Plaintiff Shenzhen Xinboda Industrial Co., Ltd. ("Plaintiff" or "Xinboda") initiated this action
On March 9, 2018, Commerce filed its Remand Results.
Xinboda filed comments opposing the Remand Results. See Pl. Shenzhen Xinboda Industrial Co., Ltd. Comments in Opp'n to U.S. Dep't of Commerce's Remand Redetermination ("Xinboda's Remand Opp'n"), ECF No. 84.
For the reasons discussed herein, Commerce's selection of Romania as the primary surrogate country and selection of Romanian pricing data as the surrogate value for raw garlic are sustained. However, the court remands for further consideration Commerce's addition of transportation costs to the surrogate value for raw garlic and calculation of Xinboda's brokerage and handling and inland freight expenses.
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction pursuant to § 516A(a)(2)(B)(iii) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2012),
DISCUSSION
I. Surrogate Country Selection
An antidumping duty is "the amount by which the normal value exceeds the export price (or the constructed export price) for the merchandise."
Commerce generally values all factors of production in a single surrogate country.
(1) the Office of Policy ("OP") assembles a list of potential surrogate countries that are at a comparable level of economic development to the [non-market economy] country; (2) Commerce identifies countries from the list with producers of comparable merchandise; (3) Commerce determines whether any of the countries which produce comparable merchandise are significant producers of that comparable merchandise; and (4) if more than one country satisfies steps (1)-(3), Commerce will select the country with the best factors data.
Jiaxing Brother Fastener Co., Ltd. v. United States ,
On remand, Commerce reopened the administrative record, invited Xinboda
To determine the best source of factors data, Commerce considers the degree to which the data is publicly available, contemporaneous with the period of review, tax and duty exclusive, representative of a broad-market average, and product-specific. Id. at 11-12; see also
A careful review of the Remand Results indicates that Commerce's selection of Romania over Mexico was a close call. Publicly available data was available from both countries. See Remand Results at 12, 15, 30. Although roughly contemporaneous data was available from Mexico, Commerce considered the monthly data from Romania to be more contemporaneous than the annual data from Mexico, which would be impacted by months outside the period of review. Id. at 17. Data from both countries was also considered tax and duty exclusive. See id. at 12-13, 15, 27. Commerce expressly found that Romanian data represented a broad market average but made no such finding with respect to Mexico. See id. at 30. Commerce drew distinctions, however, regarding the specificity of the Romanian and Mexican data to the size and price of the raw garlic input.
As to size, Commerce found that the record lacked substantial evidence to conclude that "Mexic[an] garlic bulbs are identical or more comparable to" Chinese garlic bulbs. Id. at 30. Commerce explained that most of Xinboda's evidence on Mexican garlic was "completely unintelligible," and the intelligible articles, or parts thereof, failed to support Xinboda's arguments regarding the comparability of Mexican garlic to Chinese garlic. Id. at 21-22.
As to price, Commerce first considered whether Mexican or Romanian data reflected the level of trade at which Xinboda's processor, Excelink, purchased raw garlic. See id. at 26-27. Reiterating its finding in the underlying review that Excelink did not pay "farmgate" prices, Commerce found that Excelink's prices included costs for processing the garlic,
In view of these distinctions, Commerce selected Romania as the primary surrogate country, id. at 31, and used pricing data reported by the National Institute of Statistics Romania ("NISR") to value Xinboda's raw garlic, I & D Mem. at 13; Remand Results at 26-27. Xinboda challenges Commerce's determination that Romania offered the best available information on the record, focusing on Commerce's findings regarding size, purchasing experience, and distortion in Romanian prices. See generally Xinboda's Remand Opp'n.
From the outset, Xinboda misstates and misapplies the court's inquiry. Xinboda insists that substantial evidence supports the use of Mexican data. See Xinboda's Remand Opp'n at 1-18, 21-29, 31-32. The court's inquiry, however, is whether substantial evidence supports Commerce's use of Romanian data; if so, such use will not be precluded even if substantial evidence also supports the use of Mexican data. See 19 U.S.C. § 1516a(b)(1)(B)(i) ; Matsushita Elec. Indus. Co. v. United States ,
A. The Comparability of Mexican Garlic to Chinese Garlic
Xinboda first contends that Commerce unreasonably accorded more weight to Petitioners' articles discussing Romanian garlic than it did to Xinboda's articles discussing Mexican garlic; the record contained more information establishing the size of Mexican garlic bulbs than it did establishing the size of Romanian garlic bulbs; and Commerce should have informed Xinboda that certain articles it previously accepted were unintelligible or insufficiently translated. Xinboda's Remand Opp'n at 1-4. Defendant and Defendant-Intervenors contend that Commerce relied on the Romanian articles because Xinboda's articles were unintelligible, insufficiently translated, or otherwise failed to establish that Mexican garlic bulbs are more comparable to Chinese garlic bulbs. Def.'s Remand Reply at 10-11; Def.-Ints.' Remand Reply at 7.
As noted, the burden of creating an adequate record before Commerce lies with interested parties. See QVD Food Co. ,
The deficient translations notwithstanding, Commerce addressed Xinboda's core arguments regarding the comparability of Mexican garlic to the subject merchandise. See Remand Results at 18 (referencing Xinboda's arguments regarding the relationship between Mexican commercial garlic classifications and bulb size);
Commerce further explained that information regarding commercial classifications for garlic contained in Garlic Productivity and Profitability referred solely to the Tacatzcaro variety, and the record lacked evidence suggesting that Tacatzcaro garlic was sold in Mexico during the period of review or was "the main type of garlic produced and sold in Mexico." Remand Results at 22 & n.105 (citing Xinboda's Remand Rebuttal, Ex. 3, ECF p. 289). Xinboda asserts that the class numbers, commercial classifications, and bulb diameters nevertheless reflect Mexican garlic standards generally and "show that the majority of garlic grown and traded commercially
In contrast to Xinboda's evidence purporting to establish the size of Mexican garlic, the information Commerce relied upon to substantiate the size of Romanian garlic is legible and fully translated. See
Xinboda's reliance on 19 U.S.C. § 1677m(d) also fails. Section 1677m(d) states the procedures Commerce must undertake in connection with deficient "response[s] to a request for information." 19 U.S.C. § 1677m(d).
Xinboda next contends that Mexico's exports of fresh garlic to the United States speaks to Mexico's production of large bulb garlic and cites several pieces of evidence in support thereof. Xinboda's Remand Opp'n at 13-15. The Government dismisses this argument, as Commerce did, on the basis that production levels and export amounts are relevant to the significant producer analysis and, even then, the significance of production is not judged against China's production levels. Def.'s Remand Reply at 14; Remand Results at 23. Defendant-Intervenors contend that the size of exported garlic bulbs "is not representative of the size of bulbs that are typically grown and harvested in Mexico." Def.-Ints.' Remand Reply at 9.
It is Commerce's province to weigh the evidence in the first instance, not the court's. See POSCO v. United States , 42 CIT ----, ----,
Xinboda first points to an excerpted portion of a table contained in an article titled "Garlic Production [Chain]." Xinboda's Remand Opp'n at 13 (citing Xinboda's Remand Rebuttal, Ex. 3, ECF p. 436 (Table 19) ); see also Xinboda's Remand Rebuttal, Ex. 3, ECF pp. 418-50 (Manuel E. Well Spinosa et al., Foundation Produces [sic ] Querétaro, Garlic Production Chain) ("Garlic Production Chain "). Although the table itself is legible, Garlic Production Chain as a whole is replete with mistranslations and other errors, see Xinboda's Remand Rebuttal, Ex. 3, ECF pp. 418-50. Table 19 lists the sizes of Mexican garlic exported to the United States and Canada from 1999 to 2002, predating the period of review by roughly 11 years. See Xinboda's Remand Rebuttal, Ex. 3, ECF p.436; Final Results ,
Xinboda's subsequent argument that Mexico is the largest supplier of garlic to the United States after China is unsupported by the cited evidence. See Xinboda's Remand Opp'n at 15 (citing Xinboda's SC Comments, Ex. 2). Xinboda's argument regarding Mexico's supply of fresh garlic to the United States "when the Chinese and domestic crop is out of season" is inapposite to the inquiry into Mexican garlic production generally for purposes of assessing the quality of Mexican surrogate value data.
Commerce, for its part, noted Petitioners' arguments but did not rely on them. See Remand Results at 15. Xinboda's reliance on certain record evidence to draw connections between Chinese and Mexican garlic growing climates nevertheless fails to undermine Commerce's determination. See Nippon Steel ,
Xinboda's arguments regarding the comparability of Mexican garlic to the subject merchandise do not undermine Commerce's reliance on Romanian data because Commerce addressed these arguments to the extent that they were relevant and supported by legible record evidence, and Xinboda's arguments do not detract from the substantial evidence concerning Romanian garlic size on which Commerce relied.
B. The Comparability of Romanian Garlic to Chinese Garlic
Xinboda challenges Commerce's reliance on the weight of Romanian garlic as set forth in Growing Vegetables to draw conclusions about the Romanian garlic size. See Xinboda's Remand Opp'n at 18. Xinboda contends that Commerce impermissibly relied on a 2012 online advertisement from a Chinese exporter to establish a weight-to-size ratio because the advertisement is outdated and "from a little known exporter." Id. at 19. Xinboda further contends that Growing Vegetables relies on 1998 data and fails to establish country-wide production of large bulb garlic. See id. at 20. Xinboda also contends that Romanian yield size suggests that Romanian garlic is generally not large bulb. Id. at 20.
Defendant contends that Commerce's choice between "two imperfect options"-poorly translated or illegible Mexican data and a "single, dated article" requiring a "straightforward inference with respect to a correlated ratio"-is left to the agency's discretion. Def.'s Remand Reply at 10 (citation omitted). Defendant-Intervenors contend that the "conversion of bulb weights ... to diameters required only a simple calculation," and Xinboda points to no evidence contradicting Commerce's conversion. Def.-Ints.' Remand Reply at 10-11.
The Growing Vegetables article upon which Commerce relied to substantiate the size of Romanian garlic contains a table listing the types of garlic cultivated in Romania. See Remand Results at 30 & n.126 (citing I & D Mem. at 10); I & D Mem. at 10 & n.52 (citing Pet'rs' Rebuttal SC Comments at 10); Pet'rs' Rebuttal SC Comments at 10 (citing Pet'rs' Rebuttal SC Comments, Attach. ROM-1). In the spring, those varieties are medium-sized and weigh 20 to 30 grams. See Pet'rs' Rebuttal SC Comments, Attach. ROM-1, ECF p. 118. In the fall, Romanian garlic
To convert weight to size, Commerce used an advertisement from an online marketplace regarding the sale of a 250-gram bag of fresh garlic consisting of four bulbs with 60-centimeter ("cm") diameters. See Remand Results at 23-24; Pet'rs' Rebuttal SC Comments, Attach. PRC-1, ECF p. 153. As Commerce explained, the advertisement can "be used to calculate a general weight ratio[:] ... 250 grams/4 bulbs = 62.5 grams per bulb," Remand Results at 24; i.e., about one gram per centimeter of the diameter. Absent alternative information on the record, the advertisement was the best available for Commerce to use and Xinboda points to nothing to suggest the conversion is unreasonable.
Xinboda's arguments regarding Romanian garlic size and yield size also fail. Chinese garlic ranges in size from about 1 ½ to 2 ½ inches in diameter, See Decision Mem. for the Prelim. Results of the 2013-2014 Antidumping Duty Admin. Review at 22 & nn.137-38 (citations omitted), PR 398, CJA Tab 51, PJA Tab 51, the equivalent of about 3.81cm to 6.35cm in diameter. Applying the weight to size ratio of one gram per centimeter of diameter shows that two of the fall garlic varieties are within the size range of the subject merchandise. See Pet'rs' Rebuttal SC Comments, Attach. ROM-1, ECF p. 118. As to yield, record evidence demonstrates that Romanian garlic output can range from 5-6 metric tons ("MT") per hectare to 10-12 MT per hectare, indicating the potential for Romanian garlic to be weighted to the larger varieties in the Growing Vegetables table. See id. , Attach. ROM-1, ECF p. 120. In sum, Commerce found evidence of large bulb garlic production in Romania, and the record supports that finding.
C. Level of Trade
Xinboda contends that Commerce erred in relying on Romanian wholesale prices to value its garlic because Xinboda purchases garlic on a farmgate basis, and the Mexican pricing data consists of what Xinboda considers to be farmgate prices. See Xinboda's Remand Opp'n at 21-29. Xinboda further contends that Commerce's selection of a wholesale price is inconsistent with the agency's practice in prior administrative reviews. Id. at 24. Defendant and Defendant-Intervenors contend that this record supports Commerce's determination that Xinboda's garlic price contains post-harvesting charges that are not indicative of farmgate prices. Def.'s Remand Reply at 16-18; Def.-Ints.' Remand Reply at 12-15.
Commerce defined the term "farmgate" as "the purchase price of raw garlic as it is harvested with no further processing or handling, and including no additional charges .... [I]t is garlic, immediately following harvest, that has not been sorted, cleaned, processed, stored, transported or in any other way handled or modified." Remand Results at 26 & n.115 (citation omitted). Commerce examined the input for which it was seeking a surrogate value and determined that Xinboda's processor, Excelink, was not making farmgate purchases as Commerce defined the term. See id. at 26-27 & nn.118-19 (discussing evidence of post-harvest processing, rented cold-storage, and transportation) (citing Suppl. Questionnaire Resp.-Shenzen Xinboda (Sept. 1, 2015) at 4, CR 137-45, PR 304-05, PRJA Tab 7, Suppl. CRJA Tab 4, Suppl. PRJA Tab 4; Second Suppl. Questionnaire Resp.-Shenzhen Xinboda (Nov. 3, 2015) at 3-5, CR 163, PR 365, PRJA Tab 8, Suppl. CRJA Tab 5, Suppl. PRJA Tab 5). Taking this evidence into consideration along with Commerce's use of the intermediate
To support the assertion that Excelink purchased garlic on a farmgate basis, Xinboda relies on a different understanding of the term that allows for the inclusion of some processing or storage costs. See Xinboda's Remand Opp'n at 27 (citations omitted). Commerce's definition, however, is reasonable and consistent with the definition Commerce used in prior administrative reviews. See Issues and Decision Mem. for the Final Results and Rescission, in Part, of the Antidumping Duty Admin. Review of Fresh Garlic from the People's Republic of China, A-570-831 (June 10, 2013) ("AR 17 Decision Mem.") at 14 n.56, available at https://enforcement.trade.gov/frn/summary/prc/2013-14329-1.pdf (last visited Dec. 18, 2018); Issues and Decision Mem. for Fresh Garlic from the People's Republic of China: Final Results of the 2009-2010 Admin. Review, A-570-831 (June 4, 2012) ("AR 16 Decision Mem.") at 19-20, available at https://enforcement.trade.gov/frn/summary/prc/2012-14152-1.pdf (last visited Dec. 18, 2018).
Specifically, Xinboda points to Commerce's successful defense of its selection of farmgate prices in the 17th administrate review as "the law of the case" requiring Commerce to use farmgate prices in this review. Xinboda's Remand Opp'n at 25. However, the law of the case doctrine applies to issues that have previously been resolved. See Intergraph Corp. v. Intel Corp. ,
There is one aspect of Commerce's determination, however, that requires further consideration by the agency. In the underlying proceeding, Commerce added transportation costs to the Romanian wholesale prices to account for delivery of the raw garlic "from the farmer or storage facility to Excelink." See I & D Mem. at 29 & n.174 (citation omitted). Information placed on the record of the remand proceeding suggests that NISR prices "likely include any transportation costs , storage costs, processing or packaging costs, and a profit mark-up." Xinboda Remand Rebuttal, Ex. 4, ECF p. 523 (emphasis added). Thus, while the court sustains Commerce's determination that Romanian prices are more comparable to Excelink's purchasing experience, a remand is required for Commerce to clarify its justification for adding transportation costs to the wholesale prices.
D. Distortion in the Romanian Garlic Market
Xinboda contends that a garlic tariff quota imposed on Chinese garlic imported into Romania after Romania joined the EU in 2007 has distorted Romanian garlic prices. Xinboda's Remand Opp'n at 29-30. Defendant and Defendant-Intervenors contend that Commerce correctly declined to infer that the price increases after Romania joined the EU in 2007 resulted either from a tariff quota (as Xinboda had asserted) or from "the removal of unfairly traded garlic imports" (as Petitioners had asserted). Def.'s Remand Reply at 18-19; Def.-Ints.' Remand Reply at 15-16.
On this issue, Commerce explained that the record failed to demonstrate that EU-imposed tariff quotas distorted or otherwise increased Romanian garlic prices. I & D Mem. at 14; see also Remand Results at 29 & n.124 (citing I & D Mem. at 11-14). According to Commerce, at most, Xinboda had demonstrated "a temporal correlation" between Romania's accession to the EU and increased prices, not causation. I & D Mem. at 14. Commerce faulted Xinboda for "presum[ing] that such a relationship exist[ed]" absent evidence "quantifying such a relationship."
Before the court, Xinboda surmises that "[t]he tariff quota is the only reasonable explanation for the sustained price increase." Xinboda's Remand Opp'n at 30. Upon review of the entirety of the record, substantial evidence supports Commerce's decision not to infer the existence of such a relationship. See Nippon Steel ,
As of April 1, 2007, the EU imposed tariff quotas on imports of fresh garlic from China, Argentina, and other third countries. See Rebuttal Final Surrogate Value Submission (Nov. 12, 2015), Ex. SV-2, ECF pp. 419, 426, PR 371, CJA Tab 42, PJA Tab 42. Pursuant thereto, the first 33,700 MT of garlic imported into the EU from China was subject only to a 9.6 percent ad valorem duty; thereafter, any additional garlic was subject to the 9.6 percent ad valorem duty plus an additional duty of 1,200 Euros per MT. See
In light of record evidence indicating that most, if not all, of the fresh garlic imported into the EU was not subject to the additional duty of 1,200 Euros, substantial evidence supports Commerce's decision not to infer a causal relationship between EU-imposed tariff quotas and increased Romanian garlic prices. See Remand Results at 29; I & D Mem. at 14.
In sum, Commerce's determination that Romanian data better fulfilled the contemporaneity and product-specificity criteria of its factors data analysis is supported by substantial evidence. Accordingly, notwithstanding the need to address the addition of transportation costs to Romanian pricing date, Commerce's selection of Romania as the primary surrogate country is sustained.
II. Movement Expenses
For the Final Results , Commerce relied on information contained in the World Bank's Doing Business 2015: Romania ("Doing Business Romania ") report to calculate a surrogate value for brokerage and handling and inland truck freight pursuant to 19 U.S.C. § 1677a(c)(2)(A). I & D Mem. at 30-31; see also Pet'rs' Surrogate Value Comments (June 17, 2015) ("Pet'rs' SV Comments"), Ex. 6, PR 275-80, CJA Tab 26, PJA Tab 26 (copy of the report). Specifically, Commerce "calculated a per kilogram brokerage and handling and inland freight [cost] using the price data to export standardized cargo of ten metric tons in a standard 20-foot container as published in Doing Business Romania ." I & D Mem. at 31. In other words, Commerce used the costs reported in Doing Business Romania as the numerator in the equation with a payload weight of 10,000kg (ten MT) as the denominator. See Surrogate Values for the Prelim. Results (Nov. 30, 2015) ("Prelim. SV Mem."), Exs. 8, 9, PR 401-02, CJA Tab 53, PJA Tab 53. The calculation of inland freight required additional inquiry into the distance traveled (i.e., cost of inland transportation and handling per kilogram per kilometer). See
Xinboda challenges Commerce's use of the 10,000kg denominator. See Xinboda's 56.2 Br. at 32-35. Though apparently accepting the 10,000kg denominator weight as an assumption of the report, Xinboda contends that "does not infer that the ... weight of the container is the basis of the cost." Id. at 32. According to Xinboda, record evidence demonstrates that brokerage and handling fees "are based on an entire container and not the weight of its contents." Id. at 33. Xinboda contends that Commerce should, therefore, replace the 10,000kg denominator with "the maximum weight of a container or the average weight of Xinboda's containers." Id. at 35; see also Pl. Shenzhen Xinboda Indus. Co., Ltd. Reply Br. ("Xinboda's 56.2 Reply") at 18-20, ECF No. 53.
Defendant contends that Commerce's calculations are correct because Doing Business Romania provides data relevant to a "standard shipment of goods," which is "a dry-cargo, 20-foot-full container load"
Before addressing Xinboda's arguments for alternative denominators, the court must begin by assessing whether Commerce's decision to apply a 10,000kg denominator is supported by substantial evidence and in accordance with law. It is not.
In the Issues and Decision Memorandum, Commerce quoted extensively from its determination in Certain Nails from the People's Republic of China as support for its use of the 10,000kg denominator. I & D Mem. at 31 & n.187 (quoting Certain Nails from the People's Republic of China ,
Here, however, the Doing Business Romania report Commerce relied upon merely assumes the presence of "a dry-cargo, 20-foot-full container load," Pet'rs' SV Comments, Ex. 6 at 69 (emphasis added); it does not provide any assumption regarding the container's weight, see
Shipping information supplied by Xinboda suggests that weight or volume is taken into consideration only when shipping less than full container loads. See Prelim. Surrogate Values Submission (June 17, 2015), Ex. SV-21, ECF pp.60, 70-72, PR 281-85, CJA Tab 27, PJA Tab 27 (international freight forwarders offering rates based solely on the size of the container irrespective of weight);
CONCLUSION & ORDER
In accordance with the foregoing, it is hereby
ORDERED that Commerce's Remand Results are sustained with respect to Commerce's selection of Romania as the primary surrogate country and selection of Romanian pricing data as the surrogate value for raw garlic, as set forth in Discussion Section I; and it is further
ORDERED that Commerce's Remand Results are remanded with respect to Commerce's addition of transportation costs to the surrogate value for raw garlic, as set forth in Discussion Section I.C; and it is further
ORDERED that Commerce's Final Results are remanded with respect to Commerce's calculation of Xinboda's movement expenses as set forth in Discussion Section II; and it is further
ORDERED that, in the event Commerce amends the antidumping margin assigned to Xinboda, Commerce reconsider the separate rate assigned to non-mandatory respondents; and it is further
ORDERED that Commerce shall file its remand results on or before April 2, 2019; and it is further
ORDERED that any opposition or supportive comments must not exceed 5,000 words.
Notes
This action represents three consolidated challenges. See Order (Sept. 15, 2016), ECF No. 33 (consolidating Court Nos. 16-00114, 16-00116, and 16-00125 into lead Court No. 16-00116).
The period of review is November 1, 2013, through October 31, 2014. Final Results ,
The administrative record filed in connection with the Final Results is divided into a Public Administrative Record ("PR"), ECF No. 30-1, and a Confidential Administrative Record ("CR"), ECF No. 30-2. Parties submitted joint appendices containing record documents cited in their Rule 56.2 briefs. See Public J.A. ("PJA"), ECF Nos. 55 (Tabs 1-26), 55-1 (Tabs 27-57); Confidential J.A. ("CJA"), ECF Nos. 54 (Tabs 1-26), 54-1 (Tabs 27-57). The administrative record associated with the Remand Results is contained in a Public Remand Record ("RR"), ECF No. 72-1. Plaintiff submitted joint appendices containing record documents cited in Parties' Remand briefs. See Public J.A. to Remand Proceeding ("PRJA"), ECF No. 79; Confidential Suppl. J.A. ("Suppl. CRJA"), ECF No. 85; Public Suppl. J.A. ("Suppl. PRJA"), ECF No. 86.
Consolidated Plaintiffs Shenzhen Yuting Foodstuff Co., Ltd. and Shenzhen Bainong Co., Ltd., and Plaintiff-Intervenors Jinxiang Hejia Co., Ltd., Jinxiang Feiteng Import & Export Co., Ltd. joined Xinboda's Rule 56.2 arguments. See Mem. of Law in Supp. of Co-Plaintiffs' Mots. for J. Upon the Agency R. ("Consol. Pl.'s 56.2 Br.") at 9, ECF No. 40. Consolidated Plaintiff Qingdao Tiantaixing Foods Co., Ltd. ("QTF") filed a separate motion. See Confidential Mot. of Pl. Qingdao Tiantaixing Foods Co., Ltd. for J. on the Agency R., ECF No. 37. Because Xinboda sustained Commerce's determination vis-à-vis Consolidated Plaintiff QTF,
Thereafter, on August 9, 2018, the action was assigned to this judge. Order of Reassignment, ECF No. 80.
By making the determination under protest, Commerce preserves its right to appeal. See Meridian Prods. v. United States ,
Plaintiff-Intervenors joined Xinboda's comments in opposition. See Pl.-Ints. Jinxiang Hejia Co., Ltd., and Jinxiang Feiteng Imp. & Exp. Co., Ltd. Comments in Opp'n to U.S. Department of Commerce's Remand Redetermination, ECF No. 74.
Defendant-Intervenors include the Fresh Garlic Producers Association ("FGPA") and its individual members: Christopher Ranch, L.L.C., The Garlic Company, Valley Garlic, and Vessey and Company, Inc. See Consent Mot. to Intervene as of Right at 1, ECF No. 22. FGPA is a trade association whose members-the afore-mentioned companies-are domestic producers of the domestic like product. Id. at 2. Defendant-Intervenors were Petitioners in the underlying proceeding. See I & D Mem. at 2.
All further citations to the Tariff Act of 1930, as amended, are to Title 19 of the U.S. Code, and all references to the U.S. Code are to the 2012 edition, unless otherwise stated.
The factors of production include, but are not limited to: "(A) hours of labor required, (B) quantities of raw materials employed, (C) amounts of energy and other utilities consumed, and (D) representative capital cost, including depreciation." 19 U.S.C. § 1677b(c)(3).
See
These findings are unchallenged.
Commerce did not make affirmative findings regarding the size of Mexican garlic relative to Chinese garlic; rather, Commerce emphasized Xinboda's failure to build a record from which it could make the findings urged by Xinboda. See Remand Results at 21-22, 30.
Excelink's suppliers processed the garlic by "drying [it], cutting the root balls, cutting the stems, removing the dirt, bagging, and storing the garlic."
Xinboda attributes its failure to properly translate the articles to the limited time allowed for the submission of rebuttal information. Xinboda's Remand Opp'n at 4. However, the court notes that translation issues pervaded Xinboda's initial surrogate value submission, see generally Resubmission of Surrogate Value Submissions (Nov. 24, 2015) ("Xinboda's SV Submission"), Ex. SV-6, PR 387-89, PRJA Tab 6, indicating that this was not an isolated instance. Xinboda's assertion that it "did not try to obtain more formal translations of the articles [submitted] in the original review because [Commerce] never said they were indiscernible" erroneously places the burden on Commerce to seek corrections to Xinboda's surrogate values submission. See Xinboda's Remand Opp'n at 4 n.4;
For ease of reference, the court cites to the ECF page numbers stamped on the documents electronically filed with the court, rather than the PDF page numbers cited by the parties.
Garlic Productivity and Profitability discusses "the influence of seed clove size, planting density and planting method on yield, bulb size and ... profitability of [fresh] garlic." Xinboda's Remand Rebuttal, Ex. 3, ECF p. 289. The experiments discussed in the article relied solely upon the "Tacatzcaro" variety of garlic, and, as Commerce noted, relied on data from 1998 to 2000.
Garlic in Aguascalientes contains recommendations for garlic planting in the Aguascalientes region in terms of land considerations; garlic varieties; seeds; sowing; planting density; irrigation; fertilization; working the land; fighting weeds, pests, and diseases; and harvesting. Xinboda's Remand Rebuttal, Ex. 3, ECF pp. 295-301.
The cited table contains a list of garlic size classifications ranging from 3 to 12, each of which corresponds to a bulb diameter size range. See
It is true, as Xinboda asserts, that the phrase "norma Mexicana" appears in the original Spanish version in roughly the same place as the phrase "International Standard" appears in the English version; however, the reason for any discrepancy, if one exists, is unclear. See Xinboda's Remand Opp'n at 6; compare Xinboda's Remand Rebuttal, Ex. 3, ECF p. 471, with Xinboda's Remand Rebuttal, Ex. 3, ECF p. 486. The article's stated objective and concluding note refer to international and Mexican standards. See Xinboda's Remand Rebuttal, Ex. 3, ECF pp. 486, 498. Thus, the article appears to discuss some relationship between the international and Mexican standards for garlic classification; however, the poor quality of the translations prevent a clear understanding of the precise nature of the relationship for purposes of determining the article's relevance to the valuation of garlic in the underlying proceeding.
The article also refers to this variety as "Tacatzcuaro." See, e.g. ,
Commerce's Issues and Decision Memorandum quotes from Petitioners' summary of a publication discussing Romanian garlic that contains "a table of the most prominent varieties of garlic grown in Romania." I & D Mem. at 10 & n.52 (quoting Pet'rs' Rebuttal SC Comments at 10). Petitioners, in turn, cite to Exhibit ROM-1 appended to their submission. See Pet'rs' Rebuttal SC Comments at 10. Exhibit ROM-1 consists of an excerpt of a 2001 publication regarding the growing of vegetables in Romania. See
Xinboda's opposition to the Remand Results contains excerpts of the Spanish version of several tables listing garlic varieties and sizes with the English version of the heading appended thereto. See Xinboda's Remand Opp'n at 5-11. Further improving upon its translations provided to Commerce, Xinboda also excerpts portions of articles discussing Taiwanese and Perla garlic grown in Mexico. See Xinboda's Remand Opp'n at 12; cf. Xinboda's Remand Rebuttal, Ex. 3, ECF p. 381. As noted, however, it is not the court's role to reweigh the evidence or reconsider factual questions anew. See Downhole Pipe & Equip. ,
Pursuant to section 1677m(d), if Commerce
determines that a response to a request for information under this subtitle does not comply with the request, [Commerce] shall promptly inform the person submitting the response of the nature of the deficiency and shall, to the extent practicable, provide that person with an opportunity to remedy or explain the deficiency in light of the time limits established for the completion of investigations or reviews.
19 U.S.C. § 1677m(d). If the resubmission is also deficient or untimely, Commerce may "disregard all or part of the original and subsequent responses," subject to section 1677m(e).
Although Commerce may invite surrogate value data through its setting of a deadline for that information,
In connection with this argument Xinboda also seeks to respond to certain evidence proffered by Petitioners in the underlying proceeding regarding the size of Mexican garlic and Mexico's ability to meet U.S. demands for fresh garlic. Xinboda's Remand Opp'n at 14-15 & nn.7-8 (citations omitted). Xinboda first faults Commerce for "plac[ing] more weight on a privately obtained affidavit from a producer in Guanajuato state" than the articles Xinboda provided, and for crediting certain information contained in the affidavit.
Xinboda also points to evidence regarding Mexico's consumption of fresh garlic, which Xinboda asserts requires higher quality garlic, to support the proposition that "Mexico grows large bulb garlic." See Xinboda's Remand Opp'n at 13. The assertion, however, fails to link Mexican consumption to large bulb garlic similar to the subject merchandise, particularly in light of evidence suggesting that Mexico grows a range of garlic sizes. See Xinboda's Remand Rebuttal, Ex. 3, ECF p. 436 (Table 19).
Xinboda also points to Mexico's supply of garlic to the United States prior to the initial 1994 investigation in the Fresh Garlic from China proceeding. Xinboda's Remand Opp'n at 16 (citations omitted). This information has minimal, if any, relevance to Commerce's surrogate country selection in the 2013-2014 administrative review at issue here.
Defendant-Intervenors' attempt to dismiss Xinboda's evidence by pointing to references to rates based on size or weight misses the mark because that information pertains to less than full container loads. See Def.-Ints.' 56.2 Resp. at 45 (citing Xinboda's Prelim. SVs, Ex. SV-21, ECF p. 61); Pet'rs' SV Comments, Ex. 6 at 69.
Defendant's assertion that Xinboda has failed to support the use of different denominator weights that "are not mentioned in the Doing Business [Romania] report," Def.'s 56.2 Resp. at 56, cannot prevail because the 10,000kg container weight assumption is also not stated in the report.
Commerce summarily asserted that 10,000kg "is a mid-point between the smallest and the greatest weight held in a 20-foot container, which provides reasonable as well as consistent reporting across commodities." I & D Mem. at 31. Assuming a smallest weight of zero (an empty container), and a greatest weight of 28,200kg, see Case Br. (Jan. 19, 2016) at 56 n.15, CR 183, PR 419, CJA Tab 56, PJA Tab 56 (citation omitted), 10,000kg is clearly not the mid-point.
Parties dispute the applicability of the court's decision in Since Hardware (Guangzhou) Co., Ltd. v. United States , 38 CIT ----, ----,
On remand, Xinboda is free to renew its arguments regarding alternative denominators.