Xiping Opeck Food Co. v. United States, 36 I.T.R.D. (BNA) 1371

Background

Xiping, a Chinese exporter of freshwater crawfish tail meat, was the sole mandatory respondent in the 2009–2010 antidumping administrative review; Commerce preliminarily found a zero percent margin but later issued final results assigning Xiping a 70.12% margin based on adverse facts available (AFA).
The Crawfish Processors Alliance alleged “middleman dumping,” asserting Xiping sold to GB Imports & Exports (GBIE), GBIE sold to a foreign entity (“Company A”), and Company A resold in the U.S. at prices below acquisition cost.
Commerce investigated the transaction chain, sent nonmarket-economy questionnaires to Xiping, GBIE, and Company A; Xiping and GBIE responded, Company A refused, claiming its transactions occurred inside the U.S. and thus it was not an interested party.
Commerce concluded Company A was an interested party/exporter, found Company A impeded the review by not cooperating, and applied AFA to construct (a) a U.S. price based on wholesalers’ offer prices (selecting the lowest averages as an adverse inference) and (b) a normal value based on GBIE’s invoices to Company A (selecting the highest acquisition cost as an adverse inference), yielding a 70.12% margin for Xiping.
The court remanded, concluding Commerce failed to adequately explain (and support with substantial evidence) key legal and factual bases for: (1) treating Company A as an "exporter"/interested party despite taking title after importation; (2) applying AFA to a cooperating respondent (Xiping) based on a third party’s noncooperation; and (3) abandoning statutory factors-of-production methodology for normal value in favor of AFA-derived acquisition costs.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Company A qualifies as an "exporter"/interested party under 19 U.S.C. §1677(9)(A)	Company A is not an exporter because it took title after the goods entered the U.S.; statute’s ordinary meaning of exporter requires cross‑border shipment	Commerce: Company A was a foreign "price discriminator" who effectively set U.S. prices and thus functioned as an exporter for antidumping purposes	Court: Commerce has not adequately justified its expansion of "exporter" to include Company A; remand required for legal explanation and evidentiary support
Whether Commerce permissibly applied AFA to Xiping (a cooperating respondent) based on Company A’s noncooperation	Xiping fully cooperated; AFA may not be applied to a cooperating party when noncooperator suffers no penalty and cooperating party lacked control to induce cooperation	Commerce: Company A’s noncooperation prevented determination of U.S. pricing; Xiping knew or should have known of downstream dumping so AFA against Xiping was warranted	Court: Application of AFA to Xiping lacks sufficient legal explanation and factual support; Commerce must address line of cases (Mueller, Changzhou, etc.) and explain inducement/evasion rationale on remand
Whether Commerce lawfully used Company A/GBIE prices (with AFA selections) instead of Xiping’s factors‑of‑production to compute normal value and U.S. price	Xiping: normal value should be based on reported factors of production per statute for NME countries; Commerce improperly ignored cooperating respondent’s data	Commerce: transactions were atypical/back‑to‑back and sales were not bona fide commercial sales, so record prices were unreliable; used AFA-derived figures	Court: Commerce failed to explain why it abandoned the statutory factors‑of‑production method and why AFA was appropriate for normal value; remand required to justify or reinstate FOP approach
Whether remand relief and further fact‑finding are required	Xiping sought calculation based on reported data and remand	Government defended final results	Held: Court remanded; Commerce must explain statutory construction, supply substantial evidence for factual findings (e.g., timing of agreements, exporter status), and may reopen record if necessary; remand schedule set

Key Cases Cited

Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (agency statutory‑construction framework/Chevron deference)
United States v. Mead Corp., 533 U.S. 218 (administrative interpretations and deference)
Mueller Comercial de Mexico, S. de R.L. de C.V. v. United States, 753 F.3d 1227 (Fed. Cir.) (AFA may have collateral effects on cooperating respondent where inducement possible)
Changzhou Wujin Fine Chem. Factory Co. v. United States, 701 F.3d 1367 (Fed. Cir.) (invalidating AFA‑derived rate applied only to cooperating respondents where noncooperator unaffected)
Parkdale Int’l v. United States, 475 F.3d 1375 (Fed. Cir.) (Commerce’s objective is accurate margin calculation)
NMB Sing. Ltd. v. United States, 557 F.3d 1316 (Fed. Cir.) (agency must explain basis for determinations)