Jinan Yipin Corp., Ltd. v. United States

2012 CIT 78

• Court: United States Court of International Trade
• Decided: June 5, 2012
• Docket: Consol. 04-00240
• Status: Published

Opinion

Slip Op. 12-78

UNITED STATES COURT OF INTERNATIONAL TRADE

JINAN YIPIN CORPORATION, LTD. and SHANDONG HEZE INTERNATIONAL TRADE AND DEVELOPING COMPANY,

Plaintiffs, Before: Timothy C. Stanceu, Judge v. Consol. Court No. 04-00240 UNITED STATES,

Defendant.

OPINION

[Sustaining a remand redetermination in an administrative review of an antidumping duty order]

Date: June 5, 2012

Mark E. Pardo, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of Washington, DC, for plaintiff Jinan Yipin Corporation, Ltd.

Richard P. Schroeder, Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for defendant. With him on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel on the brief was George Kivork, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, of Washington, DC.

Stanceu, Judge: This case arose from the final determination (“Final Results”) that the

International Trade Administration, U.S. Department of Commerce (“Commerce” or the

“Department”) issued to conclude an administrative review of an antidumping duty order on

fresh garlic from the People’s Republic of China. Fresh Garlic From the People’s Republic of

China: Final Results of Antidumping Duty Admin. Review & New Shipper Reviews, 69 Fed. Reg. Consol. Court No. 04-00240 Page 2

33,626 (June 16, 2004) (“Final Results”). Before the court is the Department’s third

redetermination (“Third Remand Redetermination”). Final Results of Third Redetermination

Pursuant to Remand (Sept. 7, 2011), ECF No. 125. In the Third Remand Redetermination,

Commerce redetermined a surrogate value for the labor expenses of plaintiff Jinan Yipin

Corporation, Ltd. (“Jinan Yipin”), a Chinese garlic producer and exporter, following a decision

of the U.S. Court of Appeals for the Federal Circuit (“Court of Appeals”) holding contrary to law

the regulation, 19 C.F.R. § 351.408(c)(3) (2004), upon which the Department determined a

surrogate value for Jinan Yipin’s labor cost in the Final Results. Dorbest Ltd. v. United States,

604 F.3d 1363 (Fed. Cir. 2010). Plaintiff concurs in the redetermined surrogate value. The court

sustains the Third Remand Redetermination and will enter judgment concluding this case.

I. BACKGROUND

The background of this litigation is discussed in the court’s prior opinions. Additional

background is presented briefly below.

Commerce issued the Final Results on June 16, 2004, Final Results, 69 Fed. Reg.

at 33,626, in which, applying 19 C.F.R. § 351.408(c)(3), it determined a surrogate value of $0.90

per hour for Jinan Yipin’s labor cost. Third Remand Redetermination 1. The complaint filed by

Jinan Yipin did not challenge the surrogate value for labor cost. Compl. (July 19, 2004), ECF

No. 9.

On June 30, 2010, plaintiff moved for leave to amend its complaint to add a claim that

the surrogate value for labor determined in the Final Results was contrary to law. Jinan Yipin’s

Partial Consent Mot. for Leave to File an Amended Compl. (June 30, 2010), ECF No. 112. The

court granted this motion on July 20, 2010. Order (July 20, 2010), ECF No. 115; Amended

Compl. (July 20, 2010), ECF No. 116. At that point, Commerce had filed the second remand Consol. Court No. 04-00240 Page 3

redetermination (“Second Remand Redetermination”). Final Results of Redetermination

Pursuant to Ct. Remand Order (Feb. 25, 2010), ECF No. 103 (“Second Remand

Redetermination”). On August 6, 2010, defendant requested a voluntary remand to allow

Commerce to redetermine a surrogate value for Jinan Yipin’s labor expenses. Def.’s Resp. to

Jinan Yipin’s Remand Comments 16-17 (Aug. 6, 2010), ECF No. 117. On April 12, 2011, the

court granted that request and affirmed all other aspects of the Second Remand Redetermination.

Jinan Yipin Corp. v. United States, 35 CIT __, __, 774 F. Supp. 2d 1238, 1250 (2011).

On September 7, 2011, Commerce filed the Third Remand Redetermination. On

October 12, 2011, plaintiff informed the court that it did not object to the Department’s

redetermined surrogate value for labor. Jinan Yipin’s Comments Regarding the Department’s

Third Remand Redetermination (Oct. 12, 2011), ECF No. 128.

II. DISCUSSION

The court exercises subject matter jurisdiction under section 201 of the Customs Courts

Act of 1980, 28 U.S.C. § 1581(c) (2006). The court must hold unlawful any determination,

finding, or conclusion found to be unsupported by substantial evidence on the record or

otherwise not in accordance with law. Tariff Act of 1930 (“Tariff Act”), § 516A, 19 U.S.C.

§ 1516a(b)(1)(B)(i) (2006).

For a Chinese producer such as Jinan Yipin, Commerce values labor expenses as a factor

of production according to section 773 of the Tariff Act, 19 U.S.C. § 1677b(c)(3). Commerce

must value factors of production using, “to the extent possible, the prices or costs of factors of

production in one or more market economy countries that are . . . at a level of economic

development comparable to that of the nonmarket economy country, and . . . significant

producers of comparable merchandise.” 19 U.S.C. § 1677b(c)(4). For the Final Results, Consol. Court No. 04-00240 Page 4

Commerce determined a surrogate value for Jinan Yipin’s labor expenses according to the then-

governing regulation, 19 C.F.R. § 351.408(c)(3), which required Commerce to use “regression-

based wage rates reflective of the observed relationship between wages and national income in

market economy countries.” Id.; Third Remand Redetermination 1-2. Dorbest concluded that

this regulation was inconsistent with the requirement in § 1677b(c)(4) that surrogate values be

based, to the extent possible, on data from countries that are at a level of economic development

comparable to that of the non-market economy country and that are significant producers of

comparable merchandise. Dorbest, 604 F.3d at 1371-72.

The Third Remand Redetermination abandoned the regression-based methodology and

valued Jinan Yipin’s labor expenses using certain “industry-specific labor cost data from India

that was available during the conduct of the underlying administrative review . . . .” Third

Remand Redetermination 5. These data, which Commerce added to the administrative record,

consisted of “Chapter 6A” industry-specific data produced by the International Labour

Organization for 2002 that pertain to the labor costs associated with the processing of fruits and

vegetables. Id. at 5-7. Using these data, the Third Remand Redetermination redetermined a

dumping margin of 1.77% for Jinan Yipin. Id. at 10.

III. CONCLUSION

After considering all submissions in this case and upon due deliberation, the court

sustains the Third Remand Redetermination. Judgment will enter accordingly.

/s/ Timothy C. Stanceu Timothy C. Stanceu Judge

Dated: June 5, 2012 New York, New York