See Alliance Surr. Values Ex. 1-4. Hubei, in turn, submitted information from Thailand relating to imports3 ; labor statistics; brokerage and handling charges; inland freight charges; and water and electricity tariffs. See Hubei Surr. Values Ex. 1-5. Hubei did not, however, include any financial statements in its submissions.
On June 7, 2017, Commerce published the preliminary results of its administrative review, with accompanying preliminary decision memorandum. See Freshwater Crawfish Tail Meat From the People's Rep. of China , 82 Fed. Reg. 26,435, 26,438 (Dep't Commerce June 7, 2017) ("Preliminary Results"); see also Prelim. Dec. Mem. (June 1, 2017), P.R. 123. In the Preliminary Results, Commerce selected Thailand as the primary surrogate country, but relied on financial statements from the South African seafood processing company Oceana Group (the "Oceana Report") to calculate surrogate financial ratios. Prelim. Dec. Mem. at 6. Additionally, Commerce used Spanish data to value whole crawfish input. Prelim. Dec. Mem. at 7.
In the Preliminary Results, Commerce calculated a rate for Hubei of 5.10 percent. See Preliminary Results, 82 Fed. Reg. at 26,437. On July 14, 2017, Hubei filed a case brief asking Commerce to either reopen the administrative record to permit the submission of Thai financial statements for consideration in the Final Results, or that Commerce place such information on the record on its own initiative. See Hubei Admin. Case Br. (July 14, 2017), P.R. 139 ("Hubei Br.") at 8; see also Compl., ECF No. 11, ¶ 10. In response, the Alliance filed a rebuttal brief. See Alliance Rebuttal Br. (July 19, 2017), P.R. 140 at ii ( ).
In the Final Results, issued on October 12, 2017, and in the accompanying Final IDM, Commerce "recalculated a dumping margin of 3.81 percent to Hubei Nature, and assigned the same to Plaintiff," as a result of revising its "calculation of the surrogate value for non-refrigerated inland freight expenses." Compl. ¶ 11; Final Results, 82 Fed. Reg. at 47,470. Commerce refused, however, to accept Hubei's Thai financial statements, and declined to place further information on the record itself, citing the untimeliness of the potential submissions. See Final IDM at p. 12 of 134 ("In accordance with the statute, the Department's regulations and ... practice, the Department provided interested parties sufficient time to place surrogate financial information on the record so that interested parties would have a full and fair opportunity to evaluate them and to submit comments and other data in rebuttal."). Therefore, Commerce's Final Results used Thailand as the primary surrogate country, and relied on the South African Oceana Report to calculate surrogate financial ratios.5 See Final IDM at p. 12 of 13; Surrogate Value Mem. (June 1, 2017), P.R. 125 at 3, 5.
On October 31, 2017, Plaintiff filed a Rule 56.2 motion for judgment on the agency record in this Court, challenging Commerce's rejection of Hubei's request to reopen the record. See Pl.'s Br. 1. It is worth noting that Plaintiff makes this claim even though no party timely requested an extension of the original deadlines.6 In its complaint, Plaintiff alleged that "[t]he Department's dumping margin calculation using Oceana Group's financial statement is arbitrary and capricious, and is an abuse of discretion under 19 C.F.R. § 351.302(b)." Compl. ¶ 13. Defendant responded to Plaintiff's motion, maintaining that Commerce's Final Results should be sustained, and Plaintiff's motion for...
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