Qingdao Maycarrier Import & Export Corp., Ltd. v. United States

Slip Op. 13-149

UNITED STATES COURT OF INTERNATIONAL TRADE

QINGDAO MAYCARRIER IMPORT & :

EXPORT CO., LTD., :

:

Plaintiff, :

: Before: Nicholas Tsoucalas,

v. : Senior Judge

:

UNITED STATES, : Court No.: 13-00142

:

Defendant, :

: PUBLIC VERSION

and :

:

FRESH GARLIC PRODUCERS :

ASSOCIATION, et al., :

:

Defendant-Intervenors. :

:

OPINION

[Plaintiff’s motion for judgment on the agency record is denied.]

Dated: December 13, 2013

Robert T. Hume, Hume & Associates, LLC, of Ojai, CA for

plaintiff.

Melissa M. Devine, Trial Attorney, Commercial Litigation

Branch, Civil Division, U.S. Department of Justice, of Washington,

DC, for defendant. With her on the brief were Stuart F. Delery,

Assistant Attorney General, Jeanne E. Davidson, Director, and

Reginald T. Blades, Jr., Assistant Director. Of counsel on the

brief was George H. Kivork, Attorney, Office of the Chief Counsel

for Import Administration, U.S. Department of Commerce, of

Washington, DC.

Michael J. Coursey and John M. Herrmann II, Kelley Drye &

Warren LLP, of Washington, DC, for defendant-intervenors.

Tsoucalas, Senior Judge: Plaintiff Qingdao Maycarrier

Import & Export Co., Ltd. (“Maycarrier”), moves for judgment on the

agency record contesting defendant United States Department of

Court No. 13-00142 Page 2

Commerce’s (“Commerce”) determination in Fresh Garlic From the

People’s Republic of China: Final Rescission of Antidumping Duty

New Shipper Reviews; 2010-2011, 78 Fed. Reg. 18,316 (Mar. 26, 2013)

(“Final Rescission”). Commerce and defendant-intervenors Fresh

Garlic Producers Association, et al., oppose Maycarrier’s motion.

For the following reasons, Maycarrier’s motion is denied.

BACKGROUND

In 1994, Commerce issued an antidumping duty order

covering fresh garlic from the People’s Republic of China (“PRC”).

See Antidumping Duty Order: Fresh Garlic From the PRC, 59 Fed. Reg.

59,209 (Nov. 16, 1994). Maycarrier made three entries of subject

merchandise during 2011. See Request for Antidumping New Shipper

Review (Nov. 30, 2011), A-570-831, Public Rec. 2 at 1–2.1 In

November 2011, Maycarrier requested a new shipper review (“NSR”) to

obtain an individual rate for its entries. Id. at 1. Commerce

initiated the NSR in January 2012. See Fresh Garlic From the PRC:

Initiation of NSRs, 77 Fed. Reg. 266, 267 (Jan. 4, 2012).

In March 2013, Commerce rescinded Maycarrier’s NSR.

Final Rescission, 78 Fed. Reg. at 18,317. Commerce found that

Maycarrier was actually the same entity as Weifang Naike Foodstuffs

Co., Ltd. (“Naike”), an exporter that entered subject merchandise

1

Hereinafter, documents in the public record will be

designated “PR” and documents in the confidential record designated

“CR” without further specification except where relevant.

Court No. 13-00142 Page 3

prior to the period of review. See Issues and Decision Memorandum

for the Final Rescission of the Antidumping Duty NSRs of Fresh

Garlic from the PRC (Mar. 19, 2013), A-570-831, PR 194 at 3–6.

Commerce’s analysis centered on three pieces of evidence: (1)

mutual links between the two companies Commerce discovered on

numerous business-to-business websites and Maycarrier’s own

website; (2) Maycarrier’s business registration form; and (3)

Maycarrier’s tax records. See Analysis of Maycarrier (Mar. 19,

2013), A-570-831, CR 108 at 1–8.

Commerce placed evidence onto the record from business-

to-business websites and Maycarrier’s own website indicating that

Maycarrier and Naike shared contact information and personnel in

their sales and management departments. See CR 108 at 4–7.

Specific evidence included: several websites listed a telephone

number for Naike’s sales department that is identical to the number

Maycarrier listed for its sales department on its own website;

Maycarrier’s general manager, Eileen Chen, “manage[d] online sales

for both Maycarrier and Naike,” and shared a mobile number with

Naike’s chairman; Maycarrier’s profiles on “tradezz.com” and on

“tradekr.com” list Maycarrier’s phone number but direct users to

“naikefood.com”; Maycarrier and Naike are both listed as members of

a “Weifang Naike Group”; several websites list Naike’s employees as

contacts for Maycarrier; and Lily Pan, an employee of Naike, posted

sales information to Maycarrier’s profiles on several websites.

Court No. 13-00142 Page 4

See id. Given this evidence, Commerce concluded that Maycarrier

and Naike “appear indifferent to which of the two companies makes

a sale and receives the associated sales revenue.” PR 194 at 5–6.

During the review, Maycarrier provided Commerce with

copies of its tax returns and those of Yishi Hengshun Food Co.,

Ltd. (“Hengshun”), a company operating in Shandong Province that

produces subject merchandise. See Maycarrier’s Supplemental

Questionnaire Response, Exhs. 3, 13 (Jul. 20, 2012), A-570-831, CR

44, 45. Commerce located Hengshun’s records in the Shandong

Province National Taxation Bureau’s online database, but could not

locate Maycarrier’s records. See Analysis of Maycarrier’s New

Shipper Sales (Oct. 18, 2012), A-570-831, CR 73 at 6. Maycarrier

explained that the “Confidential Administration Provision on Tax

Payers” (“CAP”) for Qingdao City provided that its records were

confidential and therefore unavailable by internet search.

Maycarrier’s Second Supplemental Questionnaire Response (Dec. 13,

2012), A-570-831, CR 94 at 1. Commerce determined that the terms

of the CAP conflicted with Maycarrier’s argument. See CR 108 at 2.

Specifically, Commerce found that Article 4 of the CAP stated that

certain information was confidential, but did not define what

information qualified as confidential. Id. Furthermore, Article

2, which defined confidential information, did not list the tax

payer’s name, identification number, or the existence of its record

as confidential. Id. at 3. Commerce concluded that Maycarrier’s

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failure to explain the absence of its tax records was further

evidence that it was not an independent entity. See PR 194 at 5.

Maycarrier also provided Commerce with a copy of its

business registration form with an accompanying translation. CR

94, Exh. 2. Although it originally translated the “enterprise

status” portion of the form as “[[ ]],” id.,

Maycarrier subsequently amended the translation to “[[

]].” Maycarrier’s Third Supplemental Questionnaire

Response (Jan. 22, 2013), A-570-831, CR 100 at 2. Commerce

determined that a more accurate translation was “[[

]]” or “[[ ]],” indicating that

Maycarrier was “connected to another entity.” CR 108 at 8.

Given the record as a whole, Commerce concluded that “the

companies are essentially the same.” PR 194 at 5. Commerce

rescinded the review because Maycarrier did not report Naike’s

earlier sales of subject merchandise in violation of 19 C.F.R. §

351.214(b)(2)(iv).2 Final Rescission, 78 Fed. Reg. at 18,317.

Because it was no longer reviewing Maycarrier’s sales, Commerce

declined to assign Maycarrier a separate rate, PR 194 at 8–9, and

noted that Maycarrier’s entries would continue to be assessed at

the PRC-wide rate. See Final Rescission, 78 Fed. Reg. at 18,317.

2

Commerce also upheld its finding in the preliminary results

that Maycarrier’s NSR request was untimely under 19 C.F.R.

351.214(c). See PR 194 at 4.

Court No. 13-00142 Page 6

Maycarrier raises several challenges to the Final

Rescission: (1) Commerce erroneously rescinded the NSR; (2)

Commerce erroneously declined to assign Maycarrier a separate rate;

and (3) Commerce erroneously imposed an adverse facts available

(“AFA”) rate of $4.71/kg that was unsupported by substantial

evidence and contrary to law. See Pl.’s Br. at 25–46.

JURISDICTION and STANDARD OF REVIEW

The Court has jurisdiction pursuant to 28 U.S.C. §

1581(c) (2006) and section 516A(a)(2)(B)(iii) of the Tariff Act of

1930,3 as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2006).

“The court shall 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). Substantial evidence “means such

relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Universal Camera Corp. v. NLRB, 340 U.S.

474, 477 (1951). It is “something less than the weight of the

evidence, and the possibility of drawing two inconsistent

conclusions from the evidence does not prevent an administrative

agency’s finding from being supported by substantial evidence.”

Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620 (1966). In

3

Further citations to the Tariff Act of 1930 are to the

relevant portions of Title 19 of the U.S. Code, 2006 edition, and

all applicable amendments thereto.

Court No. 13-00142 Page 7

determining whether a decision was supported by substantial

evidence, the Court’s role is to “assess[] whether [Commerce’s]

action is reasonable given the record as a whole.” Since Hardware

(Guangzhou) Co. v. United States, 37 CIT __, __, 911 F. Supp. 2d

1362, 1365 (2013) (citing Nippon Steel Corp. v. United States, 458

F.3d 1345, 1350-51 (Fed. Cir. 2006)).

Additionally, “an agency's construction of its own

regulations is entitled to substantial deference.” Lyng v. Payne,

476 U.S. 926, 939 (1986).

DISCUSSION

I. Legal Framework

Commerce shall, upon request, conduct a review of a

exporter or producer who did not export subject merchandise to the

U.S. during the period of investigation or is not affiliated with

an entity that exported subject merchandise to the U.S. during that

period to determine whether that exporter or producer is eligible

for an “individual” rate. 19 U.S.C. § 1675(a)(2)(B)(i). Section

1675(a)(2)(B) “enables a new shipper ‘to demonstrate that it should

be accorded a dumping rate specific to itself, and not the

‘all-others’ rate.’” Hebei New Donghua Amino Acid Co. v. United

States, 29 CIT 603, 604, 374 F. Supp. 2d 1333, 1335 (2005) (citing

Tianjin Tiancheng Pharm. Co. v. United States, 29 CIT 256, 256, 366

F. Supp. 2d 1246, 1247 (2005)).

Commerce’s regulations set out requirements for an

Court No. 13-00142 Page 8

exporter or producer to obtain an individual rate through a NSR.

First, the exporter or producer must certify that it neither

exported subject merchandise during the period of investigation nor

is affiliated with an entity that did so. See 19 C.F.R. §

351.214(b)(2)(i)–(iii) (2012). It must also certify the date of

first entry of subject merchandise, the volume of that entry and

all later entries, and the date of first sale to an unaffiliated

customer in the U.S. Id. at § 351.214(b)(2)(iv). Commerce

explained that “[t]he purpose of these certifications is to ensure

that new shipper status is not achieved through mere restructuring

of corporate organizations or channels of distribution,” and that

“parties will not be granted new shipper status merely because they

were not individually examined during the investigation.”

Antidumping Duties, 61 Fed. Reg. 7308, 7318 (Feb. 27, 1996).

Finally, the exporter or producer must request the NSR

within one year after the date of first entry of subject

merchandise. See 19 C.F.R. § 351.214(c). Commerce included this

provision to clarify that “the statute is intended to provide a new

shipper an opportunity to obtain its own rate on an expedited

basis, and not to permit shippers to request expedited reviews long

after the first shipment has taken place.” Antidumping Duties, 61

Fed. Reg. at 7318.

II. The Final Rescission was Supported by Substantial Evidence

and Otherwise in Accordance with Law.

Court No. 13-00142 Page 9

Maycarrier argues that the Final Rescission must be

remanded because Commerce lacked authority to rescind the NSR under

19 C.F.R. § 351.214(b) or (c); Commerce did not determine that

Maycarrier was “affiliated” with Naike; and record evidence

established that Maycarrier was independent from Naike. See Pl.’s

Br. at 25–36.

A. Commerce’s Authority to Rescind the NSR

First, Maycarrier argues that Commerce lacked authority

to rescind the NSR under 19 C.F.R § 351.214(b) or (c). See Pl.’s

Br. at 29. According to Maycarrier, Commerce may rescind an NSR

only under the situations prescribed in 19 C.F.R. § 351.214(f):

either the party requesting the NSR voluntarily withdraws its

request or there was not a sale to an unaffiliated customer during

the review period. Pl.’s Reply at 7. Because neither of these

situations occurred during the NSR, Maycarrier argues that the

Final Rescission violated Commerce’s regulations. Id. at 10.

The Court expressly rejected this argument in Marvin

Furniture (Shanghai) Co. v. United States, 36 CIT __, 867 F. Supp.

2d 1302 (2012) (Tsoucalas, J.), appeal docketed No. 13-1156 (Fed.

Cir. Jan. 11, 2013). In that case, Commerce rescinded the NSR

because Marvin Furniture (Shanghai) Co., Ltd. (“Marvin”), did not

accurately report the date of first entry of subject merchandise.

Id. at __, 867 F. Supp. 2d at 1306. Marvin contested Commerce’s

authority to rescind the NSR, but the Court held that “the

Court No. 13-00142 Page 10

rescission was based on an application of the express provisions of

the relevant statutes and regulations.” Id. at __, 867 F. Supp. 2d

1308. The Court found that a NSR request “provides the basis upon

which Commerce can undertake the review,” and therefore Commerce

cannot engage in a NSR “[i]f a new shipper request does not provide

Commerce with accurate information regarding an exporter or

producer’s entries.” Id., 867 F. Supp. 2d at 1308.

As noted above, the regulations ensure that NSRs are

available to qualified new shippers only and prevent entities from

attempting to obtain a lower rate by obscuring earlier sales.

See Antidumping Duties, 61 Fed. Reg. at 7318. Given the deference

accorded to Commerce’s interpretation of its own regulations, Lyng,

476 U.S. at 939, the court continues to find that Commerce properly

rescinds a NSR where the request is inaccurate or infirm. See

Marvin, 36 CIT at __, 867 F. Supp. 2d at 1308.

B. “Affiliate” Standard

Maycarrier also argues that “Commerce failed to apply the

proper standard of ‘affiliation’” when analyzing Maycarrier’s

relationship with Naike. Pl.’s Reply at 10–11; see Pl.’s Br. at

27. According to Maycarrier, “Congress determined . . . that

‘affiliated’ is the operative relationship to disqualify a new

shipper in the case of a connection to a company involved in sales

of subject merchandise during the [period of investigation].” Id.

Maycarrier continues that “[a] similar relationship must exist in

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respect to a ‘connection’ for reporting sales within the one-year

limit specified in Commerce’s regulations.” Id. Because Commerce

did not conclude that Maycarrier was affiliated with Naike,

Maycarrier insists that the Final Rescission is contrary to statute

and regulation. Id. at 29.

Maycarrier’s argument is incorrect. Maycarrier borrows

the “affiliation” standard from 19 U.S.C. § 1675(a)(2)(B), which

applies to sales during the period of investigation. 19 U.S.C. §

1675(a)(2)(B). However, Commerce did not rely on section

1675(a)(2)(B) when rescinding the review. Rather, Commerce

determined that Maycarrier failed to report its first sale, in

violation of 19 C.F.R. § 351.214(b)(2)(iv), and did not timely file

its NSR request. Final Rescission, 78 Fed. Reg. at 18,317; PR 194

at 4. As noted above, these regulations require that an exporter

or producer certify certain information about its first entry and

sale, and request a review within one year of its first sale. 19

C.F.R. § 351.214(b)(2)(iv), (c). They do not mention “affiliation”

with another exporter or producer who made earlier sales, id., and

Maycarrier does not cite any authority supporting its position.

See Pl.’s Br. at 27; Pl.’s Reply at 10–11. Because it is

inconsistent with the plain text of the regulations, Maycarrier’s

argument must fail. 19 C.F.R. § 351.214(b)(2)(iv), (c).

C. Record Support for Commerce’s Determination

Finally, Maycarrier alleges that Commerce’s determination

Court No. 13-00142 Page 12

that Maycarrier was the same entity as Naike was not supported by

substantial evidence. See Pl.’s Br. at 25–36. Maycarrier insists

that Commerce unreasonably relied on information it obtained from

its “cyber investigation” of the two companies and erroneously

interpreted evidence regarding Maycarrier’s tax returns and

registration form. See id. Ultimately, Maycarrier insists that

Commerce did not have sufficient evidence to define the

relationship between the two entities and therefore the Final

Rescission must be remanded. See id.

As noted above, the Court reviews Commerce’s conclusions

to determine whether they were supported by substantial evidence

and in accordance with law. 19 U.S.C. § 1516a(b)(1)(B)(i). Here,

Commerce’s finding was reasonable given the record as a whole.

(i) Business-to-business Websites

Maycarrier insists that Commerce erroneously relied on

the information it discovered on business-to-business websites.

Pl.’s Br. at 28–31. To illustrate that the information was not

reliable, Maycarrier identifies three individual errors in its

brief: (1) “Nobodybuy.com” listed Eileen Chen as a contact for

Naike but does not mention garlic or Maycarrier; (2) “allbiz.com”

inconsistently translated Naike and Weifang Naike Group from the

Chinese characters; and (3) “B2B77.com” noted that Maycarrier did

not provide a company introduction on its company profile. Id. at

30–31. Maycarrier also insists that Naike or another entity

Court No. 13-00142 Page 13

fraudulently posted this information because, as it explained to

Commerce, “companies such as Naike make exaggerated and inaccurate

claims on websites.” Id. at 28. Neither of these arguments is

sufficient to undermine Commerce’s decision.

The record includes over two-dozen websites listing

information indicating that the companies share contact,

management, and personnel information, as well as direct sales to

one another. See CR 108 at 4–7 (detailing the instances of

overlapping information). Commerce acknowledged that the websites

contained certain errors, but concluded that, taken as a whole,

they represent a consistent pattern in which Maycarrier and Naike

represented themselves interchangeably. Id. Given the repeated

instances of overlapping information, the relatively minuscule

errors Maycarrier identifies on individual web pages do not render

Commerce’s decision erroneous. See Hoogovens Staal BV v. United

States, 24 CIT 242, 247, 93 F. Supp. 2d 1303, 1307 (2000) (citing

Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 936

(Fed. Cir. 1984)) (“[T]hat plaintiff can point to evidence . . .

which detracts from . . . [Commerce's] decision and can hypothesize

a . . . basis for a contrary determination is neither surprising

nor persuasive.”) (alterations in original).

Furthermore, Maycarrier’s claim that Naike fraudulently

posted the information to exaggerate its own business is

unavailing. Maycarrier insists that it is common in the PRC for

Court No. 13-00142 Page 14

companies to misrepresent themselves on the internet, and therefore

the information Commerce obtained is inaccurate. Pl.’s Br. at 31.

However, Maycarrier does not identify any evidence in the record

that supports this claim, see id., and its explanation is actually

contradicted by the record: Commerce found that Naike’s profile on

certain websites directed potential customers to Maycarrier,

indicating that the Naike actually promoted Maycarrier’s business.

See CR 108 at 6. Maycarrier’s alternative explanation of the

evidence, by itself, is an insufficient basis upon which to

overturn Commerce’s determination. See Consolo, 383 U.S. at 620.

(ii) Registration Form

Maycarrier also argues that Commerce mistranslated the

“enterprise status” section of its business registration form as

“[[ ]]” or “[[ ]].” See

Pl.’s Br. at 32–33. According to Maycarrier, the proper

translation is “[[ ]],” which indicates that it is

an independent entity. Id. at 33. As evidence, Maycarrier points

to the translation on the record of the Company Law of the PRC

(“Company Law”), in which the same characters as those in

Maycarrier’s enterprise status are translated as “[[

]].” Id. Maycarrier insists that “[c]learly this

translation affirms Maycarrier’s translation.” Id.

Maycarrier’s argument is unpersuasive. The translated

section of the Company law reads: “[[

Court No. 13-00142 Page 15

]].”

Id. (emphasis in Pl.’s Br.). Contrary to Maycarrier’s insistence,

this section of the Company Law does not “clearly” establish that

“[[ ]]” is the proper translation. Maycarrier

posits an alternative interpretation of the quoted language, but

does not provide any evidence demonstrating that Commerce’s

interpretation was erroneous. Again, an alternative interpretation

of the evidence, by itself, is insufficient to undermine Commerce’s

conclusion. See Consolo, 383 U.S. at 620.

(iii) Tax Records

Finally, Maycarrier alleges that Commerce’s analysis of

its tax records was unsupported by substantial evidence. Pl.’s Br.

at 33–36. According to Maycarrier, Commerce’s translation of the

CAP provisions was unreasonable because it is not qualified to

interpret Chinese law. See id. at 35 (comparing Commerce’s

translation to “the Chinese government interpreting U.S. tax laws

and how they are administered”). Maycarrier argues that, under the

CAP in Qingdao City, its tax records are confidential and

undiscoverable by internet search, and therefore it was

unreasonable for Commerce to expect to discover its tax records in

the online database. See Pl.’s Reply at 19. Maycarrier insists

Court No. 13-00142 Page 16

that Commerce should have verified this argument by consulting the

U.S. Embassy in Beijing, searching for the tax records of another

company registered in Qingdao City, or requesting information from

the Chinese government. See Pl.’s Br. at 35.

This argument is unavailing. Maycarrier does not provide

any authority supporting its position that Commerce is unqualified

to analyze the operation of foreign laws. See id. at 35.

Regardless, Commerce analyzed the terms of the CAP because

Maycarrier placed them onto the record to support its position. CR

108 at 1–4 (analyzing the terms of the CAP). Based on this

evidence, Commerce found that it should have been able to confirm

the existence of Maycarrier’s records on the online database. Id.

at 2–4. Maycarrier contests this interpretation, but it fails to

identify any record evidence supporting its argument other than its

own interpretation of the CAP. Pl.’s Br. at 35; Pl.’s Reply at 19.

Such an argument is inadequate to justify overturning Commerce’s

determination. See Consolo, 383 U.S. at 620. Furthermore,

Maycarrier’s insistence the Commerce was required to consult non-

record sources to produce evidence supporting Maycarrier’s

interpretation of the CAP is inapposite.4 See Qingdao Sea-line

4

Maycarrier also argues that Commerce’s translation of the

CAP and the business registration certificate constituted new

information on the record to which Commerce did not allow

Maycarrier a response. See Pl.’s Br. at 33, 35. However,

Maycarrier’s claim lacks merit because it originally translated its

enterprise status at “[[ ]]” and placed the

Court No. 13-00142 Page 17

Trading Co. v. United States, 36 CIT __, __, Slip Op. 12-39 at 19

(Mar. 21, 2012) (“[I]t was simply not Commerce's duty to help

[Plaintiff] create an adequate record to support its position.”).

Because Maycarrier fails to demonstrate that Commerce’s

determination was unsupported by substantial evidence, the court

finds that Commerce reasonably concluded that Maycarrier was

“essentially the same” as Naike. See Since Hardware, 37 CIT at __,

911 F. Supp. 2d at 1365 (citing Nippon Steel, 458 F.3d at 1350-51).

III. Maycarrier was not Eligible for a Separate Rate

Maycarrier also challenges Commerce’s decision not to

assign a separate rate. Pl.’s Br. at 24–25, 36–37. According to

Maycarrier, it satisfied the requirements for a separate rate,

having timely submitted its section A questionnaire addressing its

independence from the Chinese government. Id. at 24. Accordingly,

Maycarrier insists that Commerce should have assigned a separate

rate or transferred the evidence to the seventeenth administrative

review of fresh garlic from the PRC (“17th AR”), which covered the

period of Maycarrier’s sales. Id. at 36.

In antidumping duty proceedings, Commerce establishes an

individual rate for mandatory respondents and a country-wide rate

for all others. 19 U.S.C. § 1673d(c)(1)(B)(i). When merchandise

is from a non-market economy, as it is here, Commerce presumes that

untranslated sections of the CAP onto the record. See CR 94 at 1

& Exh. 2.

Court No. 13-00142 Page 18

all non-mandatory respondents are government controlled and

therefore those respondents are subject to the country-wide rate.

See Sigma Corp. v. United States, 117 F.3d 1401, 1405 (Fed. Cir.

1997). Commerce does allow a non-mandatory respondent to overcome

this presumption, however, if it can establish the absence of both

de jure and de facto government control. Id. If the non-mandatory

respondent makes such a showing, Commerce assigns a separate rate,

normally calculated by weight-averaging the individually-calculated

rates. See Changzhou Wujin Fine Chem. Factory Co. v. United

States, 37 CIT __, __, Slip Op. 13-127 at 3–4 (Oct. 2, 2013).

Here, Commerce determined that it had no basis to assign

Maycarrier a separate rate because it rescinded the review and was

no longer reviewing Maycarrier. PR 194 at 8–9. Maycarrier’s

insistence that Commerce was required to review its section A

questionnaire and assign a separate rate is not consistent with the

statutory framework for NSRs. The statute states that Commerce

shall conduct a NSR to “establish an individual weighted average

dumping margin.” 19 U.S.C. § 1675(a)(2)(B)(i) (emphasis added).

Once Commerce determined that Maycarrier was not a new shipper

eligible for an individual rate, the review ended and Maycarrier’s

goods remained subject to the rate already in place, the PRC-wide

rate. See Final Rescission, 78 Fed. Reg. at 18,317. Therefore,

Commerce properly determined that there was no basis to consider

Maycarrier’s separate rate eligibility. See 19 U.S.C. §

Court No. 13-00142 Page 19

1675(a)(2)(B)(i).

Alternatively, Maycarrier insists that Commerce erred in

failing to exercise its authority to transfer the record of the NSR

to the 17th AR. See Pl.’s Br. at 36–37. Maycarrier relies on Fresh

Garlic From the PRC: Final Rescission of NSRs of Jining Yifa Garlic

Produce Co., Ltd., Shenzhen Bainong Co., Ltd., and Yantai Jinyan

Trading Inc., 76 Fed. Reg. 52,315 (Aug. 22, 2011) (“Jinyan NSR”),

in which Commerce rescinded Yantai Jinyan Trading Inc.’s NSR and

transferred its record to the concurrent administrative review.

See Pl.’s Br. at 37. Commerce responds that Maycarrier failed to

exhaust its administrative remedies with regards to this claim

because it did not request that Commerce transfer the record during

the NSR. Def.’s Resp. Opp. Pl.’s Mot. J. Agency R. at 39 (“Def.’s

Resp.”). Accordingly, Commerce insists that the court should not

consider Maycarrier’s argument on the merits. Id.

As a general rule, the Court “shall, where appropriate,

require the exhaustion of administrative remedies.” 28 U.S.C. §

2637(d). “The exhaustion doctrine requires a party to present its

claims to the relevant administrative agency for the agency's

consideration before raising these claims to the Court.” Luoyang

Bearing Corp. v. United States, 28 CIT 733, 760, 347 F. Supp. 2d

1326, 1351 (2004) (citing Unemployment Compensation Comm'n v.

Aragon, 329 U.S. 143, 155 (1946)). However, the Court recognizes

certain exceptions to the rule: (1) where raising the claim would

Court No. 13-00142 Page 20

be futile; (2) where there has been an intervening court decision

that may materially affect Commerce’s determination; (3) where the

question is one of law and did not require further factual

development; and (4) where there was no reason to believe Commerce

would refuse to adhere to applicable precedent. See id. at 761

n.11, 347 F. Supp. 2d at 1352 n.11.

There is no dispute that Maycarrier did not request to

have the record transferred during the NSR. Def.’s Resp. at 39;

Pl.’s Reply at 25. Additionally, Maycarrier neither alleged that

Commerce failed to transfer evidence during the review, nor raised

the Jinyan NSR before Commerce in support of such a claim.

See Case Brief of Maycarrier (Feb. 11, 2013), A-570-831, CR 104.

Maycarrier instead argues that Commerce previously rejected its

request to participate in the 17th AR, and therefore would not have

accepted a transfer request. Pl.’s Reply at 25.

The futility exception arises where, if the exhaustion

requirement was enforced, “parties would be required to go through

obviously useless motions in order to preserve their rights.”

Corus Staal BV v. United States, 502 F.3d 1370, 1379 (Fed. Cir.

2007) (internal quotation marks omitted). A party may not rely on

this exception, however, simply because “an adverse decision may

have been likely.” Id.

Here, there is no evidence that the transfer request

would have been “obviously useless.” Maycarrier requested that

Court No. 13-00142 Page 21

Commerce transfer certain documents to the NSR from the 17th AR.

See Request for Clarification of Case Brief Schedule and Request

for Department to Place Surrogate Country and Surrogate Values Data

from the Garlic 17th AR on the Record of this NSR (Jan. 9, 2013),

A-570-831, PR 160. If Maycarrier wanted Commerce to transfer its

section A questionnaire or any other evidence to the concurrent

administrative review, it was aware of its right and had the

opportunity to do so. Accordingly, the futility exception does not

apply. Corus Staal, 502 F.3d at 1379. Because Maycarrier did not

request that Commerce transfer evidence to the 17th AR, it failed

to exhaust administrative remedies with regards to this claim. See

28 U.S.C. § 2637(d).

IV. Commerce did not Make an AFA determination

Finally, Maycarrier argues that in refusing to assign a

separate rate, Commerce effectively imposed an AFA rate without

first meeting the statutory requirements. Pl.’s Br. at 37.

Specifically, Maycarrier notes that Commerce did not find that it

failed to cooperate to the best of its ability during the review.

Id. Moreover, Maycarrier adds that the AFA rate is wrongful

because Commerce failed to corroborate the $4.71/kg rate during the

sixteenth administrative review of fresh garlic from the PRC (“16th

AR”). Id. at 38–46.

Where Commerce “finds that an interested party has failed

to cooperate by not acting to the best of its ability to comply

Court No. 13-00142 Page 22

with a request for information,” it “may use an inference that is

adverse to the interests of that party.” 19 U.S.C. § 1677e(b). If

it “relies on secondary information rather than on information

obtained in the course of an investigation or review” when making

such an inference, Commerce “shall, to the extent practicable,

corroborate that information from independent sources that are

reasonably at [its] disposal.” Id. at § 1677e(c).

Maycarrier’s argument is based on the mistaken belief

that Commerce “imposed” the AFA rate in the Final Rescission. As

noted above, Commerce rescinded the NSR and, as a result,

Maycarrier’s entries remained subject to the PRC-wide rate. Final

Rescission, 78 Fed. Reg. 18,317. Commerce did not make a decision

on the merits concerning the assessment rate on Maycarrier’s

entries. See PR 194 at 8–9. Accordingly, Commerce neither made an

AFA determination nor imposed an AFA rate.5 See Huaiyang Hongda

Dehydrated Vegetable Co. v. United States, 28 CIT 1944, 1953–54

(2004) (not published in the Federal Supplement) (Commerce did not

impose an AFA rate where it rescinded an administrative review and

the AFA rate from an earlier review remained in place).

Furthermore, the only review currently before the court

is the Final Rescission. Because Commerce did not make an AFA

5

Commerce argues that Maycarrier failed to exhaust its

administrative remedies with regards to its AFA claim. See Def.’s

Resp. at 30–34. As Commerce did not make an AFA determination the

court need not reach a decision on this issue.

Court No. 13-00142 Page 23

determination and did not impose any rate based upon secondary

information, PR 194 at 3–9, there was no information that Commerce

was required to corroborate in the NSR. See 19 U.S.C. § 1677e(c).

Maycarrier’s corroboration claim concerning the 16th AR is not

properly before the court and the court lacks jurisdiction over

this claim. See Huaiyang Hongda, 28 CIT at 1954 (finding that the

Court lacks jurisdiction over plaintiff’s claim that Commerce

failed to corroborate an AFA rate that was not imposed during the

proceeding before the Court).

CONCLUSION

The Final Rescission was supported by substantial

evidence and otherwise in accordance with law. Because Commerce

rescinded the review, Maycarrier was not entitled to a separate

rate. Additionally, Commerce did not impose an AFA rate and the

court lacks jurisdiction over Maycarrier’s claim concerning

corroboration of the assessment rate. Plaintiff’s motion for

judgment on the agency record is denied and judgment will be

entered accordingly.

/s/ Nicholas Tsoucalas

Nicholas Tsoucalas

Senior Judge

Date: December 13, 2013

New York, New York