Wuhu Fenglian Co. v. United States

836 F.Supp.2d 1398

34 ITRD 1481

WUHU FENGLIAN CO., LTD., and Suzhou Shanding Honey Product Co., Ltd., Plaintiffs,

v. UNITED STATES, Defendant,andAmerican Honey Producers Association, and Sioux Honey Association, Defendant–Intervenors.

United States Court of International Trade.

Slip Op. 12–57.

Court No. 11–00045.

April 25, 2012.

Yingchao Xiao, Lee & Xiao, of San Marino, CA, for Plaintiffs.

Courtney S. McNamara, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for Defendant. With her on the briefs were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, Reginald T. Blades, Jr., Assistant Director, and Sapna Sharma, Attorney, United States Department of Commerce, of Counsel.

Michael J. Coursey and R. Alan Luberda, Kelley Drye & Warren LLP, of Washington, DC, for Defendant–Intervenors.

OPINION & ORDER

CARMAN, Judge:

Plaintiffs Wuhu Fenglian Co., Ltd. (“Fenglian”) and Suzhou Shanding Honey Product Co., Ltd. (“Suzhou”) (collectively, “Plaintiffs”) challenge a decision rendered by the U.S. Department of Commerce (“Commerce”) rescinding antidumping duty new shipper reviews requested by Plaintiffs. (Brief in Supp. of Pls.' R. 56.2 Mot. for J. Upon the Agency R. (“Pls.' Mot.”) 1–2.) For the reasons set forth below, Commerce's determination is remanded for Commerce to accept and consider certain excluded evidence.

Background

On February 4, 2010, Plaintiffs requested new shipper reviews on honey from the People's Republic of China. (Pls.' Mot. 3.) Commerce issued questionnaires and supplemental questionnaires to which Plaintiffs timely responded, and decided on July 7, 2010 that because of the “extraordinarily complicated” nature of this review, the deadline for a preliminary determination would be extended to November 2, 2010. ( Id. ( citing Honey From the People's Republic of China: Extension of Time Limit for the Preliminary Results for New Shipper Review, 75 Fed.Reg. 38,980 (July 7, 2010)).) Commerce published its Preliminary Determination on September 10, 2010, rescinding the new shipper reviews on the grounds that the sales made by Fenglian and Suzhou did not appear to be bona fide. Honey From the People's Republic of China: Preliminary Intent to Rescind New Shipper Reviews, 75 Fed.Reg. 55,307, 55,308 (Sep. 10, 2010) (“Preliminary Determination”). Commerce's Final Determination, which Plaintiffs challenge by this lawsuit, “made no changes to [the] preliminary decision to rescind the [new shipper reviews] of Suzhou and Fenglian.” Honey From the People's Republic of China: Final Results and Rescission of Antidumping Duty New Shipper Reviews, 76 Fed.Reg. 4,289, 4,290 (Jan. 25, 2011) (“Final Determination”).

As a threshold matter, Plaintiffs dispute Commerce's decision to reject as untimely two of Plaintiffs' submissions made during the course of the administrative proceeding. The first was Plaintiffs' September 18, 2010 submission consisting of rebuttal comments to an August 24, 2010 submission from Petitioners (Defendant–Intervenors in this action). (Pls.' Mot. 4.) The second was Plaintiffs' September 22, 2010 submission consisting of factual information aiming to rebut certain U.S. Customs and Border Protection data (“CBP data”) that Commerce had placed on the record on September 2, 2010. ( Id.) In rejecting each of these submissions from Plaintiffs, Commerce cited 19 C.F.R. § 351.301(c), which regulates the time within which interested parties may rebut certain types of information placed on the record. 19 C.F.R. § 351.301(c)(1), see also Def.'s Confid. App'x in Supp. of Its Resp. in Opp. to Pls.' Mot. for J. Upon the Agency R. (“Def.'s App'x”) Exs. M, N (letters from Commerce rejecting Plaintiffs' September 18 submissions), and Confid. Exs. for Brief in Supp. of Pls.' Rule 56.2 Mot. for J. Upon the Agency R. (“Pls.' App'x”) Ex. 4 (letter from Commerce rejecting Suzhou's September 22 submission).¹

Plaintiffs also assert that Commerce failed to issue enough questionnaires to obtain all essential data before rendering the Final Determination. In addition to the initial and supplemental questionnaires that Commerce did issue, Plaintiffs asked Commerce to issue two further supplemental questionnaires. On September 4, 2010, Plaintiffs requested and received a supplemental questionnaire, but it was not addressed to the issues Plaintiffs had wanted. (Pls.' Mot. 4.) On September 30, 2010, Plaintiffs made one final request for a supplemental questionnaire, which Commerce refused. ( Id. at 5; Def.'s App'x Ex. R.)

Plaintiffs now also move the Court to compel supplementation of the administrative record to include certain factual information not previously presented to Commerce (Mot. to Supp. Admin. R. (“Mot. to Supp.”), ECF No. 73), a motion which Commerce opposes (Resp. in Opp. to Pls.' Mot. to Supp. Admin. R., ECF No. 76).

Jurisdiction/Standard of Review

The Court has jurisdiction over this case pursuant to 28 U.S.C. § 1581(c), and 19 U.S.C. § 1516a(1), (2)(B)(iii). In reviewing Commerce's final determination in a new shipper review, the Court is required to “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).

Analysis

While Plaintiffs dispute Commerce's conclusion that their sales were not bona fide (Pls.' Mot. 19–47), and ultimately seek reversal of Commerce's decision to rescind the new shipper reviews ( id. 48), the threshold issues presented in this case are whether it was proper for Commerce (1) to reject certain factual submissions Plaintiffs made during the administrative proceeding ( id. 12–17), and (2) to decline to issue supplemental questionnaires at Plaintiffs' behest ( id. 9–10). Because the Court finds that Commerce had no lawful basis for rejecting one of Plaintiffs' factual submissions, the Final Determination was based on an incomplete record. Accordingly, until this error has been corrected on remand, the Court will not decide the ultimate question of whether Commerce's decision to rescind the new shipper reviews is supported by substantial evidence on the record and otherwise in accordance with law.

Regulations issued by Commerce specify time limits within which factual information may be placed on the record in various proceedings before the agency. 19 C.F.R. § 351.301. Generally, in the case of a new shipper review, “a submission of factual information is due no later than ... 100 days after the date of publication of notice of initiation of the review,” which in this case would have been May 15, 2010. Id. § 351.301(b)(4). This regulation also specifies time limits for interested parties to “submit factual information to rebut, clarify, or correct factual information submitted by any other interested party[,]” and sets the time limit for such rebuttals at 10 days. Id. § 351.301(c)(1) (emphasis added). This particular subpart is the one Commerce cited in rejecting both Plaintiffs' September 18 and September 22 submissions.

Plaintiffs' September 18 submission was offered to rebut factual information submitted by an interested party (namely, Petitioners), so 19 C.F.R. § 351.301(c)(1) governed the time within which that submission had to be made. Because the September 18 submission was filed more than 10 days after the factual information it sought to rebut, Commerce's rejection of this submission was lawful under this regulation.

Plaintiffs' September 22 submission, however, is different. This was not a submission offered to rebut factual information submitted by an interested party; rather, it was an effort to rebut the CBP Data, which had been placed on the record by Commerce. Because Commerce is not an interested party within the meaning of the antidumping statute or regulations ², 19 C.F.R. § 351.301(c)(1) cannot limit the time for responding to a factual submission made by Commerce. Accordingly, although Plaintiffs' September 22 submission was made more than 10 days after the CBP Data were placed on the record, 19 C.F.R. § 351.301(c)(1) does not provide Commerce with a legal basis for rejecting Plaintiffs' September 22 submission.

Defendant advances several arguments to justify its rejection Plaintiffs' September 22 submission, all of which the Court finds unpersuasive.³ First, while conceding that the first sentence of 19 C.F.R. § 351.301(c)(1) authorizes rebuttal of factual information submitted by an interested party, Defendant argues that both the subsection's title and its second sentence refer to rebuttal of “any factual information placed on the record,” without regard to who placed it there. (Def.'s Resp. in Opp. to Pls.' Mot. for J. Upon the Agency R. (“Def.'s Resp.”) 17–18.) Thus, the 10–day time limit, found in the second sentence, would apply to Plaintiffs' response to the CBP data. Defendant would have the Court accord “substantial deference” to this interpretation of Commerce's regulation. ( Id. at 18 ( citing Cathedral Candle Co. v. U.S. Int'l Trade Comm'n, 400 F.3d 1352, 1363–64 (Fed.Cir.2005)).) Second, Defendant argues that if 19 C.F.R. § 351.301(c)(1) does not apply to information placed on the record by Commerce, “there would be no regulation that would allow an interested party to respond to factual information placed on the record by Commerce.” ( Id. at 19.) Defendant claims that this court has rejected that view, and held that 19 C.F.R. § 351.301(c)(1) permits interested parties to respond to data placed on the record by the agency. ( Id. ( citing Crawfish Processors Alliance v. United States, 28 CIT 646, ––––, 343 F.Supp.2d 1242, 1261 (2004)).) Third, citing the agency's interest in finalizing the record, Defendant insists that there is no rationale for permitting a response time of any longer than 10 days to rebut information placed on the record by a non-interested party. ( Id. at 18–19.) Additionally, Defendant contends that Plai...