Wuhan Bee Healthy Co. v. United States , 29 Ct. Int'l Trade 1275 ( 2005 )

SLIP OP. 05-142
UNITED STATES COURT OF INTERNATIONAL TRADE
______________________________
:
WUHAN BEE HEALTHY CO., LTD., :
:
Plaintiff, :
: Before: Richard K. Eaton, Judge
v. : Court No. 03-00806
:
UNITED STATES, :
:
Defendant, :
:
and :
:
SIOUX HONEY ASSOC. and :
AMERICAN HONEY PRODUCERS :
ASSOC., :
:
Def.-Intervenors. :
:
______________________________:
MEMORANDUM OPINION
[Commerce’s Final Results of Redetermination Pursuant to Remand
affirmed]
Dated: November 2, 2005
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP
(Mark E. Pardo, Adam M. Dambrov, and Paul G. Figueroa) for
plaintiff.
Peter D. Keisler, Assistant Attorney General, Civil
Division, United States Department of Justice; David M. Cohen,
Director, Commercial Litigation Branch, Civil Division, United
States Department of Justice; Jeanne E. Davidson, Deputy
Director, Commercial Litigation Branch, Civil Division, United
States Department of Justice (David S. Silverbrand) for
defendant.
Collier Shannon Scott, PLLC (Michael J. Coursey) for
defendant-intervenors.
Court No. 03-00806 Page 2
Eaton, Judge: On June 10, 2005, the court remanded to the
United States Department of Commerce (“Commerce” or the
“Department”) its determination regarding coal prices in Honey
from the People’s Republic of China, 68 Fed. Reg. 62,053 (ITA
Oct. 31, 2003) (final results) (“Final Determination”). See
Wuhan Bee Healthy Co., Ltd. v. United States, 29 CIT __, 374 F.
Supp. 2d 1299 (2005) (“Wuhan I”). On September 7, 2005, Commerce
timely released its Final Results of Redetermination Pursuant to
Remand (“Remand Results”). The court has jurisdiction pursuant
to 28 U.S.C. § 1581(c) (2000) and 19 U.S.C. § 1516a(a)(2)(B)(iii)
(2000). For the reasons set forth below, the court affirms
Commerce’s Remand Results.
STANDARD OF REVIEW
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. §1515a(b)(1)(B)(i). “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 existence of substantial evidence is determined “by
considering the record as a whole, including evidence that
Court No. 03-00806 Page 3
supports as well as evidence that ‘fairly detracts from the
substantiality of the evidence.’” Id. (citing Atl. Sugar, Ltd.
v. United States, 744 F.2d 1556, 1562 (Fed. Cir. 1984)). “As
long as the agency’s methodology and procedures are reasonable
means of effectuating the statutory purpose, and there is
substantial evidence in the record supporting the agency’s
conclusions, the court will not impose its own views as to the
sufficiency of the agency’s investigation or question the
agency’s methodology.” Ceramica Regiomontana, S.A. v. United
States, 10 CIT 399, 404–05, 636 F. Supp. 961, 966 (1986), aff’d
810 F.2d 1137 (Fed. Cir. 1987) (citing Chevron U.S.A. Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984); Abbott
v. Donovan, 6 CIT 92, 97, 570 F. Supp. 41, 47 (1983)).
DISCUSSION
In its Final Determination, Commerce valued coal using
Indian import values published in the Monthly Statistics of the
Foreign Trade of India (“MSFTI”), which included international
freight charges for shipping the coal to India. See Wuhan I, 29
CIT at __, 374 F. Supp. 2d at 1309–10. Plaintiff Wuhan Bee
Healthy Co., Ltd. (“Wuhan”) argued that Commerce should have used
domestic Indian coal prices, which are published in the TERI
Energy Data Directory and Yearbook for 2000/2001 (“Teri Data”).
See id. at __, 374 F. Supp. 2d at 1310. Commerce maintained that
Court No. 03-00806 Page 4
it specifically considered but rejected the Teri Data because it
was “derived from a single producer in India, CIL [Coal India
Ltd.].” Id. (internal citation omitted). In other words,
Commerce rejected the Teri Data for valuing coal because it
believed the data was unrepresentative of a country-wide price.
After reviewing the parties’ arguments, the Court in Wuhan I
found that
Commerce determined that the MSFTI data was the best
available information to value coal because “it is
quality, country-wide data specific to steam coal
prices imported into India during the [period of
review], and is representative of competitive market
prices.” Yet, there is no reason given as to why
imported coal provides the best surrogate value. In
addition, it appears that Wuhan is correct that many
regions of India are represented in the Teri Data.
Thus, Commerce has not demonstrated that the value used
is the best available information or that the Teri Data
is unrepresentative of competitive market prices
throughout India.
Id. at __, 374 F. Supp. 2d at 1310–11 (internal citation
omitted). On remand, the Court directed Commerce to provide an
explanation that reasonably supported its decision to use import
prices instead of domestic prices. Id. at 1311 (citing Hebei
Metals & Minerals Import & Export Corp. v. United States, 29 CIT
__, 366 F. Supp. 2d 1264, 1266 (2005)(ordering Commerce to either
“adhere to its conditional preference for domestic surrogate data
or . . . state that it is deviating from this practice and
provide a rational explanation for doing so.”)).
Court No. 03-00806 Page 5
In its Remand Results,1 Commerce explains that it conducted
independent research for its Final Results of Redetermination
Pursuant to Remand for Hebei Metals & Minerals Import & Export
Corp. v. United States (“Hebei Metals Remand”), which it issued
on July 20, 2005. Based on the results of that research,
Commerce determined that “the TERI data are the best data
available for valuing the coal input for purposes of Wuhan’s new
shipper review.” Remand Results at 7. Commerce explains that
the Teri Data
states that the prices in its database are obtained
directly from Coal India Limited, which produces more
than 80 percent of India’s coal. TERI further states
that the prices represent coal prices from Coal India
Limited’s eight subsidiaries located throughout India.
Although the Department has some concerns about the
monopolistic structure of the coal industry in India,
the Department determines that the TERI steam coal
pricing data are the best quality data because not only
are they published, publicly-available data, but also
because they are representative of the coal industry
throughout India. Thus, the TERI data, as they are
currently presented, are credible as a country-wide
source of data.
Id. at 8–9. Commerce found the steam coal values listed in the
Teri Data to be specific, as they are derived from actual sale
prices of steam coal in India, and it adjusted for inflation
where the Teri Data values were not contemporaneous with the
period of review.
1
It should be noted that Wuhan declined to file comments
on the Remand Results because the only issue addressed therein,
valuation of coal, was resolved to its satisfaction.
Court No. 03-00806 Page 6
Having reviewed Commerce’s research and its reasons for
selecting the Teri Data as the best source of data for valuing
coal, the court finds that Commerce has complied with the court’s
remand instructions and that its determination is supported by
substantial evidence and is otherwise in accordance with law.
CONCLUSION
For the foregoing reasons, Commerce’s Remand Results are
affirmed. Judgment shall be entered accordingly.
/s/ Richard K. Eaton
Richard K. Eaton
Dated: November 2, 2005
New York, New York