New Mex. Garlic Growers Coalition v. United States, Zhengzhou Harmoni Spice Co.

953 F.3d 1358

NEW MEXICO GARLIC GROWERS COALITION, El Bosque Farm, Plaintiffs-Appellants

Qingdao Tiantaixing Food Co., Ltd., Shandong Jinxiang Zhengyang Import & Export Co., Ltd., Jining Alpha Food Co., Ltd., Plaintiffs

v.UNITED STATES, Zhengzhou Harmoni Spice Co., Ltd., Harmoni International Spice, Inc., Fresh Garlic Producers Association, Christopher Ranch L.L.C., The Garlic Company, Valley Garlic, Vessey and Company, Inc., Defendants-Appellees

2019-1404

United States Court of Appeals, Federal Circuit.

Decided: March 27, 2020

Anthony Lawrence Lanza, Brodie Hugh Smith, Lanza & Smith, Irvine, CA, argued for plaintiffs-appellants.

Meen Geu Oh, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee United States. Also represented by Joseph H. Hunt, Reginald Thomas Blades, Jr., Jeanne Davidson; Emma T. Hunter, Office of the Chief Counsel for Trade Enforcement & Compliance, United States Department of Commerce, Washington, DC.

Ned H. Marshak, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, New York, NY, argued for defendants-appellees Zhengzhou Harmoni Spice Co., Ltd., Harmoni International Spice, Inc. Also represented by Bruce M. Mitchell, Alan Lebowitz; Jordan Charles Kahn, Kavita Mohan, Andrew Thomas Schutz, Washington, DC.

John M. Herrmann, Kelley Drye & Warren, LLP, Washington, DC, argued for defendants-appellees Fresh Garlic Producers Association, Christopher Ranch L.L.C., The Garlic Company, Valley Garlic, Vessey and Company, Inc. Also represented by Michael J. Coursey, Joshua Morey.

Before Moore, Schall, and Taranto, Circuit Judges.

SCHALL, Circuit Judge.

This is an antidumping case. It arises out of the 21st administrative review ("AR 21") of the antidumping duty order on fresh garlic from the People’s Republic of China ("China" or "PRC"). On appeal before us is the decision of the United States Court of International Trade sustaining the Department of Commerce’s ("Commerce") final results and partial rescission of the administrative review. See New Mexico Garlic Growers Coalition v. United States , 352 F. Supp. 3d 1281 (Ct. Int’l Trade 2018) (" NMGGC "); Fresh Garlic from the People’s Republic of China , 82 Fed. Reg. 27,230 (Dep’t of Commerce June 14, 2017) (final results and partial rescission of the 21st antidumping duty admin. review; 2014–2015) ("Final Results "). For the reasons set forth below, we affirm the decision of the Court of International Trade.

BACKGROUND

I.

The antidumping law provides for the assessment of duties on foreign merchandise being, or likely to be, sold in the United States "at less than its fair value." 19 U.S.C. § 1673.¹ An antidumping investigation is initiated when a domestic industry petitions Commerce to investigate allegations of such sales. Sango Int’l, L.P. v. United States , 484 F.3d 1371, 1373 (Fed. Cir. 2007) ; 19 U.S.C. §§ 1673a(b), 1677(9)(C). At the end of the investigation, if Commerce and the U.S. International Trade Commission have made the requisite determinations, Commerce publishes an order that directs U.S. Customs and Border Protection to assess antidumping duties on imports of goods covered by the investigation. 19 U.S.C. § 1673e(a) ; SolarWorld Ams., Inc. v. United States , 910 F.3d 1216, 1220 (Fed. Cir. 2018). Each year after the order is published, if Commerce receives a request for an administrative review of the order, it reviews and determines the amount of any antidumping duty. 19 U.S.C. § 1675(a)(1).

Commerce calculates a "dumping margin" for a particular product subject to an antidumping duty order or a subsequent review. 19 U.S.C. § 1677(35)(A). The dumping margin is equal to the amount by which the normal value (the price a producer charges in its home market) exceeds the export price (the price of the product in the United States) or constructed export price of the subject merchandise. Id. ; U.S. Steel Corp. v. United States , 621 F.3d 1351, 1353 (Fed. Cir. 2011). The antidumping duty rate is equal to the dumping margin. Changzhou Hawd Flooring Co., Ltd. v. United States , 947 F.3d 781, 788 (Fed. Cir. 2020) ("The antidumping duty order ‘directs customs officers to assess an antidumping duty equal to the amount’ of the dumping margin within a certain period.") (quoting 19 U.S.C. § 1673e(a)(1) ).

Requests for administrative reviews of antidumping duty orders are governed by statute and regulation. As noted, the statute providing for administrative reviews is 19 U.S.C. § 1675(a)(1). It reads in relevant part as follows:

At least once during each 12-month period ... the administering authority, if a request for [a] review has been received and after publication of notice of such review in the Federal Register, shall ... review[ ] and determine ... the amount of any antidumping duty.

Commerce has promulgated a regulation implementing § 1675(a)(1). The regulation is set forth at 19 C.F.R. § 351.213(b). It reads in relevant part as follows:

(b) Request for administrative review.

(1) Each year during the anniversary month of the publication of an antidumping ... duty order, a domestic interested party ... may request in writing that [Commerce] conduct an administrative review under [ 19 U.S.C. § 1675(a)(1) ] of specified individual exporters or producers covered by an order ... if the requesting person states why the person desires [Commerce] to review those particular exporters or producers.

(2) During the same month, an exporter or producer covered by an order ... may request in writing that [Commerce] conduct an administrative review of only that person.

Paragraph (d) of 19 C.F.R. § 351.213 addresses rescission of an administrative review. Specifically, 19 C.F.R. § 351.213(d)(1) provides, in pertinent part:

Withdrawal of request for review. [Commerce] will rescind an administrative review under this section, in whole or in part, if a party that requested a review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review.

Section 1677(9) of 19 U.S.C. defines the term "interested party" as it relates to the imposition of antidumping duties. Relevant to this case, subsection (9)(C) states that "interested party" means "a manufacturer, producer, or wholesaler in the United States of a domestic like product." Commerce has promulgated a regulation setting forth definitions for many technical terms applicable to antidumping proceedings. See 19 C.F.R. § 351.102. Paragraph 17 of 19 C.F.R. § 351.102(b) defines "[d]omestic interested party" to include an interested party as set forth in 19 U.S.C. § 1677(9)(C).

Pursuant to 19 U.S.C. § 1677f-1(c)(1), when Commerce determines dumping margins during administrative reviews, it must "determine the individual weighted average dumping margin for each known exporter and producer of the subject merchandise." 19 U.S.C. § 1677f-1(c)(1).² The statute provides an exception to this requirement, however, when "it is not practicable ... because of the large number of exporters or producers involved in the investigation or review." 19 U.S.C. § 1677f-1(c)(2). In that case, Commerce may determine dumping margins for a "reasonable number of exporters or producers by limiting its examination to– (A) a sample of exporters, producers, or types of products that is statistically valid ..., or (B) exporters and producers accounting for the largest volume of the subject merchandise from the exporting country that can be reasonably examined." Id.

In antidumping duty proceedings involving merchandise from a nonmarket economy country, Commerce presumes all respondents are government-controlled and therefore subject to a single country-wide rate. Ad Hoc Shrimp Trade Action Comm. v. United States , 802 F.3d 1339, 1353 (Fed. Cir. 2015).³ A respondent may rebut this presumption and obtain a "separate rate" by establishing the absence of both de jure (in law) and de facto (in fact) government control over its export activities. See id. ; Michaels Stores, Inc. v. United States , 766 F.3d 1388, 1392 (Fed. Cir. 2014). China is a nonmarket economy country. See Final Results , 82 Fed. Reg. at 27,230, 27,231–32; Michaels Stores , 766 F.3d at 1392. Relevant here, exporters from China that are not eligible for a separate rate are said to be part of the "PRC-wide entity." See Final Results , 82 Fed. Reg. at 27,230, 27,232; Michaels Stores , 766 F.3d at 1392. The term "PRC-wide entity" refers to all companies within China that are considered to be subject to government control. See Michaels Stores , 766 F.3d at 1390 ; J.A. 6302.

II.

In 1994, Commerce issued an order imposing antidumping duties on fresh garlic from China. See Antidumping Duty Order: Fresh Garlic from the People’s Republic of China , 59 Fed. Reg. 59,209 (Dep’t of Commerce Nov. 16, 1994) ("AD Order "). Commerce calculated a 376.67 percent weighted-average antidumping duty margin for the PRC-wide entity, which was later converted to a $4.71 per kilogram rate. AD Order , 59 Fed. Reg. at 59,210 ; J.A. 698. In November of 2015, Commerce published a notice informing interested parties of the opportunity to request an administrative review of the AD Order for the period of review ("POR") November 1, 2014, through October 31, 2015. See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Req. Admin. Review , 80 Fed. Reg 67,706, 67,707 (Dep’t of Commerce Nov. 3, 2015).

In response to its notice, Commerce received requests for review from multiple entities. Zhengzhou Harmoni Spice Co., Ltd. ("Harmoni"), a producer and exporter of fresh garlic from China, requested a review of itself under 19 C.F.R. § 351.213(b)(2). NMGGC , 352 F. Supp. 3d at 1287 ; J.A. 151. Pursuant to 19 C.F.R. § 351.213(b)(1), two other entities also requested a review of Harmoni. The first entity was the Fresh Garlic Producers Association ("FGPA"), a California association comprised of individual members Christopher Ranch, LLC, The Garlic Company, Valley Garlic,...