Jinfu Trading Co. v. United States ( 2008 )

Slip Op. 08-38
UNITED STATES COURT OF INTERNATIONAL TRADE
:
JINFU TRADING CO., LTD., :
:
Plaintiff, :
:
v. :
: Before: Richard K. Eaton, Judge
UNITED STATES, :
: Court No. 04-00597
Defendant, :
:
and :
:
AMERICAN HONEY PRODUCERS :
ASSOCIATION and SIOUX HONEY :
ASSOCIATION, :
:
Def.-Ints. :
:
OPINION
[United States Department of Commerce’s final results rescinding
plaintiff’s new shipper review sustained.]
Dated: April 4, 2008
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP (Bruce M.
Mitchell, Ned H. Marshak, and Elaine F. Wang), for plaintiff.
Jeffrey S. Bucholtz, Acting Assistant Attorney General; Jeanne E.
Davidson, Director, Commercial Litigation Branch, Civil Division,
United States Department of Justice; Reginald T. Blades Jr.,
Assistant Director, International Trade Section, Commercial
Litigation Branch, Civil Division, United States Department of
Justice; Jane C. Dempsey, Attorney, U.S. Department of Justice,
Civil Division, Commercial Litigation Branch; Office of the Chief
Counsel, Import Administration, United States Department of
Commerce (Mildred E. Steward), of counsel, for defendant.
Kelley Drye Collier Shannon (Michael J. Coursey and R. Alan
Luberda), for defendant-intervenors.
Court No. 04-00597 Page 2
Eaton, Judge: Before the court are the United States
Department of Commerce’s (“Commerce” or the “Department”) final
results of its remand redetermination pursuant to the court’s
order in Jinfu Trading Co., Ltd. v. United States, 31 CIT __,
Slip Op. 07-95 (June 13, 2007) (not reported in the Federal
Supplement) (“Jinfu II”), and the comments of plaintiff Jinfu
Trading Co., Ltd. (“Jinfu PRC”), and defendant-intervenors
American Honey Producers Association and Sioux Honey Association
responsive thereto. See Final Results of Redetermination
Pursuant to Court Remand (Dep’t of Commerce Oct. 9, 2007)
(“Remand Redetermination”); Pl.’s Comments Remand Redetermination
(“Pl.’s Comments”); Def.-Ints.’ Resp. to Remand Redetermination
(“Def.-Ints.’ Resp.”).
The central issue in this litigation is whether Jinfu PRC
was affiliated with either Yousheng Trading (U.S.A.) Co., Ltd.
(“Yousheng USA”) or its successor Jinfu Trading (U.S.A.) Co.,
Ltd. (“Jinfu USA”)1 on or before November 2, 2002.2 Plaintiff
1
For purposes of confidentiality, the court will employ the
same shorthand references used in Jinfu II. Specifically, Jinfu
USA’s sole employee is referred to as “Mr. A”; the chief
executive officer of Jinfu PRC as “CEO B”; the unaffiliated
United States buyer as “Customer C”; and the original owner of
what was then Yousheng USA as “Mr. D.” The attorney retained in
October 2002 to aid in the purported transfer of ownership of
Yousheng USA/Jinfu USA to CEO B is referred to as “Attorney E.”
2
Yousheng USA was incorporated on October 4, 2002, in
Washington State, and renamed Jinfu USA on November 12, 2002.
Therefore, to avoid any confusion, the court will refer to the
(continued...)
Court No. 04-00597 Page 3
has maintained that CEO B wholly owned Yousheng USA/Jinfu USA by
November 2, 2002, or, in the alternative, that CEO B exercised
operational control over Yousheng USA/Jinfu USA prior to that
date.
In Jinfu Trading Co., Ltd. v. United States, 30 CIT __, Slip
Op. 06-137 (Sept. 7, 2006) (not reported in the Federal
Supplement) (“Jinfu I”), the court considered whether Commerce’s
determination that Jinfu PRC was not affiliated——through either
ownership or control——with Yousheng USA/Jinfu USA on November 2,
2002 was supported by substantial evidence. The court sustained
the Department’s finding on the issue of ownership, but remanded
on the issue of control. See Jinfu I, 30 CIT at __, Slip Op. 06-
137 at 25, 32-33.
On remand, Commerce again determined that CEO B did not
control Yousheng USA/Jinfu USA at the relevant time. See Final
Results of Redetermination Pursuant to Remand (Dep’t of Commerce
Dec. 5, 2006) (“First Remand Redetermination”). Plaintiff
challenged this determination, and in Jinfu II, the court
remanded Commerce’s decision for the second time. See generally
Jinfu II, 31 CIT at __, Slip Op. 07-95 at 9-23. The court found
2
(...continued)
entity incorporated as Yousheng USA and subsequently renamed
Jinfu USA as “Yousheng USA/Jinfu USA,” except where it is
necessary to distinguish these entities’ sequential existence.
See Jinfu Trading Co., Ltd. v. United States, 30 CIT __, __, Slip
Op. 06-137 at 2 n.2 (Sept. 7, 2006) (not reported in the Federal
Supplement).
Court No. 04-00597 Page 4
that Commerce’s conclusions were not supported by substantial
evidence because of its failure to fully explain the evidence on
the record relating to the issue of control. Therefore, on
remand, Commerce was directed to: (1) consider the court’s
opinion and provide an explanation as to why the contents of
certain faxes between Mr. A and CEO B, if credible and reliable,
did not support a conclusion that CEO B controlled Yousheng
USA/Jinfu USA; and (2) reopen the record to allow plaintiff to
place evidence on the record concerning the issue of affiliation.
See Jinfu II, 31 CIT at __, Slip Op. 07-95 at 24. Specifically,
plaintiff was provided with an opportunity to submit evidence
concerning the authenticity of the disputed faxes, CEO B’s
involvement in Customer C’s pre-payment of the sales price for
the claimed new shipper sale, and the facts behind Mr. A’s
obtaining a loan from Customer C to finance Yousheng USA/Jinfu
USA transactions. Id. at __, Slip Op. 07-95 at 24.
On remand, Commerce reopened the record; plaintiff, however,
declined to present any new evidence. See Remand Redetermination
at 2. Commerce now offers two independent reasons for its
determination that CEO B did not control Yousheng USA/Jinfu USA:
(1) plaintiff is unable to establish that the faxes are
authentic; and (2) the record evidence clearly demonstrates Mr.
A’s independence in managing Yousheng USA/Jinfu USA. See Def.’s
Resp. Jinfu’s Comments Regarding Remand Redetermination (“Def.’s
Court No. 04-00597 Page 5
Resp.”) 7-12. Jurisdiction lies pursuant to 28 U.S.C. § 1581(c)
(2000) and 19 U.S.C. § 1516a(a)(2)(B)(iii). For the following
reasons, the Department’s Remand Redetermination is sustained.
BACKGROUND
The facts of this matter are contained in Jinfu I and Jinfu
II. The court now sets forth only those facts relevant to this
opinion.
Plaintiff seeks judicial review of the Department’s
rescission of its new shipper review for entries of honey from
the People’s Republic of China (“PRC”).3 See Honey from the PRC,
69 Fed. Reg. 64,029 (Dep’t of Commerce Nov. 3, 2004) (notice of
final results and final rescission, in part). Plaintiff sought
the new shipper review based on a transaction that took place on
November 2, 2002. On that date, Yousheng USA/Jinfu USA
consummated a sale of honey, acquired from Jinfu PRC, to Customer
C. Plaintiff contends that, because Yousheng USA/Jinfu USA and
Jinfu PRC were affiliated when the sale took place, the
3
A “new shipper review” involves a shipper that has not
previously exported particular subject merchandise, and thus has
been described as a proceeding where “Commerce is essentially
conducting a new antidumping review that is specific to a
particular producer [or exporter].” Tianjin Tiancheng Pharm.
Co., Ltd. v. United States, 29 CIT __, __, 366 F. Supp. 2d 1246,
1249 (2005).
Court No. 04-00597 Page 6
transaction constituted a new shipper sale.4
In its analysis, Commerce is guided by 19 C.F.R.
§ 351.214(b)(2)(iv)(C), which provides that a party seeking a new
shipper review must produce “[d]ocumentation establishing . . .
[t]he date of the first sale to an unaffiliated customer in the
United States . . . .” Before Commerce, plaintiff submitted
documentation to support its claim that the new shipper sale was
made by Jinfu PRC (via Yousheng USA/Jinfu USA) to Customer C on
November 2, 2002. Based on that documentation, Commerce
initiated the new shipper review. Upon concluding that the
documentation was insufficient to establish that Jinfu PRC was
affiliated with Yousheng USA/Jinfu USA as of that date, however,
Commerce rescinded the review. The Department took this action
because, absent affiliation, the sale to Customer C could not be
considered a sale by Jinfu PRC to Customer C. Jinfu I, 30 CIT at
__, Slip Op. 06-137 at 9-11.
In Jinfu I, plaintiff insisted that Commerce erred when it
concluded that CEO B did not own or control Yousheng USA/Jinfu
USA on November 2, 2002. After reviewing the evidence, the court
4
The question of affiliation is governed by 19 U.S.C.
§ 1677(33). The statute provides, in relevant part, that the
following persons are deemed “affiliated”: (E) “Any person
directly or indirectly owning [at least 5% of the voting shares
of a company]”; (F) “Two or more persons directly or indirectly
controlling, controlled by, or under common control with, any
person”; and, (G) “Any person who controls any person and such
other person.” 19 U.S.C. § 1677(33).
Court No. 04-00597 Page 7
agreed with Commerce that plaintiff had not established ownership
of Yousheng USA/Jinfu USA on the sale date. See Jinfu I, 30 CIT
at __, Slip Op. 06-137 at 25. The court, however, was
unconvinced by Commerce’s analysis on the issue of control in
light of Commerce’s failure to address record evidence that
appeared to demonstrate “that CEO B not only had the potential to
influence what was then Yousheng USA’s pricing decisions, but, in
fact, exercised that control . . . .” See id. at __, Slip Op.
06-137 at 28. The court was particularly concerned that Commerce
had not explained why it did not find affiliation based on an
exchange of faxes by which CEO B apparently authorized Mr. A to
consummate the relevant sale with Customer C. See id. at __,
Slip Op. 06-137 at 28-31. In remanding the matter to Commerce,
however, the Jinfu I Court did not direct Commerce to find that
Jinfu PRC and Yousheng USA were affiliated (by virtue of
control). Instead, Jinfu I instructed Commerce, if it did not
concur with the court’s findings, to “reopen the record to
provide plaintiff with an opportunity to . . . [submit] further
evidence with respect to affiliation and provide an explanation
of that evidence.” See id. at __, Slip Op. 06-137 at 32-33.5
5
In determining affiliation, Commerce is guided by its
regulations, promulgated under 19 U.S.C. § 1677(33), which
provide, in relevant part, that “[Commerce] will not find that
control exists . . . unless the relationship has the potential to
impact decisions concerning the production, pricing, or cost of
the subject merchandise.” 19 C.F.R. § 351.102(b).
Court No. 04-00597 Page 8
After this court’s initial remand, plaintiff submitted
additional evidence to Commerce concerning both the purported
purchase and affiliation. See generally Jinfu II, 31 CIT at __,
Slip Op. 07-95 at 15. Following consideration of plaintiff’s new
submissions, Commerce again found that “the record [did] not
support a finding that CEO B had control over Mr. A’s business
decisions, particularly those dealing with pricing.” Id. at __,
Slip Op. 07-95 at 9 (citations omitted).
Plaintiff then sought a further remand arguing that the
record evidence established CEO B’s control of Yousheng USA/Jinfu
USA at the relevant time. Plaintiff also claimed that Commerce
made a procedural error in issuing its redetermination without
giving plaintiff the opportunity to address the authenticity of
the faxes, and Mr. A’s apparent independence in dealing with
Customer C. See id. at __, Slip Op. 07-95 at 19.
Because the authenticity (distinct from the probative value)
of the faxes, and the circumstances surrounding Mr. A’s business
decisions, were first raised in Commerce’s draft remand
redetermination, the court remanded the matter again. See id. at
__, Slip Op. 07-95 at 22-23. The court issued this remand, in
part, because plaintiff had no notice of the prominent role that
the authenticity of the faxes would play in Commerce’s decision
until after the record was closed. See id. at __, Slip Op. 07-95
at 21-23. The court instructed Commerce to: (1) reopen the
Court No. 04-00597 Page 9
record to allow plaintiff to submit new evidence demonstrating
the authenticity of the faxes and the circumstances surrounding
Mr. A’s business decisions regarding Customer C; and (2) explain
why, if the faxes were shown to be genuine, they would not
demonstrate that CEO B had control over Yousheng USA/Jinfu USA’s
pricing decisions. Id. at __, Slip Op. 07-95 at 24.
In its second Remand Redetermination, Commerce reaffirmed
its earlier determination and further explained its conclusion
that CEO B did not control Yousheng USA/Jinfu USA at the relevant
time. Remand Redetermination at 13. Specifically, Commerce
found that Mr. A routinely made unilateral decisions affecting
Yousheng USA/Jinfu USA, that there is no undisputed evidence of
CEO B ever exerting authority over Mr. A, that the faxes’
authenticity had not been demonstrated, and that, even if shown
to be genuine, they would not evidence CEO B’s control. See
Def.’s Resp. 7-11 (citations omitted). Although Commerce gave
plaintiff the opportunity to dispute its conclusions with
additional evidence, plaintiff declined to do so. Remand
Redetermination at 2. Rather, before this court, plaintiff
reargues the issues of ownership and control, by highlighting the
same evidence it previously addressed and by bringing to the
attention of the court a recent decision of the Court of Appeals
for the Federal Circuit (the “Federal Circuit”). Pl.’s Comments
10-19.
Court No. 04-00597 Page 10
STANDARD OF REVIEW
The court reviews Commerce’s Remand Redetermination under
the substantial evidence test. See 19 U.S.C. § 1516a(b)(1)(B)(i)
(“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.”).
“Substantial evidence is ‘such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’” Huaiyin
Foreign Trade Corp. (30) v. United States, 322 F.3d 1369, 1374
(Fed. Cir. 2003) (quoting Consol. Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). The possibility of drawing two inconsistent
conclusions from the record will not prevent the agency
determination from being supported by substantial evidence. See
Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966).
Accordingly, the question before the court is not whether
the court agrees with the determination made by Commerce. Nippon
Steel Corp. v. United States, 458 F.3d 1345, 1352 (Fed. Cir.
2006). Rather, the court “must affirm [the Department’s]
determination if it is reasonable and supported by the record as
a whole, even if some evidence detracts from the [Department’s]
conclusion.” Id. (citations omitted).
DISCUSSION
There are two main issues presently before the court.
Court No. 04-00597 Page 11
First, the court must determine whether Commerce has adequately
explained and supported with substantial evidence its finding
that the faxes do not demonstrate CEO B’s control over Yousheng
USA/Jinfu USA as of November 2, 2002. Second, at plaintiff’s
request, the court will reconsider its previous holding on the
issue of ownership in light of the Federal Circuit’s recent
decision in Crawfish Processors Alliance v. United States, 477
F.3d 1375 (Fed. Cir. 2007).
I. Commerce’s Determination That CEO B Did Not Exercise
Control Over Yousheng USA/Jinfu USA Is Sustained
In Jinfu II, the court remanded this matter to Commerce with
instructions to “provide an explanation as to why the contents of
the faxes exchanged between Mr. A and CEO B, if credible and
reliable, do not support a conclusion that CEO B controlled Jinfu
USA.” Jinfu II, 31 CIT at __, Slip Op. 07-95 at 24. In
addressing this instruction, Commerce relies heavily on the
credibility and reliability of the faxes. Thus, Commerce
questions the faxes’ authenticity and further concludes that the
remaining evidence on the record, viewed in light of the
plaintiff’s overall credibility, does not support the conclusion
that CEO B influenced Yousheng USA/Jinfu USA’s pricing decisions.
Remand Redetermination at 7-8.
Commerce offers several reasons for doubting the faxes’
authenticity. First, the faxes lack the type of data that,
Court No. 04-00597 Page 12
according to Commerce, would normally indicate the date and time
of transmission. See Def.’s Resp. 9 (citing Remand
Redetermination at 8). In addition, although given the
opportunity to do so, plaintiff has not supplied a log entry or
date stamp for these faxes. For Commerce, the absence of any of
this evidence makes it impossible to conclude that they were sent
at all, or that they were sent at the time plaintiff claims. See
Remand Redetermination at 8. Notably, despite having sought the
opportunity to submit additional evidence of the faxes’
authenticity, plaintiff now asserts that “additional evidence is
not necessary at this time.” Pl.’s Comments 15.
For their part, defendant-intervenors note that other faxes
sent by Mr. A contain the information line “showing his name and
the date and time the facsimile was sent.” See Def.-Ints.’ Resp.
4 (citing Letter from Jinfu PRC to Commerce, Oct. 23, 2006, at
Ex. 22). Defendant-intervenors also note that the faxes at issue
were not provided to Commerce until late in the review process
and suggest that this untimeliness raises “the possibility that
the document was created after the fact for purposes of the
second review.” See Def.-Ints.’ Resp. 4-5. They further suggest
that this explains plaintiff’s failure to capitalize on the
opportunity to supply additional evidence authenticating the
faxes. See Def.-Ints.’ Resp. 4-5.
Further, Commerce insists that plaintiff’s submission of
Court No. 04-00597 Page 13
backdated documentation earlier in the investigation undermines
its credibility. See First Remand Redetermination at 10.
Commerce notes that, as part of its efforts to document that CEO
B owned Yousheng USA/Jinfu USA on November 2, 2002, plaintiff
submitted a backdated Certificate of Transfer of Shares, along
with supporting documentation, including amended articles of
incorporation and by-laws, and a receipt for legal services
preparing these documents, all of which were described by
Commerce as having “credibility problems.” See Jinfu II, 31 CIT
at __, Slip Op. 07-95 at 10 n. 6 (citations omitted); see also
Issues and Decision Memorandum for the Final Results and Final
Rescission, In Part, of the New Shipper Review of the Antidumping
Duty Order on Honey from the PRC (Dep’t of Commerce Oct. 25,
2004) Comments 1 and 2. For Commerce, this behavior is
reflective of plaintiff’s overall credibility and sufficient to
call into question the authenticity of the faxes, particularly
when there is no other evidence indicating that they were sent on
the date plaintiff claims or indeed that they were sent at all.
See Jinfu II, 31 CIT at __, Slip Op. 07-95 at 10 n. 6.
Commerce also argues that the nature of the relationship
between Mr. A and CEO B suggests that CEO B did not exercise
operational control over Yousheng USA/Jinfu USA prior to November
2, 2002. See Def.’s Resp. 9-10. In fact, apart from Mr. A’s
statements in his affidavit, the only documented authorization of
Court No. 04-00597 Page 14
any action taken by Mr. A is the disputed exchange of faxes. See
Jinfu II, 31 CIT at __, Slip Op. 07-95 at 15. On the other hand,
it is undisputed that Mr. A negotiated the price and terms of the
relevant sale with Customer C without the involvement of CEO B,
and that the merchandise was already in transit to Customer C’s
end-user at the time that the faxes were supposedly exchanged.
See Def.’s Resp. 8-9. In addition, Mr. A appears to have
accepted partial pre-payment of the relevant shipment and
arranged a loan from Customer C to Yousheng USA/Jinfu USA without
CEO B’s approval. See Jinfu II, 31 CIT at __, Slip Op. 07-95 at
12-13. Commerce interprets these facts to mean that the
transaction was already finalized when the faxes were purportedly
sent. From this conclusion, according to Commerce, it follows
that Mr. A acted unilaterally and without authorization when
making business decisions in consummating the sale. Def.’s Resp.
8-9.
As noted, despite being given the opportunity to do so,
plaintiff has failed to offer any evidence demonstrating when the
faxes were sent or whether they were sent at all. Commerce,
then, was not unreasonable in questioning the authenticity given
the timing of the submission and plaintiff’s previous submission
of fraudulent documentation in this matter. See U.S. Steel Group
v. United States, 96 F.3d 1352, 1357 (Fed. Cir. 1996) (“It is the
[Department’s] task to evaluate the evidence it collects during
Court No. 04-00597 Page 15
its investigation. Certain decisions, such as the weight to be
assigned a particular piece of evidence, lie at the core of that
evaluative process.”). It is clear that, absent the disputed
faxes, the weight of the evidence tends to indicate that Mr. A
acted alone in managing Yousheng USA/Jinfu USA. Accordingly,
Commerce’s determination that CEO B did not exercise control over
Mr. A at the time of the relevant sale is supported by
substantial evidence and is sustained.
II. Commerce’s Determination that CEO B Did Not Own
Yousheng USA/Jinfu USA on November 2, 2002 Is Sustained
The court now reconsiders plaintiff’s contention, that CEO B
owned Yousheng USA/Jinfu USA on the date of the purported new
shipper sale. This court has previously held “that Commerce was
not unreasonable in concluding that a company named Jinfu USA did
not exist on November 2, 2002, and that CEO B did not own Jinfu
USA or its predecessor Yousheng USA” until some later date.
Jinfu I, 30 CIT at __, Slip Op. 06-137 at 22. Plaintiff has
asked the court to revisit that holding in light of the Federal
Circuit’s recent decision in Crawfish Processors Alliance v.
United States, 477 F.3d 1375 (Fed. Cir. 2007) (“Crawfish
Processors”). See Pl.’s Comments 15-19.
The issue before the Court in Crawfish Processors concerned
the type of evidence that could be relied upon to provide
substantial evidence that a transfer of ownership had taken place
Court No. 04-00597 Page 16
sufficient to demonstrate affiliation. See Crawfish Processors,
477 F.3d at 1380-81. In that case, the party claiming
affiliation purchased stock in the other entity with a promissory
note committing the purchaser to pay the stock purchase price, in
merchandise, over a period of time. See id. at 1378. Commerce
rejected the purchaser’s affiliation claim, asserting that 19
U.S.C. § 1677(33) requires that a “transfer of cash or
merchandise” be fully effectuated within the period of review in
order to demonstrate ownership, and that this did not occur here.
See id. at 1380-81. The Federal Circuit rejected Commerce’s
requirement that payment be made within the period of review,
stating that “[t]he statute imposes no time requirement on
financial transactions showing affiliation.” Id. at 1381.
Plaintiff now argues that because the court’s previous
ruling on the question of ownership was based, in part, on the
fact that CEO B did not pay for his interest in Yousheng
USA/Jinfu USA until more than one year after the new shipper
sale, Crawfish Processors requires a finding that CEO B owned the
company on November 2, 2002. See Pl.’s Comments 17. The court
finds that plaintiff misconstrues the holding of Crawfish
Processors and overstates its application to the present matter.
The critical distinction between these cases is that the
petitioners in Crawfish Processors demonstrated that the transfer
of ownership itself took place notwithstanding the method of
Court No. 04-00597 Page 17
payment; here, plaintiff cannot demonstrate that CEO B acquired
Yousheng USA/Jinfu USA by November 2, 2002. To the contrary, the
record in this case demonstrates that CEO B failed to acquire
Yousheng USA/Jinfu USA prior to the November 2, 2002 sale. The
court has previously detailed six independent reasons in support
of this conclusion. See Jinfu I, 30 CIT at __, Slip Op. 06-137
at 22-25. They are that: (1) Yousheng USA was not renamed Jinfu
USA until at least November 8, 2002; (2) either Mr. A or Mr. D
owned Yousheng USA from its date of incorporation at least until
its name was changed to Jinfu USA; (3) the Certificate of
Transfer of Shares explicitly stated that it is to be “EFFECTIVE
UPON EXECUTION BY THE UNDERSIGNED” and that the execution took
place on December 30, 2003; (4) CEO B did not pay Mr. D the
consideration for the shares until more than a year after
November 2, 2002; (5) the portion of the November 18, 2002 Master
Application for Jinfu USA’s business license that asked if
Yousheng USA was owned, controlled or affiliated with another
entity was left blank; and (6) the tax return stating that Jinfu
USA was wholly owned by CEO B was dated June 13, 2003, unsigned,
and may never have been filed. See id. at __, Slip Op. 06-137 at
22-24. Even if the court were to “discount[] the importance of
the time when final payment was made,” as urged by plaintiff, it
still could not conclude that CEO B acquired Yousheng USA/Jinfu
USA prior to November 2, 2002 because there is no documentary
Court No. 04-00597 Page 18
evidence that the acquisition took place.
Plaintiff, however, continues to argue that a contract of
sale need not be in writing to be effective. See Pl.’s Comments
17-19. While this may be true, plaintiff has offered no reliable
evidence demonstrating when the contract to transfer ownership of
Yousheng USA/Jinfu USA was formed. Nor, for that matter, is
there any evidence that any claimed oral contract provided for
payment at a future date, an important element in the holding of
Crawfish Processors.
As previously noted in Jinfu I, all of the evidence
plaintiff has presented regarding CEO B’s ownership of Yousheng
USA/Jinfu USA is both equivocal and dated after November 2, 2002.
See Jinfu I, 30 CIT at __, Slip Op. 06-137 at 22. Neither the
holding of Crawfish Processors nor “basic principles of contract
law” can save plaintiff from its failure to produce convincing
evidence of when the transfer of ownership took place.
Therefore, the court continues to find that Commerce’s
determination that CEO B did not own Jinfu USA or its predecessor
Yousheng USA on November 2, 2002 was supported by substantial
evidence, and as such, must be sustained.
Court No. 04-00597 Page 19
CONCLUSION
Accordingly, the court finds that Commerce’s determination
that Jinfu PRC was not affiliated with Yousheng USA/Jinfu USA on
November 2, 2002 was supported by substantial evidence.
Therefore, the court sustains Commerce’s Remand Redetermination.
Judgment shall be entered accordingly.
/s/Richard K. Eaton
Richard K. Eaton
Dated: April 4, 2008
New York, New York