Yangzhou Bestpak Gifts & Crafts Co. v. United States, Slip Op. 12–40.Court No. 10–00295.

• Decision Date: 22 March 2012
• Docket Number: Slip Op. 12–40.Court No. 10–00295.
• Citation: 825 F.Supp.2d 1346,34 ITRD 1346
• Parties: YANGZHOU BESTPAK GIFTS & CRAFTS CO., LTD., Plaintiff, v. UNITED STATES, Defendant,Berwick Offray LLC, Defendant–Intervenor.
• Court: U.S. Court of International Trade

34 ITRD 1346

825 F.Supp.2d 1346

YANGZHOU BESTPAK GIFTS & CRAFTS CO., LTD., Plaintiff,

v.UNITED STATES, Defendant,Berwick Offray LLC, Defendant–Intervenor.

Slip Op. 12–40.Court No. 10–00295.

United States Court of International Trade.

March 22, 2012.

Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, LLP (Bruce M. Mitchell, New York, NY, Mark E. Pardo, Washington, DC, Ned H. Marshak and Andrew T. Schutz, New York, NY), for Plaintiff Yangzhou Bestpak Gifts & Crafts Co., Ltd.

Stuart F. Delery, Acting Assistant Attorney General; Jeanne E. Davidson, Director; Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington, DC, (Renee Gerber); and Scott D. McBride, U.S. Department of Commerce, Of Counsel, for Defendant United States.

Pepper Hamilton LLP (Gregory C. Dorris), Washington, DC, for Defendant–Intervenor, Berwick–Offray LLC.

OPINION

BARZILAY, Senior Judge:

This case returns to the court following a partial remand of the final results of an antidumping duty investigation conducted by the U.S. Department of Commerce (“Commerce”) covering narrow woven ribbons from the People's Republic of China and Taiwan. See Narrow Woven Ribbons With Woven Selvedge From the People's Republic of China, 75 Fed.Reg. 41,808 (Dep't of Commerce July 19, 2010) (“ Final Results ”), as amended Narrow Woven Ribbons with Woven Selvedge from the People's Republic of China, 75 Fed.Reg. 51,979 (Dep't of Commerce Aug. 24, 2010) (amended final determination); see also Issues and Decision Memorandum for the Final Determination in the Antidumping Duty Investigation of Narrow Woven Ribbons with Woven Selvedge from the People's Republic of China, A–570–952 (July 12, 2010) (“ Decision Memorandum ”), available at http:// ia. ita. doc. gov/ frn/ summary/ PRC/ 2010– 17568– 1. pdf (last visited Mar. 22, 2012). Before the court are the Final Results of the redetermination (Sep. 26, 2011) (“ Remand Results ”) filed by Commerce pursuant to Yangzhou Bestpak Gifts & Crafts Co. v. United States, 35 CIT ––––, 783 F.Supp.2d 1343 (2011) (“ Bestpak ”). The court has jurisdiction under Section 516A(a)(2)(B)(i) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(i) (2006), and 28 U.S.C. § 1581(c). For the reasons set forth below, the court sustains Commerce's Remand Results.

I. BACKGROUND

The investigation involved nineteen respondents, which Commerce identified as a large number of companies pursuant to 19 U.S.C. § 1677f–1(c)(2). Commerce selected only two mandatory respondents to determine the weighted average dumping margins for the pool of twelve uninvestigated respondents who qualified for a separate rate. See § 1677f–1(c)(2)(B). The first mandatory respondent, Ningbo Jintian Import & Export Co., Ltd. (“Ningbo Jintian”), failed to cooperate in the investigation and was assigned an adverse facts available (“AFA”) rate of 247.65%. The second, Yama Ribbons & Bows Co., Ltd. (“Yama”), fully cooperated in the investigation and was assigned a de minimis rate of 0%. Plaintiff Yangzhou Bestpak Gifts & Crafts Co., Ltd.'s (“Bestpak”) was not selected as a mandatory respondent but applied for separate rate status, successfully establishing an absence of de jure or de facto government control. To calculate the separate rate, Commerce took the simple average of the rates assigned to Ningbo Jintian (247.65%) and Yama (0%), yielding a rate of 123.83%, which Commerce assigned to Bestpak and the other eleven separate rate respondents. See Final Results, 75 Fed.Reg. at 41,811.

Bestpak then commenced this action challenging Commerce's separate rate calculation. See Bestpak, 783 F.Supp.2d at 1345. Bestpak claimed that Commerce had violated the antidumping statute by factoring an AFA rate into the separate rate calculation. Id. Plaintiff also claimed that Commerce's separate rate calculation yielded a rate that did not reasonably reflect Bestpak's potential dumping margin. Id. The court, in turn, concluded that Commerce had not violated the statute by factoring an AFA rate into the separate rate calculation. Id. at 1349–50. The court, though, had reservations on the substantial evidence issue of the reasonableness of Commerce's decision-making given the administrative record. Id. at 1350–53. The court was concerned that Commerce's simple average of the two rates may have been too facile and perhaps did not “reasonably reflect” Bestpak's potential dumping margin. Id. The court remanded the case to Commerce for further explanation as to “how the separate rate of 123.83% relates to Bestpak's commercial activity.” Id. at 1353.

In the Remand Results Commerce attempted to comply with the court's remand order by utilizing the limited information provided in the quantity and value (“Q & V”) questionnaires to calculate estimated average unit values (“AUV”) for the two mandatory respondents and Bestpak. Id. at 6–7. The AUV analysis conducted by Commerce relied on individually reported Q & V data submitted by respondents during the antidumping investigation. Id. After comparing the AUV information to the dumping margins established during the investigation, Commerce again determined that “the separate rate assigned to [Bestpak] in the Final Determination reasonably reflects its potential dumping margin.” Id. at 7.

II. STANDARD OF REVIEW

When reviewing Commerce's antidumping determinations under 19 U.S.C. § 1516a(a)(2)(B)(i) and 28 U.S.C. § 1581(c), the U.S. Court of International Trade sustains Commerce's “determinations, findings, or conclusions” unless they are “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). More specifically, when reviewing agency determinations, findings, or conclusions for substantial evidence, the court assesses whether the agency action is reasonable given the record as a whole. Nippon Steel Corp. v. United States, 458 F.3d 1345, 1350–51 (Fed.Cir.2006). Substantial evidence has been described as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Dupont Teijin Films USA v. United States, 407 F.3d 1211, 1215 (Fed.Cir.2005) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). Substantial evidence has also been described as “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. Fed. Mar. Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966).

III. DISCUSSION

In non-market economy investigations Commerce assumes that respondent companies operate under foreign government control. See Sigma Corp. v. United States, 117 F.3d 1401, 1405 (Fed.Cir.1997). During the course of an antidumping investigation, Commerce affords non-investigated respondents the opportunity to establish an absence of government control and thereby secure a separate rate. See Policy Bulletin 05.1: Separate—Rates Practice and Application of Combination Rates in Antidumping Investigations Involving Non–Market Economy Countries, at 2, 3–4, 6 (Apr. 5, 2005) (explaining separate rate practice and stating Commerce will calculate a separate rate for the “pool of non-investigated firms” in an NME proceeding) available at http:// ia. ita. doc. gov/ policy/ bull 05– 1. pdf (last visited Mar. 22, 2012); Sigma Corp., 117 F.3d at 1405.

In calculating a separate rate for non-individually investigated respondents in non-market economy investigations, Commerce normally relies 19 U.S.C. § 1673d(c)(5)(A), which defines the all-others rate used in market economy investigations. See Bristol Metals L.P. v. United States, 34 CIT ––––, ––––, 703 F.Supp.2d 1370, 1378 (2010) (citation omitted). The statute instructs Commerce to weight-average the rates calculated for the investigated parties, excluding de minimis or zero rates and excluding rates based on facts available, to determine the separate rate. 19 U.S.C. § 1673d(c)(5)(A). However, “[i]f the estimated weighted average dumping margins established for all exporters and producers individually investigated are zero or de minimis margins, or are determined entirely [on the basis of facts available], the administering authority may use any reasonable method to establish the estimated all-others rate for exporters and producers not individually investigated, including averaging the estimated weighted average dumping margins determined for the exporters and producers individually investigated.” § 1673d(c)(5)(B). The Statement of Administrative Action provides that the “expected method in such cases will be to weight-average the zero and de minimis margins and margins determined pursuant to the facts available, provided that volume data is available.” Uruguay Round Agreements Act, Statement of Administrative Action, H.R. Doc. No. 103–316, vol. 1, at 873 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4201 (“SAA”). It goes on to state that “if this method is not feasible, or if it results in an average that would not be reasonably reflective of potential dumping margins for non-investigated exporters or producers, Commerce may use other reasonable methods.” Id.

Here, Commerce selected two mandatory respondents, Yama and Ningbo Jintian. Only Yama cooperated, receiving a de minimis 0% dumping margin. See Final Results, 75 Fed.Reg. 41,811. Ningbo Jintian stopped cooperating early, receiving an AFA rate of 247.65%. See id.; see also Memorandum from Zhulieta Willbrand, RE: Ningbo Jintian, Pub. Admin. R. Doc. No. 109 (Oct. 6, 2009). Bestpak, as an un-investigated respondent, did not submit responses to Commerce's antidumping duty questionnaires. This resulted in an administrative record with limited data points that unfortunately yielded only a de minimis and an AFA rate. As a result, Commerce could not calculate a separate rate using...