Slip Op. 13-149
UNITED STATES COURT OF INTERNATIONAL TRADE
QINGDAO MAYCARRIER IMPORT & :
EXPORT CO., LTD., :
:
Plaintiff, :
: Before: Nicholas Tsoucalas,
v. : Senior Judge
:
UNITED STATES, : Court No.: 13-00142
:
Defendant, :
: PUBLIC VERSION
and :
:
FRESH GARLIC PRODUCERS :
ASSOCIATION, et al., :
:
Defendant-Intervenors. :
:
OPINION
[Plaintiff’s motion for judgment on the agency record is denied.]
Dated: December 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.
Tsoucalas, Senior Judge: Plaintiff Qingdao Maycarrier
Import & Export Co., Ltd. (“Maycarrier”), moves for judgment on the
agency record contesting defendant United States Department of
Court No. 13-00142 Page 2
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In March 2013, Commerce rescinded Maycarrier’s NSR.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
1
Hereinafter, documents in the public record will be
designated “PR” and documents in the confidential record designated
“CR” without further specification except where relevant.
Court No. 13-00142 Page 3
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.
Court No. 13-00142 Page 4
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
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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 “[[ ]],” id.,
Maycarrier subsequently amended the translation to “[[
]].” Maycarrier’s Third Supplemental Questionnaire
Response (Jan. 22, 2013), A-570-831, CR 100 at 2. Commerce
determined that a more accurate translation was “[[
]]” or “[[ ]],” 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).2 Final 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.
2
Commerce also upheld its finding in the preliminary results
that Maycarrier’s NSR request was untimely under 19 C.F.R.
351.214(c). See PR 194 at 4.
Court No. 13-00142 Page 6
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 (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 (1966). In
3
Further citations to the Tariff Act of 1930 are to the
relevant portions of Title 19 of the U.S. Code, 2006 edition, and
all applicable amendments thereto.
Court No. 13-00142 Page 7
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 CIT __, __, 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 (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 CIT 603, 604, 374 F. Supp. 2d 1333, 1335 (2005) (citing
Tianjin Tiancheng Pharm. Co. v. United States, 29 CIT 256, 256, 366
F. Supp. 2d 1246, 1247 (2005)).
Commerce’s regulations set out requirements for an
Court No. 13-00142 Page 8
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. See 19 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 ensure
that new shipper status is not achieved through mere restructuring
of corporate organizations or channels of distribution,” and that
“parties will not be granted new shipper status merely because they
were not individually examined during the investigation.”
Antidumping Duties, 61 Fed. Reg. 7308, 7318 (Feb. 27, 1996).
Finally, the exporter or producer must request the NSR
within one year after the date of first entry of subject
merchandise. See 19 C.F.R. § 351.214(c). Commerce included this
provision to clarify that “the statute is intended to provide a new
shipper an opportunity to obtain its own rate on an expedited
basis, and not to permit shippers to request expedited reviews long
after the first shipment has taken place.” Antidumping Duties, 61
Fed. Reg. at 7318.
II. The Final Rescission was Supported by Substantial Evidence
and Otherwise in Accordance with Law.
Court No. 13-00142 Page 9
Maycarrier argues that the Final Rescission must be
remanded because Commerce lacked authority to rescind the NSR under
19 C.F.R. § 351.214(b) or (c); Commerce did not determine that
Maycarrier was “affiliated” with Naike; and record evidence
established that Maycarrier was independent from Naike. See Pl.’s
Br. at 25–36.
A. Commerce’s Authority to Rescind the NSR
First, Maycarrier argues that Commerce lacked authority
to rescind the NSR under 19 C.F.R § 351.214(b) or (c). See Pl.’s
Br. at 29. According to Maycarrier, Commerce may rescind an NSR
only under the situations prescribed in 19 C.F.R. § 351.214(f):
either the party requesting the NSR voluntarily withdraws its
request or there was not a sale to an unaffiliated customer during
the review period. Pl.’s Reply at 7. Because neither of these
situations occurred during the NSR, Maycarrier argues that the
Final Rescission violated Commerce’s regulations. Id. at 10.
The Court expressly rejected this argument in Marvin
Furniture (Shanghai) Co. v. United States, 36 CIT __, 867 F. Supp.
2d 1302 (2012) (Tsoucalas, J.), appeal docketed No. 13-1156 (Fed.
Cir. Jan. 11, 2013). In that case, Commerce rescinded the NSR
because Marvin Furniture (Shanghai) Co., Ltd. (“Marvin”), did not
accurately report the date of first entry of subject merchandise.
Id. at __, 867 F. Supp. 2d at 1306. Marvin contested Commerce’s
authority to rescind the NSR, but the Court held that “the
Court No. 13-00142 Page 10
rescission was based on an application of the express provisions of
the relevant statutes and regulations.” Id. at __, 867 F. Supp. 2d
1308. The Court found that a NSR request “provides the basis upon
which Commerce can undertake the review,” and therefore Commerce
cannot engage in a NSR “[i]f a new shipper request does not provide
Commerce with accurate information regarding an exporter or
producer’s entries.” Id., 867 F. Supp. 2d at 1308.
As noted above, the regulations ensure that NSRs are
available to qualified new shippers only and prevent entities from
attempting to obtain a lower rate by obscuring earlier sales.
See Antidumping Duties, 61 Fed. Reg. at 7318. Given the deference
accorded to Commerce’s interpretation of its own regulations, Lyng,
476 U.S. at 939, the court continues to find that Commerce properly
rescinds a NSR where the request is inaccurate or infirm. See
Marvin, 36 CIT at __, 867 F. Supp. 2d at 1308.
B. “Affiliate” Standard
Maycarrier also argues that “Commerce failed to apply the
proper standard of ‘affiliation’” when analyzing Maycarrier’s
relationship with Naike. Pl.’s Reply at 10–11; see Pl.’s Br. at
27. According to Maycarrier, “Congress determined . . . that
‘affiliated’ is the operative relationship to disqualify a new
shipper in the case of a connection to a company involved in sales
of subject merchandise during the [period of investigation].” Id.
Maycarrier continues that “[a] similar relationship must exist in
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respect to a ‘connection’ for reporting sales within the one-year
limit specified in Commerce’s regulations.” Id. Because Commerce
did not conclude that Maycarrier was affiliated with Naike,
Maycarrier insists that the Final Rescission is contrary to statute
and regulation. Id. at 29.
Maycarrier’s argument is incorrect. Maycarrier borrows
the “affiliation” standard from 19 U.S.C. § 1675(a)(2)(B), which
applies to sales during the period of investigation. 19 U.S.C. §
1675(a)(2)(B). However, Commerce did not rely on section
1675(a)(2)(B) when rescinding the review. Rather, Commerce
determined that Maycarrier failed to report its first sale, in
violation of 19 C.F.R. § 351.214(b)(2)(iv), and did not timely file
its NSR request. Final Rescission, 78 Fed. Reg. at 18,317; PR 194
at 4. As noted above, these regulations require that an exporter
or producer certify certain information about its first entry and
sale, and request a review within one year of its first sale. 19
C.F.R. § 351.214(b)(2)(iv), (c). They do not mention “affiliation”
with another exporter or producer who made earlier sales, id., and
Maycarrier does not cite any authority supporting its position.
See Pl.’s Br. at 27; Pl.’s Reply at 10–11. Because it is
inconsistent with the plain text of the regulations, Maycarrier’s
argument must fail. 19 C.F.R. § 351.214(b)(2)(iv), (c).
C. Record Support for Commerce’s Determination
Finally, Maycarrier alleges that Commerce’s determination
Court No. 13-00142 Page 12
that Maycarrier was the same entity as Naike was not supported by
substantial evidence. See Pl.’s Br. at 25–36. Maycarrier insists
that Commerce unreasonably relied on information it obtained from
its “cyber investigation” of the two companies and erroneously
interpreted evidence regarding Maycarrier’s tax returns and
registration form. See id. Ultimately, Maycarrier insists that
Commerce did not have sufficient evidence to define the
relationship between the two entities and therefore the Final
Rescission must be remanded. See id.
As noted above, the Court reviews Commerce’s conclusions
to determine whether they were supported by substantial evidence
and in accordance with law. 19 U.S.C. § 1516a(b)(1)(B)(i). Here,
Commerce’s finding was reasonable given the record as a whole.
(i) Business-to-business Websites
Maycarrier insists that Commerce erroneously relied on
the information it discovered on business-to-business websites.
Pl.’s Br. at 28–31. To illustrate that the information was not
reliable, Maycarrier identifies three individual errors in its
brief: (1) “Nobodybuy.com” listed Eileen Chen as a contact for
Naike but does not mention garlic or Maycarrier; (2) “allbiz.com”
inconsistently translated Naike and Weifang Naike Group from the
Chinese characters; and (3) “B2B77.com” noted that Maycarrier did
not provide a company introduction on its company profile. Id. at
30–31. Maycarrier also insists that Naike or another entity
Court No. 13-00142 Page 13
fraudulently posted this information because, as it explained to
Commerce, “companies such as Naike make exaggerated and inaccurate
claims on websites.” Id. at 28. Neither of these arguments is
sufficient to undermine Commerce’s decision.
The record includes over two-dozen websites listing
information indicating that the companies share contact,
management, and personnel information, as well as direct sales to
one another. See CR 108 at 4–7 (detailing the instances of
overlapping information). Commerce acknowledged that the websites
contained certain errors, but concluded that, taken as a whole,
they represent a consistent pattern in which Maycarrier and Naike
represented themselves interchangeably. Id. Given the repeated
instances of overlapping information, the relatively minuscule
errors Maycarrier identifies on individual web pages do not render
Commerce’s decision erroneous. See Hoogovens Staal BV v. United
States, 24 CIT 242, 247, 93 F. Supp. 2d 1303, 1307 (2000) (citing
Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 936
(Fed. Cir. 1984)) (“[T]hat plaintiff can point to evidence . . .
which detracts from . . . [Commerce's] decision and can hypothesize
a . . . basis for a contrary determination is neither surprising
nor persuasive.”) (alterations in original).
Furthermore, Maycarrier’s claim that Naike fraudulently
posted the information to exaggerate its own business is
unavailing. Maycarrier insists that it is common in the PRC for
Court No. 13-00142 Page 14
companies to misrepresent themselves on the internet, and therefore
the information Commerce obtained is inaccurate. Pl.’s Br. at 31.
However, Maycarrier does not identify any evidence in the record
that supports this claim, see id., and its explanation is actually
contradicted by the record: Commerce found that Naike’s profile on
certain websites directed potential customers to Maycarrier,
indicating that the Naike actually promoted Maycarrier’s business.
See CR 108 at 6. Maycarrier’s alternative explanation of the
evidence, by itself, is an insufficient basis upon which to
overturn Commerce’s determination. See Consolo, 383 U.S. at 620.
(ii) Registration Form
Maycarrier also argues that Commerce mistranslated the
“enterprise status” section of its business registration form as
“[[ ]]” or “[[ ]].” See
Pl.’s Br. at 32–33. According to Maycarrier, the proper
translation is “[[ ]],” which indicates that it is
an independent entity. Id. at 33. As evidence, Maycarrier points
to the translation on the record of the Company Law of the PRC
(“Company Law”), in which the same characters as those in
Maycarrier’s enterprise status are translated as “[[
]].” Id. Maycarrier insists that “[c]learly this
translation affirms Maycarrier’s translation.” Id.
Maycarrier’s argument is unpersuasive. The translated
section of the Company law reads: “[[
Court No. 13-00142 Page 15
]].”
Id. (emphasis in Pl.’s Br.). Contrary to Maycarrier’s insistence,
this section of the Company Law does not “clearly” establish that
“[[ ]]” is the proper translation. Maycarrier
posits an alternative interpretation of the quoted language, but
does not provide any evidence demonstrating that Commerce’s
interpretation was erroneous. Again, an alternative interpretation
of the evidence, by itself, is insufficient to undermine Commerce’s
conclusion. See Consolo, 383 U.S. at 620.
(iii) Tax Records
Finally, Maycarrier alleges that Commerce’s analysis of
its tax records was unsupported by substantial evidence. Pl.’s Br.
at 33–36. According to Maycarrier, Commerce’s translation of the
CAP provisions was unreasonable because it is not qualified to
interpret Chinese law. See id. at 35 (comparing Commerce’s
translation to “the Chinese government interpreting U.S. tax laws
and how they are administered”). Maycarrier argues that, under the
CAP in Qingdao City, its tax records are confidential and
undiscoverable by internet search, and therefore it was
unreasonable for Commerce to expect to discover its tax records in
the online database. See Pl.’s Reply at 19. Maycarrier insists
Court No. 13-00142 Page 16
that Commerce should have verified this argument by consulting the
U.S. Embassy in Beijing, searching for the tax records of another
company registered in Qingdao City, or requesting information from
the Chinese government. See Pl.’s Br. at 35.
This argument is unavailing. Maycarrier does not provide
any authority supporting its position that Commerce is unqualified
to analyze the operation of foreign laws. See id. at 35.
Regardless, Commerce analyzed the terms of the CAP because
Maycarrier placed them onto the record to support its position. CR
108 at 1–4 (analyzing the terms of the CAP). Based on this
evidence, Commerce found that it should have been able to confirm
the existence of Maycarrier’s records on the online database. Id.
at 2–4. Maycarrier contests this interpretation, but it fails to
identify any record evidence supporting its argument other than its
own interpretation of the CAP. Pl.’s Br. at 35; Pl.’s Reply at 19.
Such an argument is inadequate to justify overturning Commerce’s
determination. See Consolo, 383 U.S. at 620. Furthermore,
Maycarrier’s insistence the Commerce was required to consult non-
record sources to produce evidence supporting Maycarrier’s
interpretation of the CAP is inapposite.4 See Qingdao Sea-line
4
Maycarrier also argues that Commerce’s translation of the
CAP and the business registration certificate constituted new
information on the record to which Commerce did not allow
Maycarrier a response. See Pl.’s Br. at 33, 35. However,
Maycarrier’s claim lacks merit because it originally translated its
enterprise status at “[[ ]]” and placed the
Court No. 13-00142 Page 17
Trading Co. v. United States, 36 CIT __, __, Slip Op. 12-39 at 19
(Mar. 21, 2012) (“[I]t was simply not Commerce's duty to help
[Plaintiff] create an adequate record to support its position.”).
Because Maycarrier fails to demonstrate that Commerce’s
determination was unsupported by substantial evidence, the court
finds that Commerce reasonably concluded that Maycarrier was
“essentially the same” as Naike. See Since Hardware, 37 CIT at __,
911 F. Supp. 2d at 1365 (citing Nippon Steel, 458 F.3d at 1350-51).
III. Maycarrier was not Eligible for a Separate Rate
Maycarrier also challenges Commerce’s decision not to
assign a separate rate. Pl.’s Br. at 24–25, 36–37. According to
Maycarrier, it satisfied the requirements for a separate rate,
having timely submitted its section A questionnaire addressing its
independence from the Chinese government. Id. at 24. Accordingly,
Maycarrier insists that Commerce should have assigned a separate
rate or transferred the evidence to the seventeenth administrative
review of fresh garlic from the PRC (“17th AR”), which covered the
period of Maycarrier’s sales. Id. at 36.
In antidumping duty proceedings, Commerce establishes an
individual rate for mandatory respondents and a country-wide rate
for all others. 19 U.S.C. § 1673d(c)(1)(B)(i). When merchandise
is from a non-market economy, as it is here, Commerce presumes that
untranslated sections of the CAP onto the record. See CR 94 at 1
& Exh. 2.
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all non-mandatory respondents are government controlled and
therefore those respondents are subject to the country-wide rate.
See Sigma Corp. v. United States, 117 F.3d 1401, 1405 (Fed. Cir.
1997). Commerce does allow a non-mandatory respondent to overcome
this presumption, however, if it can establish the absence of both
de jure and de facto government control. Id. If the non-mandatory
respondent makes such a showing, Commerce assigns a separate rate,
normally calculated by weight-averaging the individually-calculated
rates. See Changzhou Wujin Fine Chem. Factory Co. v. United
States, 37 CIT __, __, Slip Op. 13-127 at 3–4 (Oct. 2, 2013).
Here, Commerce determined that it had no basis to assign
Maycarrier a separate rate because it rescinded the review and was
no longer reviewing Maycarrier. PR 194 at 8–9. Maycarrier’s
insistence that Commerce was required to review its section A
questionnaire and assign a separate rate is not consistent with the
statutory framework for NSRs. The statute states that Commerce
shall conduct a NSR to “establish an individual weighted average
dumping margin.” 19 U.S.C. § 1675(a)(2)(B)(i) (emphasis added).
Once Commerce determined that Maycarrier was not a new shipper
eligible for an individual rate, the review ended and Maycarrier’s
goods remained subject to the rate already in place, the PRC-wide
rate. See Final Rescission, 78 Fed. Reg. at 18,317. Therefore,
Commerce properly determined that there was no basis to consider
Maycarrier’s separate rate eligibility. See 19 U.S.C. §
Court No. 13-00142 Page 19
1675(a)(2)(B)(i).
Alternatively, Maycarrier insists that Commerce erred in
failing to exercise its authority to transfer the record of the NSR
to the 17th AR. See Pl.’s Br. at 36–37. Maycarrier relies on Fresh
Garlic From the PRC: Final Rescission of NSRs of Jining Yifa Garlic
Produce Co., Ltd., Shenzhen Bainong Co., Ltd., and Yantai Jinyan
Trading Inc., 76 Fed. Reg. 52,315 (Aug. 22, 2011) (“Jinyan NSR”),
in which Commerce rescinded Yantai Jinyan Trading Inc.’s NSR and
transferred its record to the concurrent administrative review.
See Pl.’s Br. at 37. Commerce responds that Maycarrier failed to
exhaust its administrative remedies with regards to this claim
because it did not request that Commerce transfer the record during
the NSR. Def.’s Resp. Opp. Pl.’s Mot. J. Agency R. at 39 (“Def.’s
Resp.”). Accordingly, Commerce insists that the court should not
consider Maycarrier’s argument on the merits. Id.
As a general rule, the Court “shall, where appropriate,
require the exhaustion of administrative remedies.” 28 U.S.C. §
2637(d). “The exhaustion doctrine requires a party to present its
claims to the relevant administrative agency for the agency's
consideration before raising these claims to the Court.” Luoyang
Bearing Corp. v. United States, 28 CIT 733, 760, 347 F. Supp. 2d
1326, 1351 (2004) (citing Unemployment Compensation Comm'n v.
Aragon, 329 U.S. 143, 155 (1946)). However, the Court recognizes
certain exceptions to the rule: (1) where raising the claim would
Court No. 13-00142 Page 20
be futile; (2) where there has been an intervening court decision
that may materially affect Commerce’s determination; (3) where the
question is one of law and did not require further factual
development; and (4) where there was no reason to believe Commerce
would refuse to adhere to applicable precedent. See id. at 761
n.11, 347 F. Supp. 2d at 1352 n.11.
There is no dispute that Maycarrier did not request to
have the record transferred during the NSR. Def.’s Resp. at 39;
Pl.’s Reply at 25. Additionally, Maycarrier neither alleged that
Commerce failed to transfer evidence during the review, nor raised
the Jinyan NSR before Commerce in support of such a claim.
See Case Brief of Maycarrier (Feb. 11, 2013), A-570-831, CR 104.
Maycarrier instead argues that Commerce previously rejected its
request to participate in the 17th AR, and therefore would not have
accepted a transfer request. Pl.’s Reply at 25.
The futility exception arises where, if the exhaustion
requirement was enforced, “parties would be required to go through
obviously useless motions in order to preserve their rights.”
Corus Staal BV v. United States, 502 F.3d 1370, 1379 (Fed. Cir.
2007) (internal quotation marks omitted). A party may not rely on
this exception, however, simply because “an adverse decision may
have been likely.” Id.
Here, there is no evidence that the transfer request
would have been “obviously useless.” Maycarrier requested that
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Commerce transfer certain documents to the NSR from the 17th AR.
See Request for Clarification of Case Brief Schedule and Request
for Department to Place Surrogate Country and Surrogate Values Data
from the Garlic 17th AR on the Record of this NSR (Jan. 9, 2013),
A-570-831, PR 160. If Maycarrier wanted Commerce to transfer its
section A questionnaire or any other evidence to the concurrent
administrative review, it was aware of its right and had the
opportunity to do so. Accordingly, the futility exception does not
apply. Corus Staal, 502 F.3d at 1379. Because Maycarrier did not
request that Commerce transfer evidence to the 17th AR, it failed
to exhaust administrative remedies with regards to this claim. See
28 U.S.C. § 2637(d).
IV. Commerce did not Make an AFA determination
Finally, Maycarrier argues that in refusing to assign a
separate rate, Commerce effectively imposed an AFA rate without
first meeting the statutory requirements. Pl.’s Br. at 37.
Specifically, Maycarrier notes that Commerce did not find that it
failed to cooperate to the best of its ability during the review.
Id. Moreover, Maycarrier adds that the AFA rate is wrongful
because Commerce failed to corroborate the $4.71/kg rate during the
sixteenth administrative review of fresh garlic from the PRC (“16th
AR”). Id. at 38–46.
Where Commerce “finds that an interested party has failed
to cooperate by not acting to the best of its ability to comply
Court No. 13-00142 Page 22
with a request for information,” it “may use an inference that is
adverse to the interests of that party.” 19 U.S.C. § 1677e(b). If
it “relies on secondary information rather than on information
obtained in the course of an investigation or review” when making
such an inference, Commerce “shall, to the extent practicable,
corroborate that information from independent sources that are
reasonably at [its] disposal.” Id. at § 1677e(c).
Maycarrier’s argument is based on the mistaken belief
that Commerce “imposed” the AFA rate in the Final Rescission. As
noted above, Commerce rescinded the NSR and, as a result,
Maycarrier’s entries remained subject to the PRC-wide rate. Final
Rescission, 78 Fed. Reg. 18,317. Commerce did not make a decision
on the merits concerning the assessment rate on Maycarrier’s
entries. See PR 194 at 8–9. Accordingly, Commerce neither made an
AFA determination nor imposed an AFA rate.5 See Huaiyang Hongda
Dehydrated Vegetable Co. v. United States, 28 CIT 1944, 1953–54
(2004) (not published in the Federal Supplement) (Commerce did not
impose an AFA rate where it rescinded an administrative review and
the AFA rate from an earlier review remained in place).
Furthermore, the only review currently before the court
is the Final Rescission. Because Commerce did not make an AFA
5
Commerce argues that Maycarrier failed to exhaust its
administrative remedies with regards to its AFA claim. See Def.’s
Resp. at 30–34. As Commerce did not make an AFA determination the
court need not reach a decision on this issue.
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determination and did not impose any rate based upon secondary
information, PR 194 at 3–9, there was no information that Commerce
was required to corroborate in the NSR. See 19 U.S.C. § 1677e(c).
Maycarrier’s corroboration claim concerning the 16th AR is not
properly before the court and the court lacks jurisdiction over
this claim. See Huaiyang Hongda, 28 CIT at 1954 (finding that the
Court lacks jurisdiction over plaintiff’s claim that Commerce
failed to corroborate an AFA rate that was not imposed during the
proceeding before the Court).
CONCLUSION
The Final Rescission was supported by substantial
evidence and otherwise in accordance with law. Because Commerce
rescinded the review, Maycarrier was not entitled to a separate
rate. Additionally, Commerce did not impose an AFA rate and the
court lacks jurisdiction over Maycarrier’s claim concerning
corroboration of the assessment rate. Plaintiff’s motion for
judgment on the agency record is denied and judgment will be
entered accordingly.
/s/ Nicholas Tsoucalas
Nicholas Tsoucalas
Senior Judge
Date: December 13, 2013
New York, New York