Slip Op. 20-127
UNITED STATES COURT OF INTERNATIONAL TRADE
COALITION FOR FAIR TRADE IN GARLIC,
Plaintiff,
v.
UNITED STATES, Before: Mark A. Barnett, Judge Court No. 18-00137 Defendant,
and
HARMONI INTERNATIONAL SPICE, INC., ET AL.,
Defendant-Intervenors.
OPINION
[Sustaining the U.S. Department of Commerce’s final results of redetermination.]
Dated: August 27, 2020
Anthony L. Lanza and Brodie H. Smith, Lanza and Smith PLC, of Irvine, CA, for Plaintiff Coalition for Fair Trade in Garlic.
Meen Geu Oh, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for Defendant United States. Of counsel was Emma T. Hunter, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.
Michael J. Coursey, John M. Herrmann, and Joshua R. Morey, Kelley Drye & Warren LLP, of Washington, DC, for Defendant-Intervenors Fresh Garlic Producers Association and its Individual Members.
Bruce M. Mitchell, Alan G. Lebowitz, Ned H. Marshak, Jordan C. Kahn, and Andrew T. Schutz, Grunfeld Desiderio Lebowitz Silverman & Klestadt LLP, of New York, NY, for Defendant-Intervenors Zhengzhou Harmoni Spice Co., Ltd. and Harmoni International Spice Inc. Court No. 18-00137 Page 2
Barnett, Judge: This matter is before the court following the U.S. Department of
Commerce’s (“Commerce” or “the agency”) redetermination upon remand in this case.
See Final Results of Redetermination Pursuant to Remand (“Remand Results”), ECF
No. 99-1. 1
In this action, Plaintiff Coalition for Fair Trade in Garlic (“the CFTG”) challenged
Commerce’s final results and partial rescission of the 22nd administrative review of the
antidumping duty order on fresh garlic from the People’s Republic of China. See Fresh
Garlic From the People’s Republic of China, 83 Fed. Reg. 27,949 (Dep’t Commerce
June 15, 2018) (final results and partial rescission of the 22nd antidumping duty admin.
review and final result and rescission, in part, of the new shipper reviews; 2015–2016),
ECF No. 24-2, and accompanying Issues and Decision Mem., A-570-831 (June 8,
2018), ECF No. 24-3. In particular, the CFTG challenged Commerce’s regulation
governing the partial rescission of an administrative review upon the withdrawal of
request to review a producer or exporter, 19 C.F.R. § 351.213(d)(1), and Commerce’s
determination that the CFTG’s request for a review of Defendant-Intervenor Zhengzhou
Harmoni Spice Co., Ltd. (“Harmoni”) was invalid ab initio on the basis that none of the
CFTG’s members had standing to request the review. See Mot. of Pls. [CFTG] and its
Individual Members for J. on the Agency R. and accompanying Mem. in Supp. at 25–49,
ECF No. 38. In a prior opinion, familiarity with which is presumed, the court remanded
Commerce’s determination based on the CFTG’s second challenge and declined to
1Commerce filed a public administrative record, ECF No. 100-2, and a confidential administrative record, ECF No. 100-3, in connection with the Remand Results. Court No. 18-00137 Page 3
reach the CFTG’s first challenge. Coal. for Fair Trade in Garlic v. United States
(“CFTG”), 44 CIT ___, ___, 437 F. Supp. 3d 1347, 1349 (2020). 2
At the time it submitted its request for an administrative review of Harmoni, the
CFTG’s membership consisted of four individuals:
Stanley Crawford, owner and operator of El Bosque Farm of Dixon, New Mexico; Avrum Katz, owner and operator of Boxcar Farm of Peñasco, New Mexico; Alex Pino, owner and operator of Revolution Farm of Santa Fe, New Mexico; and Suzanne Sanford, owner and operator of Sanford Farm of Costilla, New Mexico.
Id. at 1350 n.6. Mr. Katz and Mr. Pino later withdrew from the CFTG and Melinda
Bateman joined the CFTG. Id. To evaluate the validity of the CFTG’s request,
Commerce considered the standing and credibility of the CFTG members who had
submitted the request—Mr. Katz, Mr. Crawford, Ms. Sanford, and Mr. Pino. Id. at 1352
(discussing Commerce’s preliminary determination); id. at 1353–54 (discussing
Commerce’s final determination). “Mr. Katz and Mr. Pino did not respond to
Commerce’s questionnaires”; thus, “Commerce’s analysis was limited to the responses
of Mr. Crawford and Ms. Sanford.” Id. at 1352. Commerce concluded that “material
misrepresentations and inconsistencies” in Mr. Crawford’s and Ms. Sanford’s respective
statements undermined their alleged status as domestic garlic farmers and, thus,
“neither individual had standing to request an administrative review pursuant to 19
2 Regarding the CFTG’s first challenge, the court explained that it was guided by the U.S. Court of Appeals for the Federal Circuit’s holding, in connection with analogous facts, that an invalid review request meant that the requestor “‘was not a “party to the proceeding”’ eligible to challenge Commerce’s regulation.” CFTG, 437 F. Supp. 3d at 1361 (quoting N.M. Garlic Growers Coal. v. United States, 953 F.3d 1358, 1372–73 (Fed. Cir. 2020). Court No. 18-00137 Page 4
U.S.C. § 1677(9)(C).” 3 Id. at 1353. “Commerce did not make an explicit finding as to
whether the CFTG had requested the review on behalf of its individual members or
solely as an association,” instead, “Commerce found that none of the requesting
members had individual standing and, thus, the CFTG did not have standing.” Id.
Commerce rescinded its review of Harmoni and six other companies on the basis that
no other review request remained in place. Id. at 1354.
The court sustained Commerce’s determination respecting Ms. Sanford but
remanded Commerce’s determination respecting Mr. Crawford. Id. at 1354–58. Thus,
the court was “unable to affirm the agency’s determination that the [CFTG’s] review
request was invalid ab initio.” Id. at 1360. The court found, however, that “Commerce’s
determination that at least three of the four members of the CFTG, at the time of the
review request, did not credibly establish that they qualified as domestic producers
[was] supported by substantial evidence.” Id. at 1360. Accordingly, the court afforded
Commerce the opportunity, on remand, to “make an express finding as to whether the
CFTG submitted the review request as an association only or also on behalf of its
individual members . . . in addition to, or in lieu of, its reconsideration of Mr. Crawford’s
credibility and status.” Id. at 1360–61.
3 Section 1677(9) defines the term “interested party” for purposes of the antidumping and countervailing duty laws. Relevant here, section 1677(9)(C) defines “interested party” as “a manufacturer, producer, or wholesaler in the United States of a domestic like product.” 19 U.S.C. § 1677(9)(C). Section 16779(E) defines “interested party” as “a trade or business association a majority of whose members manufacture, produce, or wholesale a domestic like product in the United States.” Id. § 1677(9)(E). Commerce requires a majority of the members of an association to have standing as individuals pursuant to section 1677(9)(C) for the association to have standing pursuant to section 1677(9)(E). CFTG, 437 F. Supp. 3d at 1353. Court No. 18-00137 Page 5
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Slip Op. 20-127
UNITED STATES COURT OF INTERNATIONAL TRADE
COALITION FOR FAIR TRADE IN GARLIC,
Plaintiff,
v.
UNITED STATES, Before: Mark A. Barnett, Judge Court No. 18-00137 Defendant,
and
HARMONI INTERNATIONAL SPICE, INC., ET AL.,
Defendant-Intervenors.
OPINION
[Sustaining the U.S. Department of Commerce’s final results of redetermination.]
Dated: August 27, 2020
Anthony L. Lanza and Brodie H. Smith, Lanza and Smith PLC, of Irvine, CA, for Plaintiff Coalition for Fair Trade in Garlic.
Meen Geu Oh, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for Defendant United States. Of counsel was Emma T. Hunter, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.
Michael J. Coursey, John M. Herrmann, and Joshua R. Morey, Kelley Drye & Warren LLP, of Washington, DC, for Defendant-Intervenors Fresh Garlic Producers Association and its Individual Members.
Bruce M. Mitchell, Alan G. Lebowitz, Ned H. Marshak, Jordan C. Kahn, and Andrew T. Schutz, Grunfeld Desiderio Lebowitz Silverman & Klestadt LLP, of New York, NY, for Defendant-Intervenors Zhengzhou Harmoni Spice Co., Ltd. and Harmoni International Spice Inc. Court No. 18-00137 Page 2
Barnett, Judge: This matter is before the court following the U.S. Department of
Commerce’s (“Commerce” or “the agency”) redetermination upon remand in this case.
See Final Results of Redetermination Pursuant to Remand (“Remand Results”), ECF
No. 99-1. 1
In this action, Plaintiff Coalition for Fair Trade in Garlic (“the CFTG”) challenged
Commerce’s final results and partial rescission of the 22nd administrative review of the
antidumping duty order on fresh garlic from the People’s Republic of China. See Fresh
Garlic From the People’s Republic of China, 83 Fed. Reg. 27,949 (Dep’t Commerce
June 15, 2018) (final results and partial rescission of the 22nd antidumping duty admin.
review and final result and rescission, in part, of the new shipper reviews; 2015–2016),
ECF No. 24-2, and accompanying Issues and Decision Mem., A-570-831 (June 8,
2018), ECF No. 24-3. In particular, the CFTG challenged Commerce’s regulation
governing the partial rescission of an administrative review upon the withdrawal of
request to review a producer or exporter, 19 C.F.R. § 351.213(d)(1), and Commerce’s
determination that the CFTG’s request for a review of Defendant-Intervenor Zhengzhou
Harmoni Spice Co., Ltd. (“Harmoni”) was invalid ab initio on the basis that none of the
CFTG’s members had standing to request the review. See Mot. of Pls. [CFTG] and its
Individual Members for J. on the Agency R. and accompanying Mem. in Supp. at 25–49,
ECF No. 38. In a prior opinion, familiarity with which is presumed, the court remanded
Commerce’s determination based on the CFTG’s second challenge and declined to
1Commerce filed a public administrative record, ECF No. 100-2, and a confidential administrative record, ECF No. 100-3, in connection with the Remand Results. Court No. 18-00137 Page 3
reach the CFTG’s first challenge. Coal. for Fair Trade in Garlic v. United States
(“CFTG”), 44 CIT ___, ___, 437 F. Supp. 3d 1347, 1349 (2020). 2
At the time it submitted its request for an administrative review of Harmoni, the
CFTG’s membership consisted of four individuals:
Stanley Crawford, owner and operator of El Bosque Farm of Dixon, New Mexico; Avrum Katz, owner and operator of Boxcar Farm of Peñasco, New Mexico; Alex Pino, owner and operator of Revolution Farm of Santa Fe, New Mexico; and Suzanne Sanford, owner and operator of Sanford Farm of Costilla, New Mexico.
Id. at 1350 n.6. Mr. Katz and Mr. Pino later withdrew from the CFTG and Melinda
Bateman joined the CFTG. Id. To evaluate the validity of the CFTG’s request,
Commerce considered the standing and credibility of the CFTG members who had
submitted the request—Mr. Katz, Mr. Crawford, Ms. Sanford, and Mr. Pino. Id. at 1352
(discussing Commerce’s preliminary determination); id. at 1353–54 (discussing
Commerce’s final determination). “Mr. Katz and Mr. Pino did not respond to
Commerce’s questionnaires”; thus, “Commerce’s analysis was limited to the responses
of Mr. Crawford and Ms. Sanford.” Id. at 1352. Commerce concluded that “material
misrepresentations and inconsistencies” in Mr. Crawford’s and Ms. Sanford’s respective
statements undermined their alleged status as domestic garlic farmers and, thus,
“neither individual had standing to request an administrative review pursuant to 19
2 Regarding the CFTG’s first challenge, the court explained that it was guided by the U.S. Court of Appeals for the Federal Circuit’s holding, in connection with analogous facts, that an invalid review request meant that the requestor “‘was not a “party to the proceeding”’ eligible to challenge Commerce’s regulation.” CFTG, 437 F. Supp. 3d at 1361 (quoting N.M. Garlic Growers Coal. v. United States, 953 F.3d 1358, 1372–73 (Fed. Cir. 2020). Court No. 18-00137 Page 4
U.S.C. § 1677(9)(C).” 3 Id. at 1353. “Commerce did not make an explicit finding as to
whether the CFTG had requested the review on behalf of its individual members or
solely as an association,” instead, “Commerce found that none of the requesting
members had individual standing and, thus, the CFTG did not have standing.” Id.
Commerce rescinded its review of Harmoni and six other companies on the basis that
no other review request remained in place. Id. at 1354.
The court sustained Commerce’s determination respecting Ms. Sanford but
remanded Commerce’s determination respecting Mr. Crawford. Id. at 1354–58. Thus,
the court was “unable to affirm the agency’s determination that the [CFTG’s] review
request was invalid ab initio.” Id. at 1360. The court found, however, that “Commerce’s
determination that at least three of the four members of the CFTG, at the time of the
review request, did not credibly establish that they qualified as domestic producers
[was] supported by substantial evidence.” Id. at 1360. Accordingly, the court afforded
Commerce the opportunity, on remand, to “make an express finding as to whether the
CFTG submitted the review request as an association only or also on behalf of its
individual members . . . in addition to, or in lieu of, its reconsideration of Mr. Crawford’s
credibility and status.” Id. at 1360–61.
3 Section 1677(9) defines the term “interested party” for purposes of the antidumping and countervailing duty laws. Relevant here, section 1677(9)(C) defines “interested party” as “a manufacturer, producer, or wholesaler in the United States of a domestic like product.” 19 U.S.C. § 1677(9)(C). Section 16779(E) defines “interested party” as “a trade or business association a majority of whose members manufacture, produce, or wholesale a domestic like product in the United States.” Id. § 1677(9)(E). Commerce requires a majority of the members of an association to have standing as individuals pursuant to section 1677(9)(C) for the association to have standing pursuant to section 1677(9)(E). CFTG, 437 F. Supp. 3d at 1353. Court No. 18-00137 Page 5
In the Remand Results at issue here, Commerce concluded that the CFTG
submitted its review request on behalf of the CFTG as an association only—and not
also on behalf of the CFTG’s individual members. Remand Results at 4. Commerce
therefore concluded that the CFTG’s request “was invalid, ab initio, because a majority
of the members of the CFTG association, at the time of the request, did not credibly
establish that they [were] interested parties” pursuant to 19 U.S.C. § 1677(9)(C). Id. In
light of this conclusion, Commerce declined to reconsider its findings with respect to Mr.
Crawford. Id. at 21–22.
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction pursuant to section 516A(a)(2)(B)(iii) of the Tariff Act of
1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2018), and 28 U.S.C. § 1581(c).
The court will uphold an agency determination that is supported by substantial
evidence and otherwise in accordance with law. 19 U.S.C. § 1516a(b)(1)(B)(i). “The
results of a redetermination pursuant to court remand are also reviewed for compliance
with the court’s remand order.” SolarWorld Ams., Inc. v. United States, 41 CIT ___,
___, 273 F. Supp. 3d 1314, 1317 (2017) (citation omitted).
DISCUSSION
While the CFTG submitted comments during the remand proceeding in
opposition to Commerce’s draft redetermination, see Remand Results at 11–12, the Court No. 18-00137 Page 6
CFTG did not object to the Remand Results before the court. 4 Thus, Commerce’s
redetermination is uncontested.
Commerce’s determination on remand that the CFTG’s review request was
invalid ab initio complies with the court’s order in CFTG. Commerce provided the
agency’s reasoning supported by substantial evidence for its findings (1) that the
CFTG’s review request was filed on behalf of the CFTG as an association only, see
Remand Results at 5–7, 13–18; and (2) that the CFTG lacked standing as an
association because, at the time of the review request, a majority of its members had
failed to establish standing as individuals, see id. at 7–8.
CONCLUSION
There being no challenges to the Remand Results, and those results being
otherwise lawful and supported by substantial evidence, the court will sustain
Commerce’s Remand Results. Judgment will enter accordingly.
/s/ Mark A. Barnett Mark A. Barnett, Judge
Dated: August 27, 2020 New York, New York
4Comments in opposition to the Remand Results were due on August 12, 2020. See Docket Entry, ECF No. 99. As of the date of this Opinion, the CFTG has not filed any objections.