Slip Op. 08-16
UNITED STATES COURT OF INTERNATIONAL TRADE
CHINA PROCESSED FOOD IMPORT &
EXPORT COMPANY,
Plaintiff,
v.
UNITED STATES, Before: Timothy C. Stanceu, Judge
Defendant, Court No. 04-00503
and
COALITION FOR FAIR PRESERVED
MUSHROOM TRADE,
Defendant-Intervenor.
OPINION
[Denying plaintiff’s motion for judgment upon the agency record and dismissing action]
Dated: January 31, 2008
Trade Pacific PLLC (Robert G. Gosselink) for plaintiff China Processed Food Import &
Export Company.
Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jeanne E. Davidson, Director,
Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United
States Department of Justice (Richard P. Schroeder); Quentin M. Baird, Philip J. Curtin, and
Jonathan M. Zielinski, Office of Chief Counsel for Import Administration, United States
Department of Commerce, of counsel, for defendant.
Kelley Drye Collier Shannon (Michael J. Coursey and Adam H. Gordon) for defendant-
intervenor Coalition for Fair Preserved Mushroom Trade.
Stanceu, Judge: China Processed Food Import & Export Company (“plaintiff” or
“COFCO”) challenges the final administrative determination (“Final Results”) that the
International Trade Administration, United States Department of Commerce (“Commerce” or the
Court No. 04-00503 Page 2
“Department”) issued in the fourth administrative review of an antidumping duty order entered
on certain preserved mushrooms (“subject merchandise”) from the People’s Republic of China
(“China” or the “PRC”). See Certain Preserved Mushrooms From the People’s Republic of
China: Final Results of Sixth Antidumping Duty New Shipper Review and Final Results and
Partial Rescission of the Fourth Antidumping Duty Admin. Review, 69 Fed. Reg. 54,635 (Sept. 9,
2004) (“Final Results”). Plaintiff moves pursuant to USCIT Rule 56.2 for judgment upon the
agency record, arguing that the Final Results were unlawful because Commerce abused its
discretion and acted unfairly in applying to COFCO retroactively a change in the methodology
for determining the normal value of COFCO’s subject merchandise. Plaintiff, however, does not
challenge the new methodology on the merits.
Under the new methodology, which Commerce applied in the fourth administrative
review but not in the antidumping duty investigation or in a previous administrative review of the
antidumping duty order, Commerce treated COFCO and its affiliated producers and exporters as
a single entity. When determining the normal value of COFCO’s exports of subject
merchandise, Commerce used not only data on the factors of production associated with the
actual producer of the merchandise that COFCO exported to the United States, but also factors-
of-production data of an affiliated producer that did not produce that merchandise. Coalition for
Fair Preserved Mushroom Trade, the petitioner in the antidumping duty investigation resulting in
the antidumping duty order (“petitioner”) and the party that advocated use of the new
methodology in the fourth administrative review, sought and was granted defendant-intervenor
status but did not further participate in this litigation. See id. at 54,635 n.3. Because plaintiff, in
moving for judgment upon the agency record, did not challenge on the merits the method by
Court No. 04-00503 Page 3
which Commerce calculated the normal value of COFCO’s merchandise in the fourth
administrative review, and because Commerce did not exceed its discretion in deciding not to
continue following the method by which it determined such normal value prior to the fourth
administrative review, the court denies plaintiff’s motion for judgment upon the agency record
and, pursuant to USCIT Rule 56.2(b), dismisses this action.
I. BACKGROUND
A. The Investigation and the First, Second, and Third Administrative Reviews
Commerce issued an antidumping duty order on the subject merchandise in 1999. Notice
of Amendment of Final Determination of Sales at Less Than Fair Value and Antidumping Duty
Order: Certain Preserved Mushrooms From the People’s Republic of China, 64 Fed. Reg. 8308
(Feb. 19, 1999) (“Order”). COFCO, an exporter of the subject merchandise in China, purchased
the subject merchandise that it exported to the United States during the period of investigation
from two mushroom producers with which it was affiliated, Zishan Cannery Canned Food
Factory (now known as Fujian Zishan Group Co., Ltd. (“Fujian Zishan”)) and COFCO (Longhai)
Food, Inc. (“Longhai”). Mem. of P. & A. in Supp. of COFCO’s Mot. for J. upon the Agency
R. 2 (“COFCO’s Mem. of P. & A.”). Commerce determined in the investigation that the subject
merchandise COFCO exported to the United States was sold at less than fair value and applied to
that merchandise an antidumping duty margin of 121.47 percent. Order, 64 Fed. Reg. at 8310.
In the final less-than-fair-value determination that concluded the antidumping duty investigation,
Commerce identified various affiliates of COFCO but did not, in discussing its calculation of the
normal value of COFCO’s merchandise or its determination of an antidumping duty margin for
COFCO, discuss whether COFCO and any of its affiliates should be treated as a single entity.
Court No. 04-00503 Page 4
See Notice of Final Determination of Sales at Less Than Fair Value: Certain Preserved
Mushrooms from the People’s Republic of China, 63 Fed. Reg. 72,255, 72,255-56, 72,258
(Dec. 31, 1998)1; Notice of Prelim. Determination of Sales at Less Than Fair Value and
Postponement of Final Determination: Certain Preserved Mushrooms From the People’s
Republic of China, 63 Fed. Reg. 41,794, 41,796, 41,799-800 (Aug. 5, 1998).
After issuance of the antidumping duty order, COFCO stopped purchasing subject
merchandise from Fujian Zishan and Longhai, producers that processed, but did not grow,
mushrooms, and began to purchase solely from another mushroom producer with which it was
affiliated, Fujian Yu Xing Fruit & Vegetable Foodstuff Development Co. (“Yu Xing”), a
producer that did grow mushrooms. COFCO’s Mem. of P. & A. 3; Certain Preserved
Mushrooms From the People’s Republic of China: Prelim. Results of Sixth New Shipper Review
and Prelim. Results and Partial Rescission of Fourth Antidumping Duty Admin. Review, 69 Fed.
Reg. 10,410, 10,413 (Mar. 5, 2004) (“Prelim. Results”). “COFCO believed that the primary
reason for its 127.47 [sic] percent antidumping margin was that Fujian Zishan’s and [Longhai’s]
production processes did not take advantage of vertical integration, and that the production costs
and normal values calculated by Commerce were higher than they otherwise might have been had
Fujian Zishan and [Longhai] grown mushrooms instead of purchasing them.” COFCO’s Mem.
of P. & A. 3.
1
Commerce identified China National Cereals, Oils, & Foodstuffs Import & Export Corp.
as COFCO’s owner. It also identified Xiamen Jiahua Import & Export Trading Co., Ltd.
(“Xiamen Jiahua”) as COFCO’s affiliated exporter and Xiamen Special Economic Trade Group
Cereals, Oils, & Foodstuffs Import & Export Company as Xiamen Jiahua’s owner. Notice of
Final Determination of Sales at Less Than Fair Value: Certain Preserved Mushrooms from the
People’s Republic of China, 63 Fed. Reg. 72,255, 72,255-56 (Dec. 31, 1998).
Court No. 04-00503 Page 5
In the first administrative review, Commerce calculated the normal value of COFCO’s
merchandise based on the factors-of-production data reported by COFCO’s sole producer,
Yu Xing, for the period August 5, 1998 through January 31, 2000. See Prelim. Results of First
New Shipper Review and First Antidumping Duty Admin. Review: Certain Preserved Mushrooms
From the People’s Republic of China, 65 Fed. Reg. 66,703, 66,706-07 (Nov. 7, 2000)
(identifying Yu Xing as COFCO’s supplier). Commerce considered and rejected petitioner’s
objection that Yu Xing’s factors-of-production data were unreliable. See Issues and Decision
Mem. for the Antidumping Duty Admin. and New Shipper Reviews on Certain Preserved
Mushrooms from the People’s Republic of China – Aug. 5, 1998, through Jan. 31, 2000 at 1-2,
18-19 (May 31, 2001). Commerce determined an antidumping duty margin of 0.00 percent for
entries of subject merchandise exported by COFCO during the period of August 5, 1998 through
January 31, 2000. See Final Results of First New Shipper Review and First Antidumping Duty
Admin. Review: Certain Preserved Mushrooms From the People’s Republic of China, 66 Fed.
Reg. 31,204, 31,205 (June 11, 2001). From the published decision concluding the first
administrative review, it does not appear that either petitioner or Commerce considered the
possibility of the Department’s collecting and using data from COFCO’s other affiliates in
determining the normal value of COFCO’s merchandise. See id. at 31,204-06.
Commerce conducted two additional administrative reviews of the antidumping duty
order before the administrative review at issue in this case. However, upon petitioner’s request,
the second and third administrative reviews were rescinded with respect to COFCO. Certain
Preserved Mushrooms From the People’s Republic of China: Prelim. Results of New Shipper
Review and Prelim. Results and Partial Rescission of Second Antidumping Duty Admin. Review,
Court No. 04-00503 Page 6
67 Fed. Reg. 10,128, 10,129 (Mar. 6, 2002) (covering the period February 1, 2000 through
January 31, 2001); Certain Preserved Mushrooms from the People’s Republic of China: Notice
of Partial Rescission of Antidumping Duty Admin. Review, 67 Fed. Reg. 53,914, 53,914
(Aug. 20, 2002) (covering the period February 1, 2001 through January 31, 2002). Accordingly,
the assessment rate for entries of COFCO’s merchandise made during those time periods
remained at 0.00 percent, the rate determined in the first administrative review.
B. The Fourth Administrative Review
Commerce conducted the administrative review at issue here, i.e., the fourth
administrative review, for entries of subject merchandise made by COFCO, among others, during
the period February 1, 2002 through January 31, 2003 (“period of review” or “POR”). Prelim.
Results, 69 Fed. Reg. at 10,412. During the fourth administrative review, in response to the
Department’s requests for information, COFCO reported that Yu Xing, its affiliated producer,
supplied all subject merchandise that COFCO exported to the United States during the period of
review, and COFCO provided Yu Xing’s factors-of-production data. See, e.g., Letter from White
& Case to Sec’y of Commerce A16-A17, D1-D15, Exs. D1-D6 (May 30, 2003) (responding to
the Department’s questionnaire) (Admin. R. Doc. No. 41). Petitioner commented that
Commerce should require COFCO to submit a full response to Section A of the Department’s
questionnaire for each of its affiliates, including companies other than Yu Xing, to determine
which companies affiliated with COFCO should submit factors-of-production data. Letter from
Collier Shannon Scott to Sec’y of Commerce 7-10 (July 17, 2003) (commenting on COFCO’s
questionnaire response) (Admin. R. Doc. No. 56). Commerce sent COFCO supplemental
questionnaires.
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In response to three supplemental questionnaires, COFCO provided Commerce with
information on companies that Commerce potentially could find to be affiliated with COFCO
and also provided factors-of-production data for certain of those companies. Letter from White &
Case to Sec’y of Commerce (Sept. 10, 2003) (responding to the first supplemental questionnaire)
(Admin. R. Doc. No. 96); Letter from White & Case to Sec’y of Commerce (Nov. 10, 2003)
(responding to the second supplemental questionnaire) (Admin. R. Doc. No. 127) (“Second
Supplemental Resp.”); Letter from White & Case to Sec’y of Commerce (Dec. 8, 2003)
(responding to the third supplemental questionnaire) (Admin. R. Doc. No. 132). Petitioner urged
Commerce to treat as a single entity COFCO’s affiliated producers and exporters and to calculate
normal value based on a weighted average of the factors-of-production data pertaining to
producers of subject merchandise with which COFCO was affiliated. Letter from Collier
Shannon Scott to Sec’y of Commerce (Sept. 30, 2003) (commenting on COFCO’s first
supplemental response) (Admin. R. Doc. No. 109); see also Letter from Collier Shannon Scott to
Sec’y of Commerce (Feb. 2, 2004) (commenting on COFCO’s fourth supplemental response)
(Admin. R. Doc. No. 157).
Commerce met with counsel for petitioner and COFCO during December 2003 and
January 2004 to determine whether to require additional producers affiliated with COFCO to
report factors-of-production data. See Mem. to the File (Dec. 22, 2003) (Admin. R. Doc.
No. 137); Mem. to the File (Dec. 22, 2003) (Admin. R. Doc. No. 138); Mem. to the File (Jan. 7,
2004) (Admin. R. Doc. No. 145). Commerce subsequently issued a fourth supplemental
questionnaire to COFCO in which Commerce “addressed [COFCO’s] affiliations with other
companies that sold and/or produced preserved mushrooms during the POR and requested
Court No. 04-00503 Page 8
COFCO to provide factors of production data for those companies.” Prelim. Results, 69 Fed.
Reg. at 10,411; see Letter from Sec’y of Commerce to White & Case 1-12 (Jan. 7, 2004)
(Admin. R. Doc. No. 146) (“Fourth Supplemental Questionnaire”). Specifically, Commerce
asked that COFCO provide factors-of-production data for two additional producers, Fujian
Zishan and COFCO (Zhangzhou) Food Industrial Co., Ltd. (“Zhangzhou”). Fourth
Supplemental Questionnaire at 1, 11-12. COFCO responded in January and February 2004,
providing requested information for both Fujian Zishan and Zhangzhou. Prelim. Results, 69 Fed.
Reg. at 10,411; Letter from White & Case to Sec’y of Commerce (Jan. 26, 2004) (Admin. R. Doc.
No. 156) (“Fourth Supplemental Resp. Part I”); Letter from White & Case to Sec’y of Commerce
(Feb. 9, 2004) (Admin. R. Doc. No. 167) (“Fourth Supplemental Resp. Part II”).
Commerce issued a preliminary determination in the fourth administrative review
(“Preliminary Results”) in which Commerce concluded that COFCO was affiliated with three
producers – Yu Xing, Fujian Zishan, and Zhangzhou – and two other exporters – China National
Cereals, Oils, & Foodstuffs Import & Export Corp. (“China National”) and Xiamen Jiahua
Import & Export Trading Co., Ltd. (“Xiamen Jiahua”) – through common ownership and
common control. Prelim. Results, 69 Fed. Reg. at 10,413. Commerce cited COFCO’s
“significant ownership share in Yu Xing” and identified China National as COFCO’s parent
company and the entity through which COFCO is affiliated with producers Fujian Zishan and
Zhangzhou and exporter Xiamen Jiahua. Id. Commerce further concluded that the three
affiliated producers should be treated as a single entity. Id. at 10,413-14. Because Zhangzhou
did not produce processed mushrooms in the same container sizes as those sold by COFCO in the
United States, Commerce did not use Zhangzhou’s factors-of-production data in determining the
Court No. 04-00503 Page 9
normal value of COFCO’s merchandise. However, for identical sizes of canned mushrooms
produced by Yu Xing and Fujian Zishan, Commerce weight-averaged the factors of production
reported by Fujian Zishan with those of Yu Xing. See 4th Admin. Review of the Antidumping
Duty Order on Certain Preserved Mushrooms from the People’s Republic of China: Calculation
Mem. for the Prelim. Results for China Processed Food Import & Export Co. (“COFCO”) at 2-3
(Mar. 1, 2004) (Admin. R. Doc. No. 192) (“COFCO Calculation Mem.”); see also Prelim.
Results, 69 Fed. Reg. at 10,420. Commerce used this approach even though all of the
merchandise exported by COFCO during the period of review was produced by Yu Xing, not
Fujian Zishan. Commerce preliminarily determined a margin of 87.47 percent for COFCO.
Prelim. Results, 69 Fed. Reg. at 10,422.
Upon issuing the Preliminary Results, Commerce sent COFCO another supplemental
questionnaire. See Letter from Sec’y of Commerce to White & Case (Mar. 5, 2004) (setting forth
the fifth supplemental questionnaire) (Admin. R. Doc. No. 193). COFCO responded, providing
additional data concerning its affiliates. Letter from White & Case to Sec’y of Commerce
(Mar. 31, 2004) (responding to the fifth supplemental questionnaire) (Admin. R. Doc. No. 209).
In the Final Results, Commerce affirmed its determination to treat COFCO and the three
producers – Yu Xing, Fujian Zishan, and Zhangzhou – as a single entity and also added two
exporters to that entity – China National and Xiamen Jiahua. Final Results, 69 Fed. Reg.
at 54,639. Commerce determined a margin of 3.92 percent for COFCO. Id. at 54,641. As it had
in the Preliminary Results, Commerce used factors-of-production data of both Yu Xing and
Fujian Zishan in determining the normal value of COFCO’s merchandise. However, Commerce
changed its method for calculating COFCO’s normal value from that used in the Preliminary
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Results. Agreeing with a comment of COFCO, Commerce first calculated the normal value for
each product based on the factors of production at each separate facility and then averaged the
normal values by applying a weighting factor based on the total production quantity of each
product. Issues and Decision Mem. for the Final Results of the Antidumping Duty New Shipper
and Admin. Reviews on Certain Preserved Mushrooms from the People’s Republic of China –
Feb. 1, 2002, through Jan. 31, 2003, Comment 2 (“Decision Mem.”).
On October 8, 2004, COFCO filed a summons and complaint contesting the Final
Results. See Compl. ¶¶ 12-15. Plaintiff moves pursuant to USCIT Rule 56.2 for judgment upon
the agency record. See Pl.’s Rule 56.2 Mot. for J. upon the Agency R. 1-2; COFCO’s Mem. of
P. & A. 1.
II. DISCUSSION
The court has jurisdiction over COFCO’s cause of action pursuant to 28 U.S.C.
§ 1581(c). 28 U.S.C. § 1581(c) (2000); see also Compl. 1. COFCO timely brought suit pursuant
to 19 U.S.C § 1516a(a)(2)(A)(i) to contest the Final Results. 19 U.S.C § 1516a(a)(2)(A) (2000).
COFCO has standing to do so because it is an exporter of the subject merchandise that
participated in the administrative review proceeding before Commerce. Id.; see Compl. 1-2. The
court reviews the Final Results according to 19 U.S.C. § 1516a(b)(1)(B)(i), which requires the
court to “hold unlawful any determination, finding, or conclusion found . . . in an action brought
under [19 U.S.C. § 1516a(a)(2)], to be unsupported by substantial evidence on the record, or
otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B).
Plaintiff’s challenge to the Final Results arose from the Department’s application in the
fourth administrative review, but not in the investigation or in a prior administrative review, of a
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procedure to which Commerce has referred as “collapsing.” Although plaintiff’s complaint set
forth two claims related to the application of the “collapsing” methodology, plaintiff, in its
motion for judgment upon the agency record, limited its arguments to the second claim. See
Compl. ¶¶ 12-15; COFCO’s Mem. of P. & A. 1 & n.1. Below, the court first describes the
Department’s “collapsing” regulation, 19 C.F.R. § 351.401(f), to provide the necessary
background for the discussion of plaintiff’s claims. See 19 C.F.R. § 351.401(f) (2004). The
court then addresses the consequences of plaintiff’s abandonment of its first claim, which claim
had challenged certain factual findings and determinations supporting the application of the
Department’s “collapsing” methodology. Finally, the court addresses plaintiff’s second claim,
which claim is the basis for plaintiff’s motion for judgment upon the agency record.
Under the procedure set forth in the Department’s regulations, Commerce in some
circumstances will “collapse” a producer of subject merchandise and producers affiliated with
that producer, i.e., treat the producer and its affiliated producers as a single entity, in an
antidumping duty investigation or review. See id. § 351.401(f)(1). Specifically, under 19 C.F.R.
§ 351.401(f)(1), “the Secretary will treat two or more affiliated producers as a single entity where
those producers have production facilities for similar or identical products that would not require
substantial retooling of either facility in order to restructure manufacturing priorities and the
Secretary concludes that there is a significant potential for the manipulation of price or
production.” Id. The Department’s regulation on collapsing further provides that:
[i]n identifying a significant potential for the manipulation of price or production,
the factors the Secretary may consider include:
(i) The level of common ownership;
(ii) The extent to which managerial employees or board members of one firm
sit on the board of directors of an affiliated firm; and
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(iii) Whether operations are intertwined, such as through the sharing of sales
information, involvement in production and pricing decisions, the sharing of
facilities or employees, or significant transactions between the affiliated
producers.
Id. § 351.401(f)(2). In the fourth administrative review, Commerce “collapsed” COFCO with
Chinese producers, and also with Chinese exporters, of the subject merchandise. Final Results,
69 Fed. Reg. at 54,639. Commerce determined COFCO to be affiliated with these other
producers and exporters, a determination that COFCO did not contest in the administrative
review and does not challenge before the court. See id. In making the determination that
COFCO and the various producers and other exporters were affiliated for purposes of the
antidumping laws, Commerce applied criteria set forth in 19 U.S.C. § 1677(33) (2000).2 See id.;
Prelim. Results, 69 Fed. Reg. at 10,413-14.
The regulation on collapsing does not expressly limit the use of the collapsing
methodology to antidumping cases involving merchandise from market economy countries. In
fact, Commerce has applied the collapsing regulation to merchandise from nonmarket economy
2
In relevant part, 19 U.S.C. § 1677(33) defines “affiliated persons,” stating that
[t]he following persons shall be considered to be “affiliated” or “affiliated
persons”:
…
(E) Any person directly or indirectly owning, controlling, or holding with
power to vote, 5 percent or more of the outstanding voting stock or shares of any
organization and such organization.
(F) Two or more persons directly or indirectly controlling, controlled by, or
under common control with, any person.
(G) Any person who controls any other person and such other person.
19 U.S.C. § 1677(33)(E)-(G) (2000). The section further provides that “[f]or purposes of this
paragraph, a person shall be considered to control another person if the person is legally or
operationally in a position to exercise restraint or direction over the other person.” Id.
§ 1677(33).
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countries even though the method for determining normal value in a nonmarket economy country
is substantially different from the method applied to merchandise from a market economy
country. See, e.g., Hontex Enters., Inc. v. United States, 27 CIT 272, 288-97, 248 F. Supp. 2d
1323, 1337-44 (2003) (comparing the application of the collapsing methodology in market and
nonmarket economy cases). If the subject merchandise is produced in and exported from a
country that Commerce considers to be a nonmarket economy country, such as China, Commerce
usually calculates the normal value of the subject merchandise according to a factors-of-
production method specified by statute. See 19 U.S.C. § 1677b(c)(1) (2000). Under this method,
the Department identifies and quantifies the factors of production3 utilized in producing the
subject merchandise. Id. § 1677b(c)(1), (3)-(4). The Department then determines values for
these factors based on the best available information pertaining to a market economy country that
is at a level of economic development comparable to that of the nonmarket economy country and
that is a significant producer of either the subject merchandise or comparable merchandise.4 See
id. § 1677b(c)(4). Specifically, the statute provides that where the subject merchandise is
exported from a nonmarket economy country and Commerce finds (as it did in this case) that
available information does not permit normal value to be determined according to the usual
method as provided in 19 U.S.C. § 1677b(a), “the administering authority shall determine the
3
As specified by the statute, the non-exhaustive list of factors of production subject to
valuation includes the hours of labor required to produce the merchandise, the quantities of raw
materials used, the amount of energy and other utilities consumed in the production process, and
any representative capital cost, including depreciation. 19 U.S.C. § 1677b(c)(3) (2000).
4
In the fourth administrative review, Commerce chose India as the “surrogate” market
economy country for purposes of valuing the factors of production. Prelim. Results, 69 Fed. Reg.
at 10,420.
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normal value of the subject merchandise on the basis of the value of the factors of production
utilized in producing the merchandise and to which shall be added an amount for general
expenses and profit plus the cost of containers, coverings, and other expenses.” Id.
§ 1677b(c)(1). Unless Commerce finds that available information is inadequate for doing so (a
finding Commerce did not make in this case), Commerce is to value the factors of production
based on the best available information regarding the values of such factors in the surrogate
country or countries that Commerce chooses (i.e., in this case, India). See id. § 1677b(c)(1)-(2);
Prelim. Results, 69 Fed. Reg. at 10,420.
In the fourth administrative review, Commerce invoked its collapsing authority under
19 C.F.R. § 351.401(f) in determining the normal value of COFCO’s exports of subject
merchandise according to factor-of-production data pertaining to two Chinese mushroom
producers, Yu Xing and Fujian Zishan. See Prelim. Results, 69 Fed. Reg. at 10,413-14, 10,420;
COFCO Calculation Mem. 2-3. Commerce did so even though COFCO reported (and
Commerce found) that all subject merchandise that COFCO exported to the United States market
during the period of review was produced by Yu Xing. See Prelim. Results, 69 Fed. Reg.
at 10,413; Decision Mem. at 11-12. More broadly, Commerce applied its collapsing method in
the Final Results in deciding to treat COFCO and its two affiliated exporters, China National and
Xiamen Jiahua, and producers Yu Xing, Fujian Zishan, and Zhangzhou, as a single entity,
subjecting COFCO and the companies affiliated with COFCO to COFCO’s antidumping duty
rate. Final Results, 69 Fed. Reg. at 54,639, 54,641.
Upon applying the criteria of 19 C.F.R. § 351.401(f), Commerce concluded that “the first
and second collapsing criteria are met here because [Yu Xing, Fujian Zishan, and Zhangzhou] are
Court No. 04-00503 Page 15
affiliated . . . and all have production facilities for producing similar or identical products that
would not require substantial retooling in order to restructure manufacturing priorities . . . .”
Prelim. Results, 69 Fed. Reg. at 10,414 (citing Fourth Supplemental Resp. Part II). Commerce
concluded that “the third collapsing criterion is met in this case because a significant potential for
manipulation of price or production exists among [Yu Xing, Fujian Zishan, and Zhangzhou]” due
to common ownership, common control through a common member of the board of directors and
a general manager shared by two of the companies, and operations found to be “sufficiently
intertwined.” Id. at 10,413-14. On the issue of “sufficiently intertwined” operations, Commerce
found that “COFCO has shifted its source of supply among these affiliates.” Id. at 10,414.
Commerce explained that it used Fujian Zishan’s factors-of-production data during the
investigation to determine COFCO’s dumping margin and “that during the POR Fujian Zishan
supplied preserved mushrooms to Xiamen Jiahua, and Yu Xing supplied preserved mushrooms
to COFCO . . . .” Id. (citing Fourth Supplemental Resp. Part II, Ex. 1 and Second Supplemental
Resp. at 4). In the Final Results, Commerce affirmed its conclusions regarding collapsing of the
affiliated producers and included the two affiliated exporters in the collapsed entity. “We note
that our rationale for collapsing, i.e., to prevent manipulation of price and/or production, applies
to both producers and exporters, if the facts indicate that producers of like merchandise are
affiliated as a result of their mutual relationship with an exporter.” Final Results, 69 Fed. Reg.
at 54,639.
In its complaint, plaintiff alleges as its first claim that “[t]he Department’s findings,
determinations, and conclusion that Yu Xing, Fujian Zishan, and [Zhangzhou] had production
facilities for producing similar or identical products that would not require substantial retooling
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in order to restructure manufacturing priorities, were not supported by substantial evidence
and/or otherwise not in accordance with law.” Compl. ¶ 13. As stated previously, COFCO
expressly declined to pursue this claim in moving for judgment upon the agency record, stating in
its memorandum in support of its motion that it “has dropped one of the issues previously
identified” and that “[t]he Rule 56.2(c) statement therefore supersedes the Statement of Claims
filed earlier.” COFCO’s Mem. of P. & A. 1 n.1. Because plaintiff did not include its first claim
in its motion for judgment upon the agency record, that claim is not before the court.
The Court of International Trade previously has addressed the general issue of whether
Commerce may determine normal value according to 19 U.S.C. § 1677b(c)(1) on the basis of the
value of factors of production that pertained to an affiliated producer that did not actually
produce the subject merchandise exported to the United States but that Commerce collapsed with
the actual producer. See Anshan Iron & Steel Co. v. United States, 27 CIT 1234, 1254 (2003)
(concluding that no language in the statute supports the proposition that Commerce must exclude
from the calculation of normal value the factors of production of non-exporting subsidiaries that
manufactured the subject merchandise during the period of investigation). The Department’s
method of determining the normal value of COFCO’s merchandise in the fourth administrative
review appears to be similar to the method that was at issue in Anshan Iron & Steel Co. See
id. at 1254-55. However, the court will not address the issue of whether the Department’s
method of determining normal value on the record of this case was consistent with 19 U.S.C.
§ 1677b(c) and related provisions because COFCO has not raised this issue in moving for
judgment upon the agency record. COFCO’s memorandum in support of its motion makes plain
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that COFCO is not challenging on the merits the method by which Commerce calculated the
normal value of its merchandise. See COFCO’s Mem. of P. & A. 1 & n.1.
Under USCIT Rule 56.2(c), a party moving for judgment upon the agency record must
state in its brief the issues of law presented together with the reasons for contesting or supporting
the administrative determination. USCIT R. 56.2(c). Nowhere in plaintiff’s memorandum in
support of its motion for judgment upon the agency record does the court find any argument by
plaintiff that the Department’s method of determining normal value in the fourth administrative
review was impermissible according to 19 U.S.C. § 1677b(c) and related provisions of the
antidumping laws. In abandoning the first claim set forth in its complaint, COFCO signifies that
it is no longer challenging the Department’s finding, pursuant to 19 C.F.R. § 351.401(f), that
Yu Xing and Fujian Zishan had production facilities for producing similar or identical products
that would not require substantial retooling in order to restructure manufacturing priorities, a
finding that was a basis for the Department’s decision to determine normal value based on
factors-of-production data of both Yu Xing and Fujian Zishan.
COFCO confined its Rule 56.2 motion to the second claim in its complaint, which is that
“[t]he Department’s decision to implement a new normal value calculation methodology that
created dumping margins for merchandise that already had entered the United States when
Plaintiff China Processed had relied on the Department’s previous methodology in order to avoid
just such an outcome is unreasonable, inequitable, an abuse of discretion, and not in accordance
with law.” Compl. ¶ 15. COFCO pursues this claim in seeking relief under Rule 56.2, arguing
that Commerce, in applying retroactively a new methodology for calculating normal value,
unfairly penalized COFCO, which had detrimentally relied on the old methodology to avoid
Court No. 04-00503 Page 18
selling subject merchandise in the United States at less than fair value. COFCO’s Mem. of P. &
A. 10. Relying on Shikoku Chemicals Corp. v. United States, 16 CIT 382, 795 F. Supp. 417
(1992), and IPSCO, Inc. v. United States, 12 CIT 359, 687 F. Supp. 614 (1988), COFCO argues
that it was unfair of Commerce to change its methodology for calculating normal value when the
facts had not changed and when COFCO had relied on the old methodology, i.e., a methodology
that did not employ collapsing, in exporting subject merchandise to the United States. COFCO’s
Mem. of P. & A. 10-11, 15.
As relief, COFCO seeks a court order remanding the Final Results to Commerce “with
instructions (1) to calculate the normal value of COFCO’s sales of subject merchandise during
the fourth administrative review period using only the factor data of Yu Xing, and (2) to
implement only prospectively its new methodology.” Id. at 15. By seeking relief under which
the court would direct Commerce to implement the collapsing methodology “only
prospectively,” COFCO suggests that it views as lawful the method by which Commerce
determined normal value, i.e., by using factors-of-production data of both Yu Xing and Fujian
Zishan even though only Yu Xing produced the subject merchandise that COFCO exported to the
United States market during the period of review. See id.; see also Reply Br. in Further Supp. of
COFCO’s Mot. for J. upon the Agency R. 1 (“reiterating at the outset that COFCO is not
challenging Commerce’s affiliation determination in the underlying proceeding. Nor is COFCO
challenging Commerce’s authority to collapse COFCO and its affiliated producers in future
administrative reviews for purposes of calculating the appropriate antidumping duty margin.”)
(“COFCO’s Reply”). COFCO objects only to what it characterizes as a retroactive application of
a new methodology that, if applied prospectively, would have been acceptable. COFCO’s Mem.
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of P. & A. 15. According to plaintiff, “in the face of years of acceptance of [the Department’s]
prior approach, Commerce may not implement a new methodological change retroactively.” Id.
at 14. When applied in the fourth administrative review, the collapsing procedure was, according
to COFCO, unfair because COFCO, desiring to avoid selling merchandise in the United States at
less than fair value, had relied on the Department’s previous methodology, which did not use the
collapsing procedure. Id. at 11-15. Rather than raise a substantive objection to the new
methodology, COFCO’s remaining claim takes issue only with the Department’s decision to
discontinue using the old, non-collapsing methodology.
COFCO’s characterization of the change in the Department’s method as “retroactive”
does not, by itself, convince the court that Commerce abused its discretion or otherwise acted
contrary to law in deciding to discontinue using its previous method. Antidumping duties are
administered according to a retrospective, remedial duty assessment system. The Court of
International Trade has observed previously that “[t]he absence of certainty regarding the
dumping margins and final assessment of antidumping duties is a characteristic of the
retrospective system of administrative reviews designed by Congress.” Abitibi-Consol. Inc. v.
United States, 30 CIT __, __, 437 F. Supp. 2d 1352, 1361 (2006). Retroactivity is inherent in
this system in that the Department’s determinations made during the administrative review
necessarily apply to merchandise previously exported from the producing country and entered
into the United States. Even if COFCO relied to its detriment on the continuation of the method
applied in the investigation and the first administrative review (as it claims), that reliance is not,
by itself, sufficient to entitle COFCO to relief that would reverse the Department’s decision in
the fourth administrative review to depart from that method, under the retrospective statutory
Court No. 04-00503 Page 20
scheme. Commerce invoked its collapsing procedure in the fourth administrative review after
making certain findings of fact that it did not make on the record of the investigation or the
record of the first administrative review and did not have occasion to make in the second and
third administrative reviews, which did not include a review of COFCO’s sales. Commerce
proceeded with its collapsing analysis, invoking a procedure that it had established previously by
regulation, on the basis of those findings of fact and on the basis of conclusions of law, which
findings and conclusions COFCO has declined to challenge in moving for judgment upon the
agency record.
The court disagrees with plaintiff’s argument that the court, based on guidance drawn
from the holding of the Court of International Trade in Shikoku, should conclude that Commerce
abused its discretion and acted unreasonably by deciding to depart from a methodology that it
had employed previously and on which COFCO had relied. See COFCO’s Mem. of
P. & A. 13-15; Shikoku, 16 CIT 382, 795 F. Supp. 417. The court concludes that the facts and
circumstances of Shikoku differ in material respects from those giving rise to this case.
In Shikoku, Commerce established a dumping margin of 9.66 percent for the plaintiffs’
sales of dichloro isocyanurates (“DCA”) in the first administrative review of an antidumping
duty order on cyanuric acid and its chlorinated derivatives, DCA and trichloro isocyanuric acid,
from Japan. 16 CIT at 383, 795 F. Supp. at 418. For plaintiffs’ sales of DCA, Commerce
determined a de minimis5 margin in the second administrative review and assigned margins of
zero for the third and fourth administrative reviews. Id. As discussed in Shikoku, the
5
In administrative reviews conducted under 19 U.S.C. § 1675(a), “the Secretary will treat
as de minimis any weighted-average dumping margin or countervailable subsidy rate that is less
than 0.5 percent ad valorem, or the equivalent specific rate.” 19 C.F.R. § 351.106(c)(1) (2004).
Court No. 04-00503 Page 21
Department’s regulations, 19 C.F.R. § 353.25(b)(1) (1991), allowed Commerce to revoke the
“antidumping duty order if the subject merchandise ha[d] not been sold at less than foreign
market value for three years subsequent to the publication of the order.” Id. at 384 n.4, 795 F.
Supp. at 418 n.4. In the fifth and sixth administrative reviews, however, Commerce changed the
methodology that it had used in the investigation and in the first four administrative reviews in
calculating a deduction from home market value for certain expenses that plaintiff Shikoku
incurred when repackaging DCA from a granular form suitable for export to a form suitable for
home market sale. Id. at 383-84, 795 F. Supp. at 418. Commerce determined antidumping duty
margins of 0.81 and 0.91 percent for plaintiffs’ sales of DCA in the fifth and sixth administrative
reviews, respectively, and refused plaintiffs’ request to revoke the antidumping duty order as to
DCA. Id. By changing its methodology, Commerce attempted to eliminate from the calculation
of the repackaging deduction certain labor expenses that were directly attributable to making
tablets and to tablet repackaging, recognizing that plaintiffs exported chlorinated derivative
products to the United States only in granular, not tablet, form. Id. at 384-86, 795 F. Supp.
at 418-20. The plaintiffs in Shikoku argued that the new methodology was rife with
inconsistencies and errors and did not result in a more accurate calculation of the repackaging
deduction than the previous method. Id. They argued, further, that they had been unfairly
penalized because Commerce applied the new methodology retroactively in spite of their reliance
on the old methodology. Id. at 386-88, 795 F. Supp. at 420-22.
The Court of International Trade in Shikoku explained that the government had not
clearly demonstrated that the new methodology was an improvement over the old but that “it
appears that expenses of making tablets were significant so it is likely that there was a marginal
Court No. 04-00503 Page 22
increase in accuracy.” Id. at 386, 795 F. Supp. at 420. The Court also found that plaintiffs had
demonstrated their reliance on the old methodology by adjusting their pricing accordingly. Id.
The Court reasoned that “[i]t [wa]s simply too late to mandate another three years of
administrative reviews because of a last minute ‘improvement’ in Commerce’s methodology”
and that “[p]laintiffs’ reliance, the unchanged fact pattern, and the lack of discovery of significant
error lead the court to conclude that Commerce did not have adequate reasons for its last minute
change in methodology.” Id. at 388, 795 F. Supp. at 422. The Court concluded that “Commerce
abused its discretion and acted unreasonably in changing its . . . methodology . . . in the latest
reviews, thereby preventing [Shikoku] from qualifying for consideration for revocation.” Id.
at 388-89, 795 F. Supp. at 422.
COFCO, unlike the plaintiffs in Shikoku, declined to challenge on the merits a new
methodology employed by the Department. This is significant because the reasoning in Shikoku
depended in part on the Court’s conclusions, reached based on plaintiffs’ having challenged the
new methodology on the merits, that the government had not clearly demonstrated that the new
methodology was an improvement and that the new methodology yielded what appeared to be
only a marginal increase in accuracy over the old methodology, concerning which no significant
error had been discovered. In this case, the court declines to reach a conclusion on the issue of
the relative merits of the old and new methodologies because plaintiff decided not to make this
issue the basis of its motion for judgment upon the agency record.
Moreover, COFCO did not have a basis for reliance equivalent to that found to exist in
Shikoku, in which the previous methodology had been used, without change, in the investigation
and in each of the first four administrative reviews. In Shikoku, after assigning plaintiffs zero
Court No. 04-00503 Page 23
margins in the third and fourth administrative reviews, Commerce assigned plaintiffs margins
above the de minimis level in the fifth and sixth administrative reviews after making the change
in methodology. In contrast, prior to the fourth administrative review at issue in this case,
Commerce calculated margins for COFCO only in the investigation and in the first
administrative review. As discussed previously, Commerce rescinded the second and third
administrative reviews as to COFCO upon the withdrawal of petitioner’s requests. COFCO
could have, but did not, request review of its sales in the second and third administrative reviews.
In Shikoku, Commerce employed a last-minute change after an investigation and four
administrative reviews, which change likely (although not definitely) produced a marginal
increase in accuracy and had the result of precluding the opportunity for revocation of the
antidumping duty order. A similar basis for reliance does not exist in this case.
COFCO also cites IPSCO in support of its argument that retroactive application of the
Department’s new methodology was not fair in this case, where the facts had not changed and
where COFCO had relied on the old methodology. See 12 CIT at 378 n.27, 687 F. Supp.
at 631 n.27. The plaintiffs in IPSCO claimed that the Department’s use of certain new
methodologies in a countervailing duty investigation unfairly altered plaintiffs’ countervailing
duty liabilities retroactively. Id. The new methodologies at issue postdated the grants that
resulted in the countervailing duty investigation and were set forth in an appendix (“Subsidies
Appendix”) that was not the subject of notice-and-comment rule making. Id. at 378 & n.27, 687
F. Supp. at 630-31, 631 n.27. The IPSCO plaintiffs claimed prejudicial reliance on the old
methodologies, under which, they alleged, they would not have incurred countervailing duty
liability. Id. at 378 n.27, 687 F. Supp. at 631 n.27. They argued that retroactive application of
Court No. 04-00503 Page 24
the new methodologies, given their reliance, was impermissible unless such application produced
benefits outweighing the resulting prejudice. Id.
The holding in IPSCO does not convince the court that COFCO is entitled to relief on the
record of this case. The Court of International Trade held in IPSCO that one aspect of the new
methodologies established by the Subsidies Appendix, the use of a fifteen-year period for the
allocation of benefits from grants, was a legislative rule that was not adopted following the
notice-and-comment procedures that were required by the Administrative Procedure Act
(“APA”), but that other aspects of the Subsidies Appendix were exempt from the APA notice-
and-comment requirements because they were interpretive rules. Id. at 373-78, 687 F. Supp.
at 626-31. The Court rejected the plaintiffs’ retroactivity argument in a footnote, concluding that
the plaintiffs failed to demonstrate actual prejudicial reliance on the old methodologies that were
in use prior to the Department’s issuance of the Subsidies Appendix. Id. at 378 n.27, 687 F.
Supp. at 631 n.27. The Court of International Trade in IPSCO did not further consider the
plaintiffs’ retroactivity claim and thus did not, in formulating its holdings in the case, decide the
question of whether the change in methodology would have been impermissible on retroactivity
grounds had prejudicial reliance been demonstrated.
In support of its motion for judgment upon the agency record, plaintiff also cites Fujian
Machinery and Equipment Import & Export Corp. v. United States, 25 CIT 1150, 1169-70, 178
F. Supp. 2d 1305, 1327 (2001), and Slater Steels Corporation v. United States, 28 CIT 340, 345,
316 F. Supp. 2d 1368, 1374 (2004), for the principle that an agency discarding one methodology
in favor of another must state clearly the grounds for its departure from prior norms. COFCO’s
Mem. of P. & A. 11. However, plaintiff, in its memorandum in support of its Rule 56.2 motion,
Court No. 04-00503 Page 25
does not set forth an argument that Commerce, in the Final Results, failed to state its reasons for
applying in the fourth administrative review a collapsing analysis that it did not apply previously
to COFCO and its affiliates. Only in its reply brief, when attempting to refute defendant’s
argument that Shikoku is inapposite to this case, did plaintiff argue that Commerce failed to
explain “its implied conclusion that the methodological change in the underlying proceeding was
either necessary or better” and that Commerce, in citing a potential for manipulation of price or
production, “has cited no specific facts or record evidence that actual manipulation of price or
production occurred.” COFCO’s Reply 3-4 (entitling the section in its reply brief containing the
above-quoted statement as “The Court’s Holding in Shikoku Chem. Corp. v. United States is
Applicable to the Present Case”). The court does not construe the quoted language as an attempt,
impermissible or otherwise, to raise in a reply brief a new substantive argument. In the same
reply brief, plaintiff stated explicitly that it was declining to raise the substantive argument
discussed previously, “reiterating at the outset that COFCO is not challenging Commerce’s
affiliation determination in the underlying proceeding. Nor is COFCO challenging Commerce’s
authority to collapse COFCO and its affiliated producers in future administrative reviews for
purposes of calculating the appropriate antidumping duty margin.” Id. at 1. Moreover, as also
discussed previously, plaintiff abandoned its claim in the complaint challenging the
Department’s finding that Yu Xing, Fujian Zishan, and Zhangzhou had production facilities for
producing similar or identical products that would not require substantial retooling in order to
restructure manufacturing priorities. See COFCO’s Mem. of P. & A. 1 & n.1.
Later, in a supplemental brief responding to a question of the court concerning the issue
of notice for a change in methodology, plaintiff characterized as “hollow” the Department’s
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explanation that collapsing was applied in the fourth administrative review to prevent
manipulation of price or production, when “the collapsing regulation and the case-specific facts
relevant to a finding of affiliation among COFCO’s related producers had not changed since the
underlying investigation[.]” China Processed Food Import and Export Company’s Resp. to the
Ct.’s May 11, 2006 Questions 7 (“COFCO’s Resp. to the Ct.’s Questions”). Here again, plaintiff
confined its terse argument to the issues of its reliance on the old methodology and the timing of
the change rather than to the question of whether the new methodology, regardless of when
implemented, was in accordance with the statute. “Without any explicit recognition or warning
that the standard for collapsing had been changed, or any attempt to distinguish or reject
apparently inconsistent precedent, Commerce applied its collapsing regulation to COFCO’s
affiliated producers in the underlying proceeding when it had never done so before.” Id.
In its brief responding to the court’s questions, plaintiff also cited United States v.
Midwest Oil Company, 236 U.S. 459 (1915), for the principles that parties are justified in relying
on the law in conducting their business and that repeated actions of the government can define
the meaning and applicability of a particular statute or power. COFCO’s Resp. to the Ct.’s
Questions 4, 10. The Supreme Court in Midwest Oil Company affirmed the power of the
President, acting without express statutory authority, to withdraw public land that otherwise
would have been open to private acquisition, based on a long-standing practice under which
numerous executive orders had effected similar withdrawals. 236 U.S. at 469-74, 483. The
analysis of the practice addressed in Midwest Oil Company – one that “date[d] from an early
period in the history of the government,” occurred over “eighty years,” and involved hundreds of
orders – does not support, even remotely, a conclusion that COFCO, in the particular context of
Court No. 04-00503 Page 27
this case, may obtain relief on an expectation that Commerce would not make a change in the
methodology it employed in the investigation and the first administrative review. 236 U.S.
at 469 (internal quotation marks and citations omitted).
In the same brief, plaintiff argues that the Department’s departure from its earlier
methodology was unfair, contrary to the principle, addressed in Melamine Chemicals, Inc. v.
United States, 732 F.2d 924, 933 (Fed. Cir. 1984), and cited in Budd Company v. United States,
14 CIT 595, 602, 746 F. Supp. 1093, 1099 (1990), that Commerce has a duty to enforce the
antidumping laws fairly. COFCO’s Resp. to the Ct.’s Questions 13-14. In the portion of the
opinion in Melamine Chemicals to which plaintiff directs the court’s attention, the Court of
Appeals for the Federal Circuit held that Commerce acted within its statutory authority in
promulgating and applying a regulation under which Commerce disregarded antidumping
margins caused solely by volatile and temporary exchange rate fluctuations and allowed a 90-day
lag period for currency conversion that afforded an exporter a reasonable time period to adjust its
prices to such fluctuations. 732 F.2d at 930-34. The holding in Melamine Chemicals, which
turned on the breadth of Commerce’s discretion in implementing the antidumping duty laws
rather than limitations on Commerce’s authority to make changes in its methodologies, rested on
factual circumstances and issues of law dissimilar to those of this case. Melamine Chemicals
does not support a conclusion that principles of fairness required Commerce to continue to use its
earlier methodology during the fourth administrative review.
Nor is Budd Company instructive on the resolution of the question presented by
COFCO’s sole claim in this case. See 14 CIT 595, 746 F. Supp. 1093. In Budd Company, the
Court of International Trade considered a circumstance-of-sale adjustment that Commerce made
Court No. 04-00503 Page 28
in an amended less-than-fair-value determination to account for extreme exchange rate
fluctuations. See id. at 600-07, 746 F. Supp. at 1097-1103. Stating the principle that “fairness is
the touchstone of Commerce’s duty in enforcing the antidumping laws[,]” the Court explained
that “courts will not sanction Commerce’s use of circumstance of sale adjustments if to do so
would bring about results which appear to be entirely absurd and unfair.” See id. at 602, 746 F.
Supp. at 1099 (internal quotation marks and citations omitted). The Court nonetheless held that
the Department’s use of the circumstance-of-sale adjustment in the determination was reasonable
and not a violation of the APA’s required procedures for notice and public comment. See id.
at 600-07, 746 F. Supp. at 1097-1103. Although stating the general principle of fairness in the
administration of the antidumping laws that plaintiff has cited, Budd Company does not lend
support to plaintiff’s specific argument in this case.
III. CONCLUSION
For the reasons discussed above, the court rejects plaintiff’s claim that Commerce acted
unfairly and abused its discretion in deciding to depart from a method of determining normal
value on which plaintiff asserts that it relied. The court therefore will deny plaintiff’s motion for
judgment upon the agency record. Under the authority of USCIT R. 56.2(b), the court will enter
judgment dismissing this action. See USCIT R. 56.2(b) (allowing the court, in ruling on a
motion for judgment upon the agency record, to enter judgment in favor of an opposing party).
/s/ Timothy C. Stanceu
Timothy C. Stanceu
Judge
Dated: January 31, 2008
New York, New York