Taian Ziyang Food Co., Ltd. v. U.S.

637 F.Supp.2d 1093

TAIAN ZIYANG FOOD COMPANY, LTD., et al., Plaintiffs, v. UNITED STATES, Defendant, and Fresh Garlic Producers Association, et al., Defendant-Intervenors.

Slip Op. 09-67. Court No. 05-00399.

United States Court of International Trade.

June 29, 2009.

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White & Case LLP, Washington, DC (Adams C. Lee and Jay C. Campbell), for Plaintiff Taian Ziyang Food Company, Ltd.

Bryan Cave LLP (Albert Lo and Kelly A. Slater), for Plaintiff Taian Fook Huat Tong Kee Foodstuffs Co., Ltd.

Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP (Bruce M. Mitchell, Paul G. Figueroa, Mark E. Pardo, and Richard A. Burns), for Plaintiffs Zhengzhou Harmoni Spice Co., Ltd., Jinan Yipin Corporation, Ltd., Linshu Dading Private Agricultural Products Co., Ltd., and Sunny Import & Export Co., Ltd.

deKieffer & Horgan, Washington, DC (John J. Kenkel, Gregory S. Menegaz and J. Kevin Horgan), for Plaintiff Jinxiang Dong Yun Freezing Storage Co., Ltd.

Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director, and Reginald T. Blades, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Mark T. Pittman and Richard P. Schroeder); Scott D. McBride, Arthur Sidney, Jennifer Johnson, and Evangeline D. Keenan, Office of the Chief Counsel for Import Administration U.S. Department of Commerce, Of Counsel; for Defendant.

Kelley Drye & Warren LLP, Washington, DC (Michael J. Coursey, Michael R. Kershow, and Adam H. Gordon), for Defendant-Intervenors the Fresh Garlic Producers Association, Christopher Ranch, L.L.C., The Garlic Company, Valley Garlic, and Vessey and Company, Inc.

OPINION

RIDGWAY, Judge.

In this consolidated action,¹ the plaintiff Chinese producers and exporters of fresh garlic—Taian Ziyang Food Company, Ltd. ("Ziyang"), Taian Fook Huat Tong Kee Foodstuffs Co., Ltd. ("FHTK"), Zhengzhou Harmoni Spice Co., Ltd. ("Harmoni"), Jinan Yipin Corporation, Ltd. ("Jinan Yipin"), Linshu Dading Private Agricultural Products Co., Ltd. ("Linshu Dading"), Sunny Import & Export Co., Ltd. ("Sunny"),² and Jinxiang Dong Yun Freezing Storage Co., Ltd. ("Dong Yun")—contest the final results of the U.S. Department of Commerce's ninth administrative review of the antidumping duty order covering fresh garlic from the People's Republic of China ("PRC"). See Fresh Garlic from the People's Republic of China: Final Results of Antidumping Duty Administrative Review, 70 Fed.Reg. 34,082 (June 13, 2005) ("Final Results"); Issues and Decision Memorandum for the Administrative Review of the Antidumping Duty Order on Fresh Garlic from the People's Republic of China (June 6, 2005) (Pub.Doc. No. 348) ("Decision Memorandum"); Notice of Amended Final Results of Antidumping Duty Administrative Review: Garlic from the People's Republic of China, 70 Fed.Reg. 56,639 (Sept. 28, 2005) ("Amended Final Results").³ Pending before the Court are four separate Motions for Judgment on the Agency Record, in which the Chinese Producers contest various different aspects of the Final Results.⁴

Ziyang challenges Commerce's application of "facts available" with "adverse inferences" in calculating Ziyang's dumping margin. See generally Memorandum of Points and Authorities in Support of Plaintiff Taian Ziyang Food Company, Ltd.'s CIT Rule 56.2 Motion for Judgment Upon the Agency Record ("Ziyang Brief"); Reply Brief of Plaintiff Taian Ziyang Food Company, Ltd., ("Ziyang Reply Brief"); Supplemental Brief of Plaintiff Taian Ziyang Food Company, Ltd. ("Ziyang Supplemental Brief").⁵

FHTK similarly disputes Commerce's application of adverse facts available, as well as Commerce's valuation of garlic seed as a factor of production. See generally Brief of Taian Fook Huat Tong Kee Foodstuffs in Support of Rule 56.2 Motion for Judgment on the Agency Record ("FHTK Brief"); Reply Brief of Plaintiff Taian Fook Huat Tong Kee Foodstuffs Co., Ltd. ("FHTK Reply Brief").

The GDLSK Plaintiffs contest Commerce's valuation of garlic seed, the inclusion of water as a factor of production, the calculation of the labor rate, the valuation of garlic seed from a producer's own crops as a factor of production, the valuation of several post-harvesting factors of production (i.e., cardboard cartons, plastic jars, and ocean freight), and the valuation of cold storage. See generally Brief in Support of Plaintiffs' Rule 56.2 Motion for Judgment Upon the Agency Record ("GDLSK Brief"); Reply Brief in Support of GDLSK Plaintiffs' Rule 56.2 Motion for Judgment Upon the Agency Record ("GDLSK Reply Brief"); Supplemental Brief in Support of GDLSK Plaintiffs' Rule 56.2 Motion for Judgment Upon the Agency Record ("GDLSK Supplemental Brief"); Response to Defendant's Supplemental Brief ("GDLSK Supplemental Response Brief").

Dong Yun challenges Commerce's inclusion of water and land as factors of production, the calculation of the labor rate and the selection of the financial ratios. See generally Memorandum in Support of Plaintiff Dong Yun's Rule 56.2 Motion for Judgment Upon the Agency Record ("Dong Yun Brief"); Plaintiff's Reply Brief to Defendant's Memorandum in Response to Plaintiff's Rule 56.2 Motion for Judgment Upon the Agency Record ("Dong Yun Reply Brief"); Letter Memorandum from Counsel for Dong Yun to Clerk of the Court (May 16, 2008) ("Dong Yun Supplemental Brief"); Jinxiang Dong Yun Freezing Storage Co. Ltd., Response to Defendant's Supplemental Brief of May 16, 2008 ("Dong Yun Supplemental Response Brief").

Defendant-Intervenors the Fresh Garlic Producers Association, Christopher Ranch, L.L.C., The Garlic Company, Valley Garlic, and Vessey and Company, Inc. (collectively, the "Domestic Producers") oppose the Chinese Producers' motions and urge that the Final Results be sustained in their entirety. See generally Defendant-Intervenors' Brief in Response to Plaintiffs' Motions for Judgment on the Administrative Record ("Domestic Producers Response Brief"); Defendant-Intervenors' Rebuttal to Plaintiffs' Supplemental Briefs ("Domestic Producers Rebuttal Brief").

The Government, in turn, maintains that the Final Results should be sustained in all respects, save two. See Defendant's Memorandum in Opposition to Plaintiffs' Rule 56.2 Motions for Judgment Upon the Agency Record ("Def. Response Brief"); Defendant's Surreply to Dong Yun's Reply to the Response to Its Rule 56.2 Motion for Judgment Upon the Agency Record ("Def. Surreply Brief"); Defendant's Supplemental Brief ("Def. Supplemental Brief"); Defendant's Rebuttal to Plaintiffs' Supplemental Briefs ("Def. Rebuttal Brief"). First, the Government requests that the issue of valuing garlic seed from a producer's own crop be remanded, so that Commerce may address the arguments of Harmoni and Jinan Yipin. See Def. Response Brief at 69-71. In addition, the Government requests a remand to permit Commerce to apply a new labor rate to Dong Yun. See Def. Response Brief at 2, 112-13.

Jurisdiction lies under 28 U.S.C. § 1581(c) (2000).⁶ As detailed more fully below, the Motion for Judgment on the Agency Record filed by Ziyang must be denied, while the Motions for Judgment on the Agency Record filed by FHTK, the GDLSK Plaintiffs and Dong Yun are granted in part and denied in part.

I. Standard of Review

A final determination by Commerce in an antidumping case must be upheld, except to the extent that it is 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); see also Elkem Metals Co. v. United States, 468 F.3d 795, 800 (Fed.Cir.2006). Substantial evidence is "more than a mere scintilla"; rather, it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951) (quoting Consol. Edison Co. v. Nat'l Labor Relations Bd., 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)); see also Mittal Steel Point Lisas Ltd. v. United States, 548 F.3d 1375, 1380 (Fed.Cir.2008) (same). Moreover, any evaluation of the substantiality of evidence "must take into account whatever in the record fairly detracts from its weight," including "contradictory evidence or evidence from which conflicting inferences could be drawn." Suramerica de Aleaciones Laminadas, C.A. v. United States, 44 F.3d 978, 985 (Fed.Cir.1994) (quoting Universal Camera, 340 U.S. at 487-88, 71 S.Ct. 456); see also Mittal Steel, 548 F.3d at 1380-81 (same).

On the other hand, the mere fact that it may be possible to draw two inconsistent conclusions from evidence in the record does not prevent Commerce's determination from being supported by substantial evidence. See Am. Silicon Techs. v. United States, 261 F.3d 1371, 1376 (Fed. Cir.2001); see also Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966). Finally, while Commerce must explain the bases for its decisions, "its explanations do not have to be perfect." NMB Singapore Ltd. v. United States, 557 F.3d 1316, 1319 (Fed.Cir.2009). However, "the path of Commerce's decision must be reasonably discernable," to support judicial review. Id.

II. Background

The underlying antidumping order here at issue, covering imports of fresh garlic from the PRC, dates back to 1994. See Antidumping Duty Order: Fresh Garlic From the People's Republic of China, 59 Fed.Reg. 59,209 (Nov. 16, 1994) ("Antidumping Order"). The administrative review which is the subject of this action— the ninth such review—began in November 2003, when Commerce gave notice of the opportunity to request a review of the Antidumping Order for the period November 1, 2002 through October 31, 2003 (known as the "period of review" or "POR"). See generally Antidumping or Countervailing Duty Order, Finding, or Suspended...