Hebei Golden Bird Trading Co., Ltd. v. United States
2017 CIT 86
| Ct. Intl. Trade | 2017Background
- This case concerns Commerce’s remand redetermination in the 19th administrative review of the antidumping order on fresh garlic from the PRC, focused on whether Hebei Golden Bird Trading Co., Ltd. (Golden Bird) is eligible for a separate rate.
- In the Final Results Commerce applied the PRC-wide rate to Golden Bird as total adverse facts available (AFA) because Golden Bird failed to provide requested export declarations and phytosanitary certificates, impugning its reported export volumes. The court previously sustained the total AFA determination but remanded the separate-rate determination, finding Commerce could not rely solely on a finding of “unreliable sales data.”
- On remand Commerce reopened the record to consider new evidence submitted in the 21st review: a Harmoni submission alleging an extensive export‑funneling fraud by Golden Bird and a sworn declaration from a U.S. distributor. Commerce also relied on discrepant GACC (Chinese customs) export data versus U.S. Customs import data already on the record.
- Commerce corroborated parts of the Harmoni allegation (shipment details) with Customs data and found large discrepancies indicating funneling of exports by entities subject to the PRC‑wide rate into entries at lower or zero rates, concluding Golden Bird engaged in fraud and that a majority of its purported exports were actually controlled by PRC‑wide entities.
- Golden Bird argued Commerce improperly considered evidence from another review, relied on unreliable/hearsay evidence, violated due process by double‑bracketing declarant identity under the APO and denying adequate opportunity to respond, and sought remand or exclusion of the Harmoni materials.
- The Court held Commerce lawfully reopened the record, reasonably corroborated the Harmoni allegations, permissibly protected the declarant’s identity under the APO, and sustained Commerce’s finding that Golden Bird is ineligible for a separate rate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May Commerce consider allegations and evidence placed on the record in a different administrative review when reopening the original review? | Golden Bird: improper to rely on materials from the 21st review it was not party to. | Commerce: has authority to reopen and may place factual information on the record; relevant when after‑discovered fraud is alleged. | Held: Commerce acted within discretion to consider the Harmoni materials and reopen the record to protect proceeding integrity. |
| Was Commerce’s finding of fraud/funneling supported by substantial evidence? | Golden Bird: Harmoni evidence is unreliable, biased, and largely hearsay; discrepancies insufficient. | Commerce: corroborated key shipment details with Customs and relied on unrebutted GACC/Customs data showing large discrepancies and estimated evaded deposits. | Held: Substantial evidence supports Commerce’s fraud/funneling finding and conclusion that Golden Bird’s submissions were incomplete and unreliable. |
| Did Commerce’s withholding (double‑bracketing) of the declarant’s identity and limited disclosure violate Golden Bird’s procedural due process or statutory right to rebut? | Golden Bird: denial of identifying info prevented meaningful response and violated due process. | Commerce: double‑bracketing permissible under statute and APO where there is clear and compelling need; substantial reasons (safety, extortion claims) justified protection; enough releasable substance existed to respond. | Held: Withholding identity was reasonable; Golden Bird had adequate substance to respond and no due process violation. |
| Was denial of a separate rate to Golden Bird arbitrary because court remand limited reliance on “unreliable sales data”? | Golden Bird: remand precluded using unreliability of sales data as sole basis to deny separate rate. | Commerce: made an explicit fraud finding corroborated by record evidence and relied on pervasive misrepresentations and funneling to deny separate‑rate status. | Held: Commerce complied with remand, made explicit fraud finding supported by record, and reasonably denied separate rate. |
Key Cases Cited
- Tokyo Kikai Seisakusho, Ltd. v. United States, 529 F.3d 1352 (Fed. Cir. 2008) (Commerce authority to reopen proceedings to protect integrity, esp. when fraud alleged)
- NEC Corp. v. United States, 151 F.3d 1361 (Fed. Cir. 1998) (procedural due process in foreign commerce importers’ disputes)
- Murakami v. United States, 398 F.3d 1342 (Fed. Cir. 2005) (importance of Commerce’s power to reconsider to protect proceedings)
- Allied Tube & Conduit Corp. v. United States, 898 F.2d 780 (Fed. Cir. 1990) (standard for withholding proprietary information under APO — clear and compelling need)
- Ad Hoc Shrimp Trade Action Comm. v. United States, 882 F. Supp. 2d 1377 (CIT 2013) (reopening/considering post‑decision allegations where fraud/new info raises questions)
- US Magnesium LLC v. United States, 895 F. Supp. 2d 1319 (CIT 2012) (supporting Commerce reconsideration to protect integrity)
- Max Fortune Indus. Ltd. v. United States, 853 F. Supp. 2d 1258 (CIT 2012) (upholding double‑bracketing to protect declarant safety and methods)