Shijiazhuang Goodman Trading Co. v. United States

Slip Op. 17-63

UNITED STATES COURT OF INTERNATIONAL TRADE

SHIJIAZHUANG GOODMAN
TRADING CO., LTD.,

Plaintiff,

v.

UNITED STATES, Before: Timothy C. Stanceu, Chief Judge

Defendant, Court No. 14-00101

and

FRESH GARLIC PRODUCERS
ASSOCIATION, ET AL.,

Defendant-intervenors.

OPINION

[Sustaining a determination issued in response to court order in an antidumping duty new shipper
review]

Dated:May 26, 2017

Robert T. Hume, Hume & Associates, LLC, of Taos, NM, for plaintiff Shijiazhuang
Goodman Trading Co., Ltd.

Richard P. Schroeder, Trial Attorney, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, of Washington, D.C., for defendant United States. With him on the
brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Jeanne E.
Davidson, Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel was Khalil N.
Gharbieh, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department
of Commerce.

Michael J. Coursey, Kelley Drye & Warren LLP, of Washington D.C., for
defendant-intervenors Fresh Garlic Producers Association, Vessey and Company, Inc., The
Garlic Company, Christopher Ranch, L.L.C., and Valley Garlic. With him on the brief were
John M. Herrmann II and Joshua R. Morey.
Court No. 14-00101 Page 2

Stanceu, Chief Judge: In this action, plaintiff contested a decision by the International

Trade Administration, U.S. Department of Commerce (“Commerce” or the “Department”), to

rescind an administrative “new shipper” review (“NSR”) of an antidumping duty order on fresh

garlic from the People’s Republic of China (“China” or the “PRC”). Fresh Garlic from the

People’s Republic of China: Final Rescission of Antidumping Duty New Shipper Review of

Shijiazhuang Goodman Trading Co., Ltd., 79 Fed. Reg. 22,098 (Int’l Trade Admin.

Apr. 21, 2014) (“Rescission”).

Plaintiff, Shijiazhuang Goodman Trading Co., Ltd. (“Goodman”), a Chinese garlic

exporter, requested the new shipper review according to section 751(a)(2)(B) of the Tariff Act

of 1930 (“Tariff Act”), 19 U.S.C. § 1675(a)(2)(B), so that it could obtain an

individually-determined antidumping duty margin on its garlic exports to the United States. 1 In

a previous opinion, Shijiazhuang Goodman Trading Co. v. United States, 40 CIT __, 172 F.

Supp. 3d 1363 (2016) (“Goodman I”), the court ruled on various grounds that the Department’s

decision to rescind the review was contrary to law.

Before the court is the determination Commerce issued in response to the court’s order in

Goodman I (“Remand Redetermination”). Under protest, Commerce has reversed its decision to

rescind the new shipper review. Commerce has completed the review and assigned Goodman a

dumping margin of $0.08 per kilogram. The court sustains the Department’s new determination.

I. BACKGROUND

Background on this case is presented in Goodman I, 40 CIT at __, 172 F. Supp. 3d

at 1366-68, and is summarized briefly and supplemented herein.

1
Statutory citations herein are to the 2012 edition of the United States Code, and citations
to regulations are to the 2014 edition of the Code of Federal Regulations.
Court No. 14-00101 Page 3

A. Administrative Proceedings

In early 2013, Commerce initiated the new shipper review at Goodman’s request. Fresh

Garlic from the People’s Republic of China: Initiation of Antidumping Duty New Shipper

Review; 2011-2012, 78 Fed. Reg. 88 (Int’l Trade Admin. Jan. 2, 2013) (“Initiation”). The

review covered the period of November 1, 2011 through October 31, 2012. Id at 89.

In the preliminary results of the new shipper review (“Preliminary Results”), Commerce

concluded that Goodman met the requirements for a new shipper review and was entitled to an

individually-determined antidumping duty margin based on demonstrated independence from the

government of the PRC. Fresh Garlic From the People’s Republic of China: Preliminary

Results of New Shipper Review of Shijiazhuang Goodman Trading Co., Ltd., 78 Fed. Reg. 67,112

(Int’l Trade Admin. Nov. 8, 2013). Departing from its normal practice of expressing

weighted-average dumping margins in ad valorem terms, Commerce preliminarily determined a

per-unit dumping margin for Goodman, which was $0.44 per kilogram. Id. at 67,112. Reversing

its position, Commerce issued its rescission of the new shipper review (“Rescission”) on

April 21, 2014. Rescission, 79 Fed. Reg. at 22,098. The result was that Goodman’s merchandise

was subjected to a cash deposit requirement at the rate Commerce applied to exporters that had

not demonstrated independence from the PRC government, which was $4.71 per kilogram. Id.

at 22,099.

The period of review (“POR”) for the requested new shipper review, November 1, 2011

through October 31, 2012, corresponded to the period of review for the eighteenth periodic

administrative review of the Order, the final results of which Commerce issued on June 30, 2014,

70 days after the Rescission contested in this case. Fresh Garlic from the People’s Republic of

China: Final Results and Partial Rescission of the 18th Antidumping Duty Administrative
Court No. 14-00101 Page 4

Review; 2011-2012, 79 Fed. Reg. 36,721 (Int’l Trade Admin. June 30, 2014) (“Final Results”).

After stating in the memorandum accompanying the Rescission that “we are considering

Goodman’s entitlement to a separate rate in that review,” Commerce, in the final results of the

eighteenth administrative review, rescinded the eighteenth administrative review as to Goodman

on the same ground on which it ruled in the Rescission. Decision Mem. for the Final Results in

the Antidumping Duty New Shipper Review of Fresh Garlic from the People’s Republic of

China: Shijiazhuang Goodman Trading Co., Ltd., A-570-831, APR 11-12, at 9 (Int’l Trade

Admin. Apr. 3, 2014) (Admin.R.Doc. No. 190), available at

http://enforcement.trade.gov/frn/summary/prc/2014-09015-1.pdf (last visited May 22, 2017)

(“Rescission Decision Mem.”); Final Results, 79 Fed. Reg. at 36,723.

In the eighteenth review, Commerce retained the PRC-wide rate of $4.71 per kilogram,

the rate it continued to apply to Goodman, and determined a rate of $1.82 per kilogram for the

respondents in that review that were not individually examined but qualified for a rate separate

from the PRC-wide rate. Final Results, 79 Fed. Reg. at 36,723. Before this Court, numerous

parties, including Goodman, contested the final results of the eighteenth review; that litigation is

ongoing. See, e.g., Fresh Garlic Producers Ass’n v. United States, 39 CIT __,

121 F. Supp. 3d 1313 (2015).

B. Proceedings before the Court

Goodman brought this action to contest the Rescission on April 21, 2014. Summons,

ECF No. 1; Compl., ECF No. 6. The Fresh Garlic Producers Association and its individual

members, U.S. garlic producers Christopher Ranch, L.L.C., The Garlic Company, Valley Garlic,

and Vessey and Company, Inc. (together, the “defendant-intervenors”), intervened on behalf of

defendant. Consent Mot. for Leave to Intervene as of Right (May 21, 2014), ECF No. 8
Court No. 14-00101 Page 5

(“Consent Mot. to Intervene”); Order (May 21, 2014), ECF No. 12. Defendant-intervenors are

domestic garlic producers that participated in the new shipper review. See Consent Mot. to

Intervene 2.

On August 22, 2014, Goodman moved for judgment on the agency record. Mot. of Pl.

Shijiazhuang Goodman Trading Co., Ltd. for J. on the Agency R. and Mem. in Supp.

(Aug. 22, 2014), ECF Nos. 21-22 (“Goodman’s Br.”). Defendant and defendant-intervenors

opposed Goodman’s motion. Def.’s Mem. in Opp. to Pl.’s Rule 56.2 Mot. for J. upon the

Agency R. (Nov. 6, 2014), ECF Nos. 30-31 (“Def.’s Br.”); Def.-Intervenors’ Response in Opp.

to Pl.’s Mot. for J. on the Agency R. (Nov. 6, 2014), ECF Nos. 32-33 (“Def.-Int.’s Br.”).

Goodman filed its reply on December 10, 2014. Pl.’s Reply to the Responses of Def. and

Def.-Intervenors to Pl.’s Rule 56.2 Mot. for J. upon the Agency R. (Dec. 10, 2014), ECF

Nos. 36-37 (“Goodman’s Reply Br.”).

The court held oral argument on May 21, 2015, ECF No. 43, and issued its previous

opinion and order on March 22, 2016. In response, Commerce issued the Remand

Redetermination on August 22, 2016. Final Results of Redeterm. Pursuant to Remand

(Aug. 22, 2016), ECF Nos. 60-61 (“Remand Redeterm.”). Commerce announced, under

“respectful protest, that Goodman’s sales are bona fide and that the company is eligible for a

NSR resulting in an individually-determined antidumping duty rate of $0.08/kg, modified and

recalculated from the Preliminary Results.” Id. at 1 (footnote omitted).

Goodman submitted comments on the Remand Redetermination on September 19, 2016.

Comments on Commerce Dept.’s Final Results of Redeterm. Pursuant to Remand

(Sept. 19, 2016), ECF No. 64 (“Goodman’s Comments”). On September 21, 2016,

defendant-intervenors also submitted comments on the Remand Redetermination.
Court No. 14-00101 Page 6

Def.-Intervenors’ Comments on Dept.’s Redeterm. Pursuant to Court Order (Sept. 21, 2016),

ECF Nos. 65-66 (“Def.-Intervenors’ Comments”). Defendant filed a response to the comments

on October 21, 2016. Def.’s Resp. to Comments Regarding Remand Results (Oct. 21, 2016),

ECF No. 68 (“Def.’s Resp.”). Goodman supports the Remand Redetermination; the defendant-

intervenors oppose it. See Goodman’s Comments 1; Def.-Intervenors’ Comments 3.

II. DISCUSSION

A. Jurisdiction and Standard of Review

The court exercises jurisdiction according to section 201 of the Customs Courts Act of

1980, 28 U.S.C. § 1581(c), under which the court reviews actions contesting the final results of

an administrative review of an antidumping duty order brought under section 516A of the Tariff

Act of 1930, 19 U.S.C. § 1516a(a)(2)(B)(iii). 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 is

“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

Consol. Edison Co. of New York v. Nat’l Labor Relations Bd., 305 U.S. 197, 229 (1938).

B. The Department’s Rescission of the New Shipper Review

In rescinding the new shipper review, Commerce concluded that the sales upon which

Goodman sought an individually determined margin were not bona fide sales, finding the

average unit values (“AUVs”) and quantities in those sales, as determined by Commerce from

Customs data on imports of garlic from the PRC during the POR, to be “atypical and, thus,

commercially unreasonable.” Goodman I, 40 CIT at __, 172 F. Supp. 3d at 1371 (quoting

Rescission Decision Mem. 4). Commerce had stated in the memorandum accompanying the

Preliminary Results that in determining whether a sale is bona fide it “considers, inter alia, such
Court No. 14-00101 Page 7

factors as: (1) the timing of the sale; (2) the price and quantity; (3) the expenses arising from the

transaction; (4) whether the goods were resold at a profit; and (5) whether the transaction was

made on an arm’s-length basis.” Decision Mem. for the Preliminary Results of Antidumping

Duty New Shipper Review of Fresh Garlic from the People’s Republic of China: Shijiazhuang

Goodman Trading Co., Ltd., A-570-831, ARP 11-12, at 3 (Int’l Trade Admin. Nov. 4, 2013)

(Admin.R.Doc. No. 141), available at http://enforcement.trade.gov/frn/summary/prc/2013-

26861-1.pdf (last visited May 22, 2017) (“Prelim. New Shipper Decision Mem.”) (footnote

omitted); see also Bona Fide Nature of the Sales in the Antidumping Duty New Shipper Review

of Fresh Garlic from the People’s Republic of China (PRC): Shijiazhuang Goodman Trading

Co., Ltd., A-570-831, ARP 11-12, at 2 (Int’l Trade Admin. Nov. 4, 2013), ECF No. 24-2 (“Bona

Fide Analysis Mem.”). For the Preliminary Results, Commerce had concluded that each of its

five factors supported a finding that the sales were bona fide. Goodman I, 40 CIT at __,

172 F. Supp. 3d at 1371. In rescinding Goodman’s new shipper review, Commerce adhered to

its preliminary results with respect to each of its five factors except the “price and quantity”

factor, deciding that the four remaining factors did not indicate that Goodman’s sales were not

bona fide. New Shipper Review of the Antidumping Duty Order on Fresh Garlic from the

People’s Republic of China: Final Analysis of Shijiazhuang Goodman Trading Co., Ltd.,

A-570-831, ARP 11-12, at 9 (Int’l Trade Admin. Apr. 3, 2014), ECF No. 24-8 (“Final Analysis

Mem.”). As to the one factor upon which it made its decision, Commerce found Goodman’s

entry prices to be “exceptionally high in comparison to other entries of garlic during the POR”

and that its entry quantities were lower than those in most other entries during the POR.

Goodman I, 40 CIT at __, 172 F. Supp. 3d at 1372 (quoting Rescission Decision Mem. 4). In

support of its decision to rescind the new shipper review, Commerce also inferred that a person
Court No. 14-00101 Page 8

employed by Goodman during the POR, identified as “Ms. Gao,” who previously was employed

by another garlic exporter in the PRC, conducted activities on behalf of Goodman related to

those sales that were not solely, if at all, in Goodman’s interests. Id. at 1372-73 (citing Final

Analysis Mem.). Commerce concluded that “[d]ue to the totality of circumstances, including

price, quantity, and concerns regarding the relationship with another garlic exporter located in

the PRC, as detailed in the Goodman Final Analysis Memorandum, the Department finds that

Goodman’s sales are not bona fide.” Rescission, 79 Fed Reg. at 22,098 (footnote omitted).

C. The Court’s Opinion and Order in Goodman I

In Goodman I, the court held that “Commerce has not based its ultimate decision to

rescind the new shipper review on a consideration of the record evidence as a whole.”

Goodman I, 40 CIT at __, 172 F. Supp. 3d at 1379. The court noted that the Department’s

regulations provide that “‘[t]he Secretary may rescind a new shipper review’ if Commerce

concludes that . . . ‘there has not been an entry and sale to an unaffiliated customer in the United

States of subject merchandise.” Goodman I, 40 CIT at __, 172 F. Supp. 3d at 1370 (citing

19 C.F.R. § 351.214(f)(2)(i)). The court noted further that “[i]n applying § 351.214(f)(2)(i) in

this and other new shipper review proceedings, Commerce has considered whether a reported

sale is ‘commercially reasonable, and therefore bona fide.’” Id. (citing Prelim. New Shipper

Decision Mem.).

Goodman I concluded that “the analysis by which Commerce found that Goodman’s

prices were aberrational and not commercially reasonable failed to consider all relevant and

probative record evidence” and that “[s]ubstantial evidence is not available on this record to

support a finding that the quantities of Goodman’s sales were, in the Department’s words,

‘aberrational’ and not ‘commercially reasonable.’” Goodman I, 40 CIT at __, 172 F. Supp. 3d
Court No. 14-00101 Page 9

at 1377. Additionally, the court decided that the Department’s inference that “Ms. Gao’s

activities on behalf of Goodman in making the relevant shipments to the United States . . . were

not conducted solely, if at all, in ‘Goodman’s interests,” an inference upon which Commerce

relied “in concluding that Goodman’s sales were not ‘commercially reasonable,’” was not based

upon “record evidence or a finding based on record evidence.” Goodman I, 40 CIT at __,

172 F. Supp. 3d at 1377-78. The court instructed Commerce to reconsider its rescission of the

new shipper review and base its redetermination on the record as a whole. Goodman I,

40 CIT at __, 172 F. Supp. 3d at 1379.

D. The Department’s Redetermination on Remand

In the Remand Redetermination, “the Department finds that Goodman’s sales are bona

fide.” Remand Redeterm. 8. Commerce, “upon re-evaluation of the record evidence,” found that

“Goodman’s prices do not appear to be illegitimate” and agreed with the court “that the low

quantities are not in and of themselves ‘aberrational.’” Id. at 3-6. Additionally, regarding the

involvement of Ms. Gao, Commerce found that record evidence was “not adequate to support a

non bona fide finding in light of the lack of evidence of an aberrational price or quantity.”

Id. at 7. The court concludes that substantial evidence supports the Department’s determination

that Goodman qualifies for a new shipper review. The Department’s specific findings as to

price, quantity, and the role of Ms. Gao are discussed below.

1. The Prices in Goodman’s Sales

Commerce determined that the AUV on the four entries of Goodman’s merchandise that

were made during the POR was 1.8 times the AUV for all Chinese whole garlic entries during
Court No. 14-00101 Page 10

the POR. See Remand Redeterm. 4. 2 Commerce, in rescinding the new shipper review,

concluded that the difference between the prices of Goodman’s entries and the AUV for all

whole garlic entries during the POR “indicates that these entries were not typical of the sales

Goodman will make in the future” and that the prices of Goodman’s entries were “aberrational”

and not “commercially reasonable.” Final Analysis Mem. 7-8.

The court concluded in Goodman I that Commerce “failed to analyze certain record data

that were relevant to, and indeed probative of, the issue of whether Goodman’s prices were

aberrational or commercially unreasonable.” Goodman I, 40 CIT at __, 172 F. Supp. 3d

at 1374-75. The court mentioned, for example, that Commerce did not address “the record data

showing the prices at which Goodman purchased the subject garlic from the unrelated Chinese

producer,” which, the court noted, “are not comparable to the general AUV Commerce obtained

from the Customs data.” Id., 40 CIT at __, 172 F. Supp. 3d at 1375. The record data showed

“that the weighted average unit value for Goodman’s purchases of the garlic from the unrelated

producer was $2.52/kg., or nearly a dollar per kilogram higher than the AUV for all Chinese

whole garlic inputs during the POR” and also showed “a weighted-average mark-up of $0.33/kg.

($2.85-$2.52), or 13%.” Id., 40 CIT at __, 172 F. Supp. 3d at 1375 n.9, n.10.

The Remand Redetermination states that “[w]ith respect to the purchase prices of garlic

in the Chinese market, we continue to find those prices irrelevant for purposes of our

antidumping analysis.” Remand Redeterm. 4. Commerce explained that it does “not rely on

2
The AUV of Goodman’s four entries were $2.67 per kilogram, $2.83 per kilogram,
$2.83 per kilogram, and $3.16 per kilogram. Goodman I, 40 CIT at __, 172 F. Supp. 3d
at 1374 n.8 (citing New Shipper Review of the Antidumping Duty Order on Fresh Garlic from the
People’s Republic of China: Final Analysis of Shijiazhuang Goodman Trading Co., Ltd.,
A-570-831, ARP 11-12, at 7 (Int’l Trade Admin. Apr. 3, 2014)). Further, “[t]he AUV for all
whole garlic entries during the POR was $1.58/kg.” compared to the weighted AUV of
Goodman’s four entries during the POR which was $2.85 per kilogram. Id.
Court No. 14-00101 Page 11

prices within a non-market economy, so Goodman’s purchase price in China does not provide a

useful point for comparison.” Id. at 5. The court disagrees with this reasoning because a price in

a sale of garlic between a Chinese producer and an unrelated Chinese exporter, although the sale

was made in China, still would be relevant to the issue of whether the exporter’s resale price for

that same garlic was aberrational or commercially unreasonable when compared to the prices of

other garlic exported from China and imported into the United States. Nevertheless, the issue is

moot because Commerce determined that Goodman’s sale prices “were not aberrational,

regardless of Goodman’s purchase prices in the PRC.” Id. at 11.

The court also concluded that Commerce, when comparing Goodman’s prices to a POR-

wide AUV for all imports of whole garlic from China, “failed to analyze record data showing

that a significant increase in garlic prices occurred during the POR.” Goodman I, 40 CIT at __,

172 F. Supp. 3d at 1375. The court observed that the Customs import data showed “that the

AUV of garlic imports from China was markedly higher during the last eight months of the

period of review than it had been during the first four months of that twelve-month period and

that the AUV in the last five months, when Goodman’s sales and entries occurred, remained at

that higher level.” Id. (footnote omitted).

In its Remand Redetermination, Commerce stated that “it is not the Department’s

practice to normally match the entries by month within the POR because we have no information

on the corresponding sales dates of the CBP entries, which could vary widely.” Remand

Redeterm. 4. Nevertheless, Commerce “compared Goodman’s prices to the AUV of the last

eight months of the POR” and found that the average price of Goodman’s sales is “1.4 times

higher than the AUV of the last eight months in the POR, as opposed to 1.8 times higher than the

AUV for the entire POR.” Id. (footnote omitted). Referring to Goodman’s sales prices during
Court No. 14-00101 Page 12

July, August, and September 2012, Commerce concluded that “in accordance with the Court’s

directive, after examining this limited subset of entries, the Department has determined that

Goodman’s sales were within the range of many other sales prices, and this supports a finding

that the sales are not aberrational.” Id. (footnote omitted).

Addressing a concern by the court concerning “an apparent anomaly presented by

Customs entry data that itself appears to involve aberrational values for garlic,” Goodman I,

40 CIT at __, 172 F. Supp. 3d at 1376, Commerce found that certain low value sales of a single

exporter substantially decreased the AUV in the Customs data. Remand Redeterm. 5. In the

context of these data, Commerce observed that Goodman’s highest-price sale was not

substantially higher than its next-highest-price sale and concluded that “when considering

Goodman’s higher-priced sales along with these lower-priced and otherwise legitimate market

transactions, Goodman’s prices do not appear to be illegitimate.” Id. (footnote omitted).

Commerce also addressed the court’s observation in Goodman I, 40 CIT at __,

172 F. Supp. 3d at 1376, that “Commerce did not address the possibility that its comparison of

Goodman’s prices with the weighted average unit value from the Customs data could have been

affected by price variation due to bulb size.” In response, Commerce stated in the Remand

Redetermination as follows: “[T]he Department does not have a method of identifying bulb sizes

for CBP entries to establish a relationship between size and price, but reason and the evidence

available indicate that large bulbs can command higher prices in the market.” Remand

Redeterm. 5. Commerce added that “[s]ome record evidence also suggests that Goodman’s

garlic bulbs were at the high end of the garlic market, which may account for the higher prices.”

Id. (footnote omitted).
Court No. 14-00101 Page 13

Although the court, as discussed above, does not agree entirely with the Department’s

analysis, it concludes that substantial record evidence supports the finding Commerce reached as

to the entry prices for Goodman’s garlic during the POR. That finding, which Commerce

reached after considering record evidence it did not address previously, is that those prices “do

not appear to be illegitimate.” Remand Redeterm. 5 (footnote omitted).

2. The Quantities in Goodman’s Sales

In deciding to rescind the new shipper review, Commerce relied in part on its finding that

the quantities in each of the four entries of Goodman’s merchandise were smaller than the

average quantity on the entries of garlic from the PRC shown in the Customs import data. As the

court stated in Goodman I, “Commerce cited the Customs import data on Chinese garlic entries

showing that the average quantity on Goodman’s entries during the POR was less than half the

average quantity for all entries of Chinese garlic during the period of review, which it described

as the ‘normal entry size.’” Goodman I, 40 CIT at __, 172 F. Supp. 3d at 1377. In Goodman I,

the court held that “[s]ubstantial evidence is not available on this record to support a finding that

the quantities of Goodman’s sales were, in the Department’s words, ‘aberrational’ and not

‘commercially reasonable’” because “[t]he quantities on the four entries, while smaller than the

average shown in the Customs import data, cannot be described truthfully as commercially

insignificant or exceptional, whether considered individually or collectively.” Id. (citation

omitted). The court stated, further, that “in judging the quantities on the individual entries of

Goodman’s subject merchandise to be unacceptable because they are less than half of what

Commerce considered to be the ‘normal entry size,’ Commerce unfavorably compared

Goodman’s quantities with a concept, i.e., ‘normal entry size,’ that it failed to ground in record

evidence.” Id.
Court No. 14-00101 Page 14

In its Remand Redetermination, Commerce clarified that in using the term “normal entry

size,” it “was merely commenting on the extent to which Goodman’s quantities were below the

average entry size of garlic exporters from the PRC.” Remand Redeterm. 6. Commerce stated

that it “agrees that the low quantities are not in and of themselves ‘aberrational,’” adding that “if

there were other factors suggesting the absence of bona fide sales, then the below-average

quantities would be more relevant.” Id.

3. The Involvement of Ms. Gao

Commerce based its finding that Goodman’s sales were not bona fide partly on an

inference it drew regarding activities of Ms. Gao, who was employed by Goodman during the

POR and previously had been employed by another garlic exporter in the PRC, Hebei Golden

Bird Trading Co., Ltd. (“Golden Bird”). As described in Goodman I, “Commerce stated in the

Final Analysis Memorandum that it ‘inferred’ that a person employed by Goodman during the

POR, whom Commerce identified as ‘Ms. Gao,’ conducted activities on behalf of Goodman ‘in

making the relevant shipments to the United States . . .’ that were not conducted solely, if at all,

in ‘Goodman’s interests.’” Goodman I, 40 CIT at __, 172 F. Supp. 3d at 1372 (quoting Final

Analysis Mem. 8). “Commerce also expressed in the Decision Memorandum that ‘the

Department has concerns with regards to the reliability of responses provide [sic] by Goodman

with regards to Ms. Gao’s employment at Golden Bird.’” Id., 40 CIT at __, 172 F. Supp. 3d

at 1377 (quoting Rescission Decision Mem 4).

Regarding the Department’s inference, the court opined in Goodman I that “an inference

is not a finding, and this particular inference is vague and conclusory.” Id., 40 CIT at __,

172 F. Supp. 3d at 1378. The court added that “[a]n agency may draw a reasonable inference so

long as it is drawn from record evidence or a finding based on record evidence, but this inference
Court No. 14-00101 Page 15

is drawn from neither.” Id. The court also concluded that “[t]he Department’s expressed

‘concern’ about the reliability of Goodman’s questionnaire responses is also vague, and

Commerce fails to link its concern to specific information Goodman provided during the new

shipper review that Commerce deems unreliable or that could be shown to be relevant to the

question of whether the prices and quantities in Goodman’s sales were aberrational.” Id.

In its Remand Redetermination, Commerce concluded that “there is no additional

evidence on the record that would allow the Department to further develop the inference we

stated in the Final Rescission.” Remand Redeterm. 15. Commerce mentioned “an internal

contradiction” in a declaration by Ms. Gao concerning her previous employment but further

stated that the “contradiction is all that is certain on this point” and that “[g]iven the

Department’s revised findings concerning Goodman’s sales prices and quantities, we now also

revise our inference, finding that the noted discrepancy in Ms. Gao’s contradictory declaration is

insufficient to support a conclusion that Goodman’s sales were not bona fide.” Id. at 15-16.

E. The Court Does Not Find Merit in Defendant-Intervenors’ Objections to the Remand
Redetermination

Defendant-intervenors raise two objections to the Remand Redetermination. Maintaining

that “the evidence identified by the Court as detracting from the agency’s decision did not

require a reversal of the Department’s final results,” they argue, first, that Commerce again

should have found Goodman’s sales not to be bona fide transactions and, on that basis, again

rescinded the new shipper review. Def.-Intervenors’ Comments 3. Second, they argue in the

alternative that the AUV of the highest priced of the three entries of Goodman’s garlic “is

aberrational and should have been disregarded by the Department in calculating an individual

antidumping rate for Goodman.” Id.
Court No. 14-00101 Page 16

Defendant-intervenors’ first argument is largely an attempt to reargue issues the court

decided in Goodman I. Defendant-intervenors raised this argument in their comments on a draft

version of the remand redetermination (which comments they incorporate by reference in their

comments to the court), but Commerce rejected the argument upon issuing the Remand

Redetermination. Id. at 2. They point to their having argued in their comments on the draft that

they “explained why the evidence identified by the Court as detracting from the agency’s

decision did not require a reversal of the Department’s final results and why additional record

evidence supported the Department continuing to find that Goodman’s sales are not bona fide

transactions that can serve as the basis for an individually-determined antidumping margin.” Id.

This argument sidesteps the question now before the court, which is not whether Commerce on

this record permissibly could have reached the outcome defendant-intervenors advocate, i.e.,

rescission of the new shipper review, but whether substantial evidence supports the decision

Commerce actually reached in the Remand Redetermination. Defendant-intervenors fail to make

the case that Commerce lacked an evidentiary basis to conclude that the Goodman’s sales were

bona fide and, based on that finding, to complete the new shipper review. As the court discussed

above, the record contains substantial evidence to support the findings the Remand

Redetermination made “upon re-evaluation of the record evidence” that the prices “do not appear

to be illegitimate” and that the quantities in the entries are not “aberrational,” Remand

Redeterm. 3-6, and also the finding that the record evidence as to the activities of Ms. Gao is

“not adequate to support a non bona fide finding in light of the lack of evidence of an

aberrational price or quantity,” id. at 7.

On the issue of prices, which was the principal reason Commerce found Goodman’s sales

not to be bona fide in the Rescission, Commerce concluded that the substantially lower
Court No. 14-00101 Page 17

differential of 1.4 between Goodman’s prices and the AUV in the Customs data (based on an

eight-month base period) when compared to a differential of 1.8 (based on a twelve-month

period) “along with the presence of certain low-value sales that substantially decrease the AUV

and the possibility that Goodman’s bulb sizes were at the high end of the garlic market, lead us

to a different conclusion about the bona fide nature of Goodman’s sales price.” Id. at 11.

Defendant-intervenors maintain that the differential of 1.4 is evidence that Goodman’s prices

“are unlikely to be predictive of Goodman’s future sales prices,” Def.-Intervenors’ Comments

Attach. 1 at 7, but this argument fails to show that Commerce impermissibly found the sales to

be bona fide based on the record evidence considered on the whole. They also argue that the

record did not contain evidence establishing that Goodman’s garlic was resold in the United

States at a profit, which lack of evidence they attribute to a failure by Goodman and its U.S.

customer to make an adequate record. Def.-Intervenors’ Comments Attach. 1 at 10-11. They

even go so far as to suggest, without a factual basis, that there was a failure on the part of

Goodman to cooperate in the proceeding. Id. The lack of evidence of resale at a profit, which

Commerce did not attribute to a failure of Goodman to cooperate in responding to the

Department’s requests for information, does not invalidate the Department’s finding, based on

the evidence the record did contain, that Goodman’s sales were bona fide.

In summary, the court must reject defendant-intervenors’ first argument because the

record considered on the whole, including the evidence Commerce did not address originally,

contains substantial evidence to support the Department’s determination that Goodman qualifies

for a new shipper review based on the sales and entries Commerce analyzed in the Remand

Redetermination.
Court No. 14-00101 Page 18

Defendant-intervenors’ alternative argument that Commerce should have excluded

Goodman’s highest-priced entry from the calculated margin also rests on the invalid premise that

the record evidence required Commerce to take such a step. Commerce considered this

argument in the Remand Redetermination and rejected it, noting that the price in the sale at issue

was not significantly higher than the next highest-priced sale and did not deviate from the mean

as much as “a substantial number of transactions clustered at the low end of the dataset” deviated

from the mean. Remand Redeterm. 13. This specific evidence, together with the evidence on the

record as a whole, supported the Department’s finding that this sale, like the other sales

Commerce analyzed, was bona fide.

F. The Court Sustains the Department’s Individually-Determined Margin of $0.08 per
kilogram for Goodman

After determining that Goodman’s sales were bona fide, Commerce calculated an

individually-determined dumping margin for Goodman of $0.08 per kilogram. Remand

Redeterm. 1. Commerce addressed comments raised in case briefs and rebuttal briefs during the

new shipper review regarding the preliminarily-calculated $0.44-per-kilogram margin and made

certain adjustments to the surrogate values, resulting in the $0.08-per-kilogram margin.

Goodman supports this determination, and other than their objection that the highest-priced entry

should have been excluded, defendant-intervenors raised no objections to the Department’s

margin calculation, which the court sustains.
Court No. 14-00101 Page 19

III. CONCLUSION

For the reasons discussed above, the court concludes that substantial evidence on the

record supports the Department’s determination that Goodman’s sales were bona fide and that

Goodman therefore is eligible for a new shipper review and for an individually-determined

dumping margin of $0.08 per kilogram. Judgment will enter accordingly.

/s/ Timothy C. Stanceu
Timothy C. Stanceu
Chief Judge
Dated: May 26, 2017
New York, New York