Jinfu Trading Co. v. United States

Slip Op. 08-38

UNITED STATES COURT OF INTERNATIONAL TRADE

:
JINFU TRADING CO., LTD., :
:
Plaintiff, :
:
v. :
: Before: Richard K. Eaton, Judge
UNITED STATES, :
: Court No. 04-00597
Defendant, :
:
and :
:
AMERICAN HONEY PRODUCERS :
ASSOCIATION and SIOUX HONEY :
ASSOCIATION, :
:
Def.-Ints. :
:

OPINION

[United States Department of Commerce’s final results rescinding
plaintiff’s new shipper review sustained.]

Dated: April 4, 2008

Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP (Bruce M.
Mitchell, Ned H. Marshak, and Elaine F. Wang), for plaintiff.

Jeffrey S. Bucholtz, Acting Assistant Attorney General; Jeanne E.
Davidson, Director, Commercial Litigation Branch, Civil Division,
United States Department of Justice; Reginald T. Blades Jr.,
Assistant Director, International Trade Section, Commercial
Litigation Branch, Civil Division, United States Department of
Justice; Jane C. Dempsey, Attorney, U.S. Department of Justice,
Civil Division, Commercial Litigation Branch; Office of the Chief
Counsel, Import Administration, United States Department of
Commerce (Mildred E. Steward), of counsel, for defendant.

Kelley Drye Collier Shannon (Michael J. Coursey and R. Alan
Luberda), for defendant-intervenors.
Court No. 04-00597 Page 2

Eaton, Judge: Before the court are the United States

Department of Commerce’s (“Commerce” or the “Department”) final

results of its remand redetermination pursuant to the court’s

order in Jinfu Trading Co., Ltd. v. United States, 31 CIT __,

Slip Op. 07-95 (June 13, 2007) (not reported in the Federal

Supplement) (“Jinfu II”), and the comments of plaintiff Jinfu

Trading Co., Ltd. (“Jinfu PRC”), and defendant-intervenors

American Honey Producers Association and Sioux Honey Association

responsive thereto. See Final Results of Redetermination

Pursuant to Court Remand (Dep’t of Commerce Oct. 9, 2007)

(“Remand Redetermination”); Pl.’s Comments Remand Redetermination

(“Pl.’s Comments”); Def.-Ints.’ Resp. to Remand Redetermination

(“Def.-Ints.’ Resp.”).

The central issue in this litigation is whether Jinfu PRC

was affiliated with either Yousheng Trading (U.S.A.) Co., Ltd.

(“Yousheng USA”) or its successor Jinfu Trading (U.S.A.) Co.,

Ltd. (“Jinfu USA”)1 on or before November 2, 2002.2 Plaintiff

1
For purposes of confidentiality, the court will employ the
same shorthand references used in Jinfu II. Specifically, Jinfu
USA’s sole employee is referred to as “Mr. A”; the chief
executive officer of Jinfu PRC as “CEO B”; the unaffiliated
United States buyer as “Customer C”; and the original owner of
what was then Yousheng USA as “Mr. D.” The attorney retained in
October 2002 to aid in the purported transfer of ownership of
Yousheng USA/Jinfu USA to CEO B is referred to as “Attorney E.”
2
Yousheng USA was incorporated on October 4, 2002, in
Washington State, and renamed Jinfu USA on November 12, 2002.
Therefore, to avoid any confusion, the court will refer to the
(continued...)
Court No. 04-00597 Page 3

has maintained that CEO B wholly owned Yousheng USA/Jinfu USA by

November 2, 2002, or, in the alternative, that CEO B exercised

operational control over Yousheng USA/Jinfu USA prior to that

date.

In Jinfu Trading Co., Ltd. v. United States, 30 CIT __, Slip

Op. 06-137 (Sept. 7, 2006) (not reported in the Federal

Supplement) (“Jinfu I”), the court considered whether Commerce’s

determination that Jinfu PRC was not affiliated——through either

ownership or control——with Yousheng USA/Jinfu USA on November 2,

2002 was supported by substantial evidence. The court sustained

the Department’s finding on the issue of ownership, but remanded

on the issue of control. See Jinfu I, 30 CIT at __, Slip Op. 06-

137 at 25, 32-33.

On remand, Commerce again determined that CEO B did not

control Yousheng USA/Jinfu USA at the relevant time. See Final

Results of Redetermination Pursuant to Remand (Dep’t of Commerce

Dec. 5, 2006) (“First Remand Redetermination”). Plaintiff

challenged this determination, and in Jinfu II, the court

remanded Commerce’s decision for the second time. See generally

Jinfu II, 31 CIT at __, Slip Op. 07-95 at 9-23. The court found

2
(...continued)
entity incorporated as Yousheng USA and subsequently renamed
Jinfu USA as “Yousheng USA/Jinfu USA,” except where it is
necessary to distinguish these entities’ sequential existence.
See Jinfu Trading Co., Ltd. v. United States, 30 CIT __, __, Slip
Op. 06-137 at 2 n.2 (Sept. 7, 2006) (not reported in the Federal
Supplement).
Court No. 04-00597 Page 4

that Commerce’s conclusions were not supported by substantial

evidence because of its failure to fully explain the evidence on

the record relating to the issue of control. Therefore, on

remand, Commerce was directed to: (1) consider the court’s

opinion and provide an explanation as to why the contents of

certain faxes between Mr. A and CEO B, if credible and reliable,

did not support a conclusion that CEO B controlled Yousheng

USA/Jinfu USA; and (2) reopen the record to allow plaintiff to

place evidence on the record concerning the issue of affiliation.

See Jinfu II, 31 CIT at __, Slip Op. 07-95 at 24. Specifically,

plaintiff was provided with an opportunity to submit evidence

concerning the authenticity of the disputed faxes, CEO B’s

involvement in Customer C’s pre-payment of the sales price for

the claimed new shipper sale, and the facts behind Mr. A’s

obtaining a loan from Customer C to finance Yousheng USA/Jinfu

USA transactions. Id. at __, Slip Op. 07-95 at 24.

On remand, Commerce reopened the record; plaintiff, however,

declined to present any new evidence. See Remand Redetermination

at 2. Commerce now offers two independent reasons for its

determination that CEO B did not control Yousheng USA/Jinfu USA:

(1) plaintiff is unable to establish that the faxes are

authentic; and (2) the record evidence clearly demonstrates Mr.

A’s independence in managing Yousheng USA/Jinfu USA. See Def.’s

Resp. Jinfu’s Comments Regarding Remand Redetermination (“Def.’s
Court No. 04-00597 Page 5

Resp.”) 7-12. Jurisdiction lies pursuant to 28 U.S.C. § 1581(c)

(2000) and 19 U.S.C. § 1516a(a)(2)(B)(iii). For the following

reasons, the Department’s Remand Redetermination is sustained.

BACKGROUND

The facts of this matter are contained in Jinfu I and Jinfu

II. The court now sets forth only those facts relevant to this

opinion.

Plaintiff seeks judicial review of the Department’s

rescission of its new shipper review for entries of honey from

the People’s Republic of China (“PRC”).3 See Honey from the PRC,

69 Fed. Reg. 64,029 (Dep’t of Commerce Nov. 3, 2004) (notice of

final results and final rescission, in part). Plaintiff sought

the new shipper review based on a transaction that took place on

November 2, 2002. On that date, Yousheng USA/Jinfu USA

consummated a sale of honey, acquired from Jinfu PRC, to Customer

C. Plaintiff contends that, because Yousheng USA/Jinfu USA and

Jinfu PRC were affiliated when the sale took place, the

3
A “new shipper review” involves a shipper that has not
previously exported particular subject merchandise, and thus has
been described as a proceeding where “Commerce is essentially
conducting a new antidumping review that is specific to a
particular producer [or exporter].” Tianjin Tiancheng Pharm.
Co., Ltd. v. United States, 29 CIT __, __, 366 F. Supp. 2d 1246,
1249 (2005).
Court No. 04-00597 Page 6

transaction constituted a new shipper sale.4

In its analysis, Commerce is guided by 19 C.F.R.

§ 351.214(b)(2)(iv)(C), which provides that a party seeking a new

shipper review must produce “[d]ocumentation establishing . . .

[t]he date of the first sale to an unaffiliated customer in the

United States . . . .” Before Commerce, plaintiff submitted

documentation to support its claim that the new shipper sale was

made by Jinfu PRC (via Yousheng USA/Jinfu USA) to Customer C on

November 2, 2002. Based on that documentation, Commerce

initiated the new shipper review. Upon concluding that the

documentation was insufficient to establish that Jinfu PRC was

affiliated with Yousheng USA/Jinfu USA as of that date, however,

Commerce rescinded the review. The Department took this action

because, absent affiliation, the sale to Customer C could not be

considered a sale by Jinfu PRC to Customer C. Jinfu I, 30 CIT at

__, Slip Op. 06-137 at 9-11.

In Jinfu I, plaintiff insisted that Commerce erred when it

concluded that CEO B did not own or control Yousheng USA/Jinfu

USA on November 2, 2002. After reviewing the evidence, the court

4
The question of affiliation is governed by 19 U.S.C.
§ 1677(33). The statute provides, in relevant part, that the
following persons are deemed “affiliated”: (E) “Any person
directly or indirectly owning [at least 5% of the voting shares
of a company]”; (F) “Two or more persons directly or indirectly
controlling, controlled by, or under common control with, any
person”; and, (G) “Any person who controls any person and such
other person.” 19 U.S.C. § 1677(33).
Court No. 04-00597 Page 7

agreed with Commerce that plaintiff had not established ownership

of Yousheng USA/Jinfu USA on the sale date. See Jinfu I, 30 CIT

at __, Slip Op. 06-137 at 25. The court, however, was

unconvinced by Commerce’s analysis on the issue of control in

light of Commerce’s failure to address record evidence that

appeared to demonstrate “that CEO B not only had the potential to

influence what was then Yousheng USA’s pricing decisions, but, in

fact, exercised that control . . . .” See id. at __, Slip Op.

06-137 at 28. The court was particularly concerned that Commerce

had not explained why it did not find affiliation based on an

exchange of faxes by which CEO B apparently authorized Mr. A to

consummate the relevant sale with Customer C. See id. at __,

Slip Op. 06-137 at 28-31. In remanding the matter to Commerce,

however, the Jinfu I Court did not direct Commerce to find that

Jinfu PRC and Yousheng USA were affiliated (by virtue of

control). Instead, Jinfu I instructed Commerce, if it did not

concur with the court’s findings, to “reopen the record to

provide plaintiff with an opportunity to . . . [submit] further

evidence with respect to affiliation and provide an explanation

of that evidence.” See id. at __, Slip Op. 06-137 at 32-33.5

5
In determining affiliation, Commerce is guided by its
regulations, promulgated under 19 U.S.C. § 1677(33), which
provide, in relevant part, that “[Commerce] will not find that
control exists . . . unless the relationship has the potential to
impact decisions concerning the production, pricing, or cost of
the subject merchandise.” 19 C.F.R. § 351.102(b).
Court No. 04-00597 Page 8

After this court’s initial remand, plaintiff submitted

additional evidence to Commerce concerning both the purported

purchase and affiliation. See generally Jinfu II, 31 CIT at __,

Slip Op. 07-95 at 15. Following consideration of plaintiff’s new

submissions, Commerce again found that “the record [did] not

support a finding that CEO B had control over Mr. A’s business

decisions, particularly those dealing with pricing.” Id. at __,

Slip Op. 07-95 at 9 (citations omitted).

Plaintiff then sought a further remand arguing that the

record evidence established CEO B’s control of Yousheng USA/Jinfu

USA at the relevant time. Plaintiff also claimed that Commerce

made a procedural error in issuing its redetermination without

giving plaintiff the opportunity to address the authenticity of

the faxes, and Mr. A’s apparent independence in dealing with

Customer C. See id. at __, Slip Op. 07-95 at 19.

Because the authenticity (distinct from the probative value)

of the faxes, and the circumstances surrounding Mr. A’s business

decisions, were first raised in Commerce’s draft remand

redetermination, the court remanded the matter again. See id. at

__, Slip Op. 07-95 at 22-23. The court issued this remand, in

part, because plaintiff had no notice of the prominent role that

the authenticity of the faxes would play in Commerce’s decision

until after the record was closed. See id. at __, Slip Op. 07-95

at 21-23. The court instructed Commerce to: (1) reopen the
Court No. 04-00597 Page 9

record to allow plaintiff to submit new evidence demonstrating

the authenticity of the faxes and the circumstances surrounding

Mr. A’s business decisions regarding Customer C; and (2) explain

why, if the faxes were shown to be genuine, they would not

demonstrate that CEO B had control over Yousheng USA/Jinfu USA’s

pricing decisions. Id. at __, Slip Op. 07-95 at 24.

In its second Remand Redetermination, Commerce reaffirmed

its earlier determination and further explained its conclusion

that CEO B did not control Yousheng USA/Jinfu USA at the relevant

time. Remand Redetermination at 13. Specifically, Commerce

found that Mr. A routinely made unilateral decisions affecting

Yousheng USA/Jinfu USA, that there is no undisputed evidence of

CEO B ever exerting authority over Mr. A, that the faxes’

authenticity had not been demonstrated, and that, even if shown

to be genuine, they would not evidence CEO B’s control. See

Def.’s Resp. 7-11 (citations omitted). Although Commerce gave

plaintiff the opportunity to dispute its conclusions with

additional evidence, plaintiff declined to do so. Remand

Redetermination at 2. Rather, before this court, plaintiff

reargues the issues of ownership and control, by highlighting the

same evidence it previously addressed and by bringing to the

attention of the court a recent decision of the Court of Appeals

for the Federal Circuit (the “Federal Circuit”). Pl.’s Comments

10-19.
Court No. 04-00597 Page 10

STANDARD OF REVIEW

The court reviews Commerce’s Remand Redetermination under

the substantial evidence test. See 19 U.S.C. § 1516a(b)(1)(B)(i)

(“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.”).

“Substantial evidence is ‘such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.’” Huaiyin

Foreign Trade Corp. (30) v. United States, 322 F.3d 1369, 1374

(Fed. Cir. 2003) (quoting Consol. Edison Co. v. NLRB, 305 U.S.

197, 229 (1938)). The possibility of drawing two inconsistent

conclusions from the record will not prevent the agency

determination from being supported by substantial evidence. See

Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966).

Accordingly, the question before the court is not whether

the court agrees with the determination made by Commerce. Nippon

Steel Corp. v. United States, 458 F.3d 1345, 1352 (Fed. Cir.

2006). Rather, the court “must affirm [the Department’s]

determination if it is reasonable and supported by the record as

a whole, even if some evidence detracts from the [Department’s]

conclusion.” Id. (citations omitted).

DISCUSSION

There are two main issues presently before the court.
Court No. 04-00597 Page 11

First, the court must determine whether Commerce has adequately

explained and supported with substantial evidence its finding

that the faxes do not demonstrate CEO B’s control over Yousheng

USA/Jinfu USA as of November 2, 2002. Second, at plaintiff’s

request, the court will reconsider its previous holding on the

issue of ownership in light of the Federal Circuit’s recent

decision in Crawfish Processors Alliance v. United States, 477

F.3d 1375 (Fed. Cir. 2007).

I. Commerce’s Determination That CEO B Did Not Exercise
Control Over Yousheng USA/Jinfu USA Is Sustained

In Jinfu II, the court remanded this matter to Commerce with

instructions to “provide an explanation as to why the contents of

the faxes exchanged between Mr. A and CEO B, if credible and

reliable, do not support a conclusion that CEO B controlled Jinfu

USA.” Jinfu II, 31 CIT at __, Slip Op. 07-95 at 24. In

addressing this instruction, Commerce relies heavily on the

credibility and reliability of the faxes. Thus, Commerce

questions the faxes’ authenticity and further concludes that the

remaining evidence on the record, viewed in light of the

plaintiff’s overall credibility, does not support the conclusion

that CEO B influenced Yousheng USA/Jinfu USA’s pricing decisions.

Remand Redetermination at 7-8.

Commerce offers several reasons for doubting the faxes’

authenticity. First, the faxes lack the type of data that,
Court No. 04-00597 Page 12
according to Commerce, would normally indicate the date and time

of transmission. See Def.’s Resp. 9 (citing Remand

Redetermination at 8). In addition, although given the

opportunity to do so, plaintiff has not supplied a log entry or

date stamp for these faxes. For Commerce, the absence of any of

this evidence makes it impossible to conclude that they were sent

at all, or that they were sent at the time plaintiff claims. See

Remand Redetermination at 8. Notably, despite having sought the

opportunity to submit additional evidence of the faxes’

authenticity, plaintiff now asserts that “additional evidence is

not necessary at this time.” Pl.’s Comments 15.

For their part, defendant-intervenors note that other faxes

sent by Mr. A contain the information line “showing his name and

the date and time the facsimile was sent.” See Def.-Ints.’ Resp.

4 (citing Letter from Jinfu PRC to Commerce, Oct. 23, 2006, at

Ex. 22). Defendant-intervenors also note that the faxes at issue

were not provided to Commerce until late in the review process

and suggest that this untimeliness raises “the possibility that

the document was created after the fact for purposes of the

second review.” See Def.-Ints.’ Resp. 4-5. They further suggest

that this explains plaintiff’s failure to capitalize on the

opportunity to supply additional evidence authenticating the

faxes. See Def.-Ints.’ Resp. 4-5.

Further, Commerce insists that plaintiff’s submission of
Court No. 04-00597 Page 13
backdated documentation earlier in the investigation undermines

its credibility. See First Remand Redetermination at 10.

Commerce notes that, as part of its efforts to document that CEO

B owned Yousheng USA/Jinfu USA on November 2, 2002, plaintiff

submitted a backdated Certificate of Transfer of Shares, along

with supporting documentation, including amended articles of

incorporation and by-laws, and a receipt for legal services

preparing these documents, all of which were described by

Commerce as having “credibility problems.” See Jinfu II, 31 CIT

at __, Slip Op. 07-95 at 10 n. 6 (citations omitted); see also

Issues and Decision Memorandum for the Final Results and Final

Rescission, In Part, of the New Shipper Review of the Antidumping

Duty Order on Honey from the PRC (Dep’t of Commerce Oct. 25,

2004) Comments 1 and 2. For Commerce, this behavior is

reflective of plaintiff’s overall credibility and sufficient to

call into question the authenticity of the faxes, particularly

when there is no other evidence indicating that they were sent on

the date plaintiff claims or indeed that they were sent at all.

See Jinfu II, 31 CIT at __, Slip Op. 07-95 at 10 n. 6.

Commerce also argues that the nature of the relationship

between Mr. A and CEO B suggests that CEO B did not exercise

operational control over Yousheng USA/Jinfu USA prior to November

2, 2002. See Def.’s Resp. 9-10. In fact, apart from Mr. A’s

statements in his affidavit, the only documented authorization of
Court No. 04-00597 Page 14
any action taken by Mr. A is the disputed exchange of faxes. See

Jinfu II, 31 CIT at __, Slip Op. 07-95 at 15. On the other hand,

it is undisputed that Mr. A negotiated the price and terms of the

relevant sale with Customer C without the involvement of CEO B,

and that the merchandise was already in transit to Customer C’s

end-user at the time that the faxes were supposedly exchanged.

See Def.’s Resp. 8-9. In addition, Mr. A appears to have

accepted partial pre-payment of the relevant shipment and

arranged a loan from Customer C to Yousheng USA/Jinfu USA without

CEO B’s approval. See Jinfu II, 31 CIT at __, Slip Op. 07-95 at

12-13. Commerce interprets these facts to mean that the

transaction was already finalized when the faxes were purportedly

sent. From this conclusion, according to Commerce, it follows

that Mr. A acted unilaterally and without authorization when

making business decisions in consummating the sale. Def.’s Resp.

8-9.

As noted, despite being given the opportunity to do so,

plaintiff has failed to offer any evidence demonstrating when the

faxes were sent or whether they were sent at all. Commerce,

then, was not unreasonable in questioning the authenticity given

the timing of the submission and plaintiff’s previous submission

of fraudulent documentation in this matter. See U.S. Steel Group

v. United States, 96 F.3d 1352, 1357 (Fed. Cir. 1996) (“It is the

[Department’s] task to evaluate the evidence it collects during
Court No. 04-00597 Page 15
its investigation. Certain decisions, such as the weight to be

assigned a particular piece of evidence, lie at the core of that

evaluative process.”). It is clear that, absent the disputed

faxes, the weight of the evidence tends to indicate that Mr. A

acted alone in managing Yousheng USA/Jinfu USA. Accordingly,

Commerce’s determination that CEO B did not exercise control over

Mr. A at the time of the relevant sale is supported by

substantial evidence and is sustained.

II. Commerce’s Determination that CEO B Did Not Own
Yousheng USA/Jinfu USA on November 2, 2002 Is Sustained

The court now reconsiders plaintiff’s contention, that CEO B

owned Yousheng USA/Jinfu USA on the date of the purported new

shipper sale. This court has previously held “that Commerce was

not unreasonable in concluding that a company named Jinfu USA did

not exist on November 2, 2002, and that CEO B did not own Jinfu

USA or its predecessor Yousheng USA” until some later date.

Jinfu I, 30 CIT at __, Slip Op. 06-137 at 22. Plaintiff has

asked the court to revisit that holding in light of the Federal

Circuit’s recent decision in Crawfish Processors Alliance v.

United States, 477 F.3d 1375 (Fed. Cir. 2007) (“Crawfish

Processors”). See Pl.’s Comments 15-19.

The issue before the Court in Crawfish Processors concerned

the type of evidence that could be relied upon to provide

substantial evidence that a transfer of ownership had taken place
Court No. 04-00597 Page 16
sufficient to demonstrate affiliation. See Crawfish Processors,

477 F.3d at 1380-81. In that case, the party claiming

affiliation purchased stock in the other entity with a promissory

note committing the purchaser to pay the stock purchase price, in

merchandise, over a period of time. See id. at 1378. Commerce

rejected the purchaser’s affiliation claim, asserting that 19

U.S.C. § 1677(33) requires that a “transfer of cash or

merchandise” be fully effectuated within the period of review in

order to demonstrate ownership, and that this did not occur here.

See id. at 1380-81. The Federal Circuit rejected Commerce’s

requirement that payment be made within the period of review,

stating that “[t]he statute imposes no time requirement on

financial transactions showing affiliation.” Id. at 1381.

Plaintiff now argues that because the court’s previous

ruling on the question of ownership was based, in part, on the

fact that CEO B did not pay for his interest in Yousheng

USA/Jinfu USA until more than one year after the new shipper

sale, Crawfish Processors requires a finding that CEO B owned the

company on November 2, 2002. See Pl.’s Comments 17. The court

finds that plaintiff misconstrues the holding of Crawfish

Processors and overstates its application to the present matter.

The critical distinction between these cases is that the

petitioners in Crawfish Processors demonstrated that the transfer

of ownership itself took place notwithstanding the method of
Court No. 04-00597 Page 17
payment; here, plaintiff cannot demonstrate that CEO B acquired

Yousheng USA/Jinfu USA by November 2, 2002. To the contrary, the

record in this case demonstrates that CEO B failed to acquire

Yousheng USA/Jinfu USA prior to the November 2, 2002 sale. The

court has previously detailed six independent reasons in support

of this conclusion. See Jinfu I, 30 CIT at __, Slip Op. 06-137

at 22-25. They are that: (1) Yousheng USA was not renamed Jinfu

USA until at least November 8, 2002; (2) either Mr. A or Mr. D

owned Yousheng USA from its date of incorporation at least until

its name was changed to Jinfu USA; (3) the Certificate of

Transfer of Shares explicitly stated that it is to be “EFFECTIVE

UPON EXECUTION BY THE UNDERSIGNED” and that the execution took

place on December 30, 2003; (4) CEO B did not pay Mr. D the

consideration for the shares until more than a year after

November 2, 2002; (5) the portion of the November 18, 2002 Master

Application for Jinfu USA’s business license that asked if

Yousheng USA was owned, controlled or affiliated with another

entity was left blank; and (6) the tax return stating that Jinfu

USA was wholly owned by CEO B was dated June 13, 2003, unsigned,

and may never have been filed. See id. at __, Slip Op. 06-137 at

22-24. Even if the court were to “discount[] the importance of

the time when final payment was made,” as urged by plaintiff, it

still could not conclude that CEO B acquired Yousheng USA/Jinfu

USA prior to November 2, 2002 because there is no documentary
Court No. 04-00597 Page 18
evidence that the acquisition took place.

Plaintiff, however, continues to argue that a contract of

sale need not be in writing to be effective. See Pl.’s Comments

17-19. While this may be true, plaintiff has offered no reliable

evidence demonstrating when the contract to transfer ownership of

Yousheng USA/Jinfu USA was formed. Nor, for that matter, is

there any evidence that any claimed oral contract provided for

payment at a future date, an important element in the holding of

Crawfish Processors.

As previously noted in Jinfu I, all of the evidence

plaintiff has presented regarding CEO B’s ownership of Yousheng

USA/Jinfu USA is both equivocal and dated after November 2, 2002.

See Jinfu I, 30 CIT at __, Slip Op. 06-137 at 22. Neither the

holding of Crawfish Processors nor “basic principles of contract

law” can save plaintiff from its failure to produce convincing

evidence of when the transfer of ownership took place.

Therefore, the court continues to find that Commerce’s

determination that CEO B did not own Jinfu USA or its predecessor

Yousheng USA on November 2, 2002 was supported by substantial

evidence, and as such, must be sustained.
Court No. 04-00597 Page 19
CONCLUSION

Accordingly, the court finds that Commerce’s determination

that Jinfu PRC was not affiliated with Yousheng USA/Jinfu USA on

November 2, 2002 was supported by substantial evidence.

Therefore, the court sustains Commerce’s Remand Redetermination.

Judgment shall be entered accordingly.

/s/Richard K. Eaton
Richard K. Eaton

Dated: April 4, 2008
New York, New York