Wuhu Fenglian Co., Ltd. v. United States , 899 F. Supp. 2d 1355 ( 2013 )

Slip Op. 13–27
UNITED STATES COURT OF INTERNATIONAL TRADE
WUHU FENGLIAN CO., LTD., and
SUZHOU SHANDING HONEY
PRODUCT CO., LTD.,
Plaintiffs, Before: Gregory W. Carman, Judge
.v. Court No. 11-00045
UNITED STATES,
Defendant,
- and -
AMERICAN HONEY PRODUCERS
ASSOCIATION, and SIOUX HONEY
ASSOCIATION,
Defendant-Intervenors.
OPINION & ORDER
[Judgment will be entered sustaining the Department of Commerce’s redetermination
on remand to rescind Plaintiffs’ new shipper reviews.]
Dated: February 27, 2013
Yingchao Xiao, Lee & Xiao, of San Marino, CA for Plaintiffs.
Courtney S. McNamara, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for Defendant. With
her on the briefs were Stuart F. Delery, Assistant Attorney General, Jeanne E. Davidson,
Director, Reginald T. Blades, Jr., Assistant Director, and Sapna Sharma, Attorney,
United States Department of Commerce, of Counsel.
Court No. 11-00045 Page 2
Michael J. Coursey, R. Alan Luberda, and Benjamin Blase Caryl, Kelley Drye &
Warren LLP, of Washington, DC for Defendant-Intervenors.
Carman, Judge: Plaintiffs Wuhu Fenglian Co., Ltd. and Suzhou Shanding Honey
Product Co., Ltd (collectively “Plaintiffs”), exporters of honey from the People’s
Republic of China (“PRC”), challenge a redetermination decision by the U.S.
Department of Commerce (“Commerce”) following a remand from this Court. In the
Remand Redetermination, Commerce accepted into the administrative record certain
documents that Plaintiffs submitted, as required by the Court. Upon evaluation of the
record, including the new documents, Commerce determined to rescind antidumping
duty new shipper reviews requested by Plaintiffs. See Final Results of Redetermination
Pursuant to Court Remand (“Remand Redetermination”), ECF No. 82. The Court
sustains Commerce’s remand redetermination because it is supported by substantial
evidence on the record and is otherwise in accordance with law.
BACKGROUND
Plaintiffs requested new shipper reviews on honey from the People’s Republic of
China on February 4, 2010. Remand Redetermination at 2. Commerce published a
Preliminary Determination on September 10, 2010, rescinding the new shipper reviews
on the grounds that the sales made by Plaintiffs did not appear to be bona fide. Honey
From the People’s Republic of China: Preliminary Intent to Rescind New Shipper
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Reviews, 75 Fed. Reg. 55,307, 55,308 (Sep. 10, 2010) (“Preliminary Determination”).
Commerce’s Final Determination came to the same conclusion. Honey From the
People’s Republic of China: Final Results and Rescission of Antidumping Duty New
Shipper Reviews, 76 Fed. Reg. 4,289, 4,290 (Jan. 25, 2011) (“Final Determination”).
Plaintiffs then challenged the Final Determination by this lawsuit.
I. Remand to Commerce
On April 25, 2012, the Court issued Slip Op. 12-57, remanding the case to
Commerce for redetermination. ECF No. 80. In the remand opinion, the Court required
Commerce to accept certain documents from Plaintiffs that Commerce had initially
rejected. Plaintiffs had submitted a number of documents by way of rebutting certain
data from U.S. Customs and Border Protection (“CBP”) that was placed into the
administrative record by Commerce. Commerce rejected the rebuttal as untimely. In
the absence of any statutory or regulatory deadline for rebutting a filing by Commerce,
the Court held that Commerce had wrongly rejected the rebuttal, which had been
submitted only 20 days after Commerce’s administrative record filing and almost four
months before Commerce issued the final results. See Slip Op. 12-57 at 10–14. The
Court therefore required Commerce to accept the rebuttal materials and issue a remand
redetermination taking account of them. The Court declined, however, to require
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Commerce to supplement the remand record with certain factual information,
consisting of a protest lodged with CBP by an unrelated exporter of honey from the
PRC, which Plaintiffs did not submit during the new shipper review. See id. at 15–16.
II. Redetermination on Remand
On remand, Commerce noted that the rebuttal evidence submitted by Plaintiffs
contrasted with CBP data Commerce had placed in the record regarding imports of
honey from the PRC during the period of review (“POR”). In resolving the conflict in
the data, Commerce determined that Plaintiffs’ submission were not as reliable as the
CBP data, and therefore reached the same conclusion as in the Final Results: that
Plaintiffs’ sales were not bona fide and that Commerce would thus rescind the new
shipper reviews. Remand Redetermination at 2, 4-5.
A. Honey Export Statistics from PRC
Plaintiffs submitted honey export statistics published by the Ministry of
Commerce (“MOC”) of the PRC for May 2009, indicating that no honey was exported to
the United States that month. Id. at 5. According to Plaintiffs, this report shows the
CBP data to be inaccurate, since the CBP data showed entries of PRC honey into the
United States during May 2009. Id.Commerce stated that it has a routine method to resolve situations in which it
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faces “two conflicting data sources”: Commerce gives preferences to “primary data
sources, where the Department knows the methodology used to collect the data.” Id.
at 6.
Applying this analysis, Commerce determined that it would not rely on the PRC
honey report because the record lacked information as to how the PRC data was
collected and collated; by contrast, the CBP data contained “the actual entry
documentation for the shipment, including the Customs 7501 form, invoice, and bill of
lading.” Id. Commerce specifically noted that the record did not show the definition of
“honey” employed by the MOC, “which, alone, could explain why the PRC MOC data
indicate no exports.” Id. Commerce also noted that the record did not reveal whether
the PRC honey report was based on primary export documents, secondary trade
reports, or some other source or sources. Id. Finally, Commerce noted that “shipping
lag times” might account for the absence of exports in the honey report at a time when
the CBP data showed entries of honey from the PRC. Id.B. Website and Advertising Printouts from PRC Exporter
Second, Plaintiffs submitted printouts from the website and internet
advertisements of a certain Chinese honey exporter whose identity is Business Propriety
Information and who will therefore be referred to simply as the “Confidential
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Exporter.” Id. at 7. Sales into the United States by the Confidential Exporter were
reported in the CBP data that Commerce used in its bona fide analysis. Id. Plaintiffs
claim the web printouts and advertisements show that the Confidential Exporter did
not export to the United States during the relevant time period, and that as a result the
CBP data must be incorrect. Id.Commerce again applied its technique for resolving questions about the relative
reliability of conflicting documents. Commerce determined that no evidence showed
when the website printouts were created, whether they were ever updated (and, if so,
when), and whether the statements in the documents related to the POR for these new
shipper reviews. Id. As a result, Commerce determined that the website and
advertising printouts from the Confidential Exporter did not discredit the CBP data. Id.C. PIERS Data from United States Government
Third, Plaintiffs submitted data from the United States Government Port Import
Export Reporting System (“PIERS”) which, according to Plaintiffs, show that no honey
from the PRC was entered into the United States during May, June, and July 2009. Id.Commerce acknowledged that the PIERS data showed “no entries of honey from the
PRC to North America during May 2009.” Id. However, Commerce determined that
“without knowing the methodologies used to gather and analyze the PIERS data,” it
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could not be given as much weight as the CBP data. Id. at 8. Noting that the CBP data
contains entry documentation including the Customs 7501 form, invoice, and bill of
lading, Commerce determined that “something as simple as a difference in the
collection methodologies between the sources or the different level of specificity of the
underlying source of the PIERS data” could explain the discrepancy between the PIERS
and CBP data. Id. In this regard, Commerce noted more specifically that PIERS data
“are gathered from entries on ships’ manifests,” while the CBP data incorporated “a
variety of actual import documentation,” including the Customs entry paperwork that
determines the “legal description” of imported goods. Id. at 18. Having already
addressed the issue of conflicts between PIERS data and CBP data in other cases,1 and
having developed a policy of giving more weight to CBP data in the case of such a
1
This particular issue was already addressed in the Final Determination of
Commerce, issued prior to the Court’s remand in this case, and the accompanying
Issues and Decisions Memorandum. The Court’s remand did not invalidate this
analysis. Commerce also addressed the precise question of whether to rely upon PIERS
data or CBP data in the case of a conflict between the two in a 2007 determination,
Preliminary Recission of Antidumping Duty Administrative Review: Certain Hot-
Rolled Carbon Steel Flat Products from the People’s Republic of China, 72 Fed. Reg.
32,072 (June 11, 2007). In that case, Commerce articulated a policy of weighing CBP
data more heavily than conflicting PIERS data since the CBP data is based on primary
import documentation, including entry paperwork that provides the appropriate legal
classification of the goods contained in the entry, while PIERS data is simply drawn
from ship manifests. Remand Redetermination at 18; Defendant’s Response to
Plaintiff’s Comments upon Commerce’s Final Remand Redetermination at 17-18, ECF
No. 95.
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conflict, Commerce found that the conflicting PIERS data provided no reason to
abandon use of the CBP data in this instance. Id. at 8.
D. National Honey Reports from the USDA
Finally, Plaintiffs submitted National Honey Reports from the United States
Department of Agriculture (“USDA”) for December 2008, June and July 2009, and
September through November 2009. Id. The USDA National Honey Reports contained
information at variance with the CBP data as to the price and quantity of honey entered
into the United States from the PRC during the period of review; Plaintiffs sought to
undercut Commerce’s reliance on the CBP data by introducing the honey reports into
the record. Id. at 8-9. However, Commerce found the record devoid of evidence as to
the methodology by which the honey reports were collected. Id. Commerce also noted
that it was not even clear whether the data contained in the honey reports was related
to the relevant sales within the POR. Id. Commerce therefore determined that the
USDA honey reports could not be given as much weight as the CBP data, which it
decided to continue to rely upon.
In the end, then, Commerce determined that the CBP data was the most reliable
of the available data regarding honey imports from the PRC to the United States during
the POR, and therefore found no reason in the newly-submitted data to alter its analysis
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of whether Plaintiffs’ sales were bona fide. Consequently, Commerce determined again
that Plaintiffs’ sales were not bona fide and affirmed its recission of the new shipper
reviews.
JURISDICTION AND STANDARD OF REVIEW
The Court has jurisdiction over this case pursuant to 28 U.S.C. § 1581(c), and
19 U.S.C. §§ 1516a(a)(1), (a)(2)(B)(iii). In reviewing Commerce’s remand
redetermination, the Court will “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).
ANALYSIS
Plaintiffs raise three main critiques of Commerce’s Remand Redetermination.
First, Plaintiffs attack the procedural propriety of the Remand Redetermination,
contending that it is “unacceptably incomplete” owing to Commerce’s refusal on
remand to accept into the record the CBP Protest filed by an unrelated importer.
Comments on the Department of Commerce’s Final Results of the Redetermination
Pursuant to Court Remand (“Plaintiffs’ Comments”) at 3, ECF No. 85.
In a similar vein, Plaintiffs contend that the substance of the Remand
Redetermination is “unacceptably inaccurate” and therefore must be overturned
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because Commerce acted unfairly in failing to consider the contents of the rejected CBP
Protest. Id.
Plaintiffs also assert that, in any case, Commerce acted contrary to the weight of
the record evidence in finding that the PRC honey export data, website and advertising
printouts from the Confidential Exporter, PIERS data, and USDA honey reports were all
less reliable than the CBP data. Id. at 26-28.
The Court finds that each of these critiques fails to undermine the Remand
Redetermination for the reasons set forth in detail below.
I. Commerce Properly Refused to Accept the CBP Protest
Plaintiffs do not argue that they submitted the CBP Protest documents into the
record in a timely fashion. Plaintiffs instead offer several reasons why Commerce was
wrong to refuse, on remand, to reopen the record and accept the CBP Protest despite its
untimely submission.
Plaintiffs assert that Commerce “had a reasonable amount of time in which to
consider the information contained in the CBP Protest” because the Court gave
Commerce sixty days to submit its Remand Determination. Id. at 6. Plaintiffs also insist
that Commerce rejected the CBP Protest with no lawful basis, “as doing so unduly
hampered Commerce’s ability to accurately determine the dumping margins” and
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improperly substituted finality for accuracy. See id. at 7-10.
Plaintiffs also argue that the Court should apply a doctrine that would
constructively define the administrative record in this way: the CBP Protest, since it
was filed before another federal government agency, was therefore “a matter of federal
government record” that was “already in the government’s [i.e. Commerce’s]
possession,” putting Commerce “on judicial notice of the content and substance of the
CBP Protest.” Id. at 7. Plaintiffs eventually rise to what may be their most creative
expression of this argument, urging the Court that, “because the CBP Protest is a
byproduct of and pertains directly to the accuracy of the CBP data used by Commerce,
the substance of the CBP Protest is within, or at the very least an essential and
inseparable appurtenance of, the original administrative record.” Id. at 10.
(Presumably, the natural consequence of these last two arguments would be to redefine
the CBP Protest as being a part of the record already, although Plaintiffs leave that
deduction for the Court to reach on its own.)
In explaining why these arguments fail, it is appropriate to begin by pointing out
two relevant prior decisions in this case. On May 25, 2011, the Court entered an order
denying Plaintiffs’ First Motion to Stay. See ECF No. 10 (motion), ECF No. 28 (order).
Plaintiffs’ motion sought to delay the case until such time as a final decision was
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rendered on the CBP Protest. The Court indicated that it was denying the stay in part
“[u]pon consideration of . . . the responses in opposition filed by Defendant and
Defendant-Intervenor.” See Order, ECF No. 28. The opposition filings referenced in the
order focused almost entirely on the argument that Plaintiffs’ motion improperly
sought to stall the case until the CBP Protest was decided. See generally Defendant’s
Response in Opposition to Plaintiffs’ Motion to Stay, ECF No. 25; Defendant-
Intervenors’ Response in Opposition to Motion to Stay, ECF No. 26. Both defendant-
side parties argued that such a stay would function to surreptitiously introduce the
contents of the CBP Protest into the administrative record, which would be improper
because the CBP Protest was not filed until after Commerce’s final determination and
therefore was not before the Department when it rescinded Plaintiffs’ new shipper
reviews.
Second, the Court’s order remanding this case to Commerce for redetermination
incidentally disposed of a further attempt by Plaintiffs to introduce the CBP Protest into
the administrative record. See Plaintiffs’ Motion to Supplement Administrative Record,
ECF No. 73. The Court denied the motion, and also indicated that it would not require
Commerce to add the CBP Protest to the administrative record on remand. (See Slip-
Op. 12-57 at 15-16 (stating that the Court was “disinclined to obligate Commerce to
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accept or consider factual information that was not presented during the underlying
administrative proceeding”).)
For the third (and final) time, the Court now rejects Plaintiffs’ attempts to place
the CBP Protest at the center of this case. The Court finds that Commerce’s decision not
to reopen the administrative record on remand was a completely reasonable exercise of
its authority. As Commerce explained to Plaintiffs, reopening the record at the time
Plaintiffs’ request was filed would have hampered Commerce’s ability to complete the
remand proceeding in the time allotted by the Court, and Defendant-Intervenors would
not have had a fair chance to respond to the CBP Protest adequately. Defendant’s
Response to Plaintiff’s Comments upon Commerce’s Final Remand Redetermination
(“Defendant’s Response”) at 9, ECF No. 95.
Plaintiffs also urge the Court to misapply the “NTN / Timken doctrine,” which in
certain circumstances requires that the Department accept late factual submissions in
order to properly weigh the need for accuracy against the need for finality. See NTN
Bearing Corp. v. United States, 74 F.3d 1204, 1208 (Fed. Cir. 1995); see also Timken U.S.
Corp. v. United States, 434 F.3d 1345, 1353–54 (Fed. Cir. 2006). That doctrine is
inapplicable here because the CBP Protest is not the kind of untimely factual submission
that falls within the NTN / Timken doctrine, which “stress[es] that, at the preliminary
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results stage, Commerce abuses its discretion where it refuses to let a respondent
establish an accurate dumping margin by correcting mistakes in its response.” Fischer
S.A. Comercio, Industria and Agricultura v. United States, 34 CIT ___, ___, 700 F. Supp.
2d 1364, 1375 (2010). The doctrine is not as broad as Plaintiffs urge. It is limited to the
correction of mistakes in timely factual submissions to ensure an accurate assessment at
the final determination stage, which is inapplicable here. And in any case the doctrine
has never been extended to require Commerce to reopen the record in a relatively brief
remand redetermination in which the Court, rather than the trade laws, provides the
deadlines. The Court declines to extend the NTN / Timken doctrine in that manner
today.
As to Plaintiffs’ contentions that the CBP Protest should be considered to be
constructively within the administrative record due to the fact that it is tangentially
related to documents previously considered in the record before Commerce, Plaintiff
cites no authority for this concept, apart from using the legalese “judicial notice.”
However, the briefest of references to Black’s Law Dictionary reveals that judicial notice
involves “[a] court’s acceptance, for purposes of convenience and without requiring a
party’s proof, of a well-known and indisputable fact; the court’s power to accept such a
fact.” Black’s Law Dictionary, 9th Ed., at 923. A party may not invoke an inherent
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power of the Court, especially to assert rights against Commerce, much less to resolve a
contested matter such as the classification of entries in a CBP Protest. The Court also
rejects Plaintiffs’ notion that the Court may, essentially by fiat, interpret the
administrative record to include a protest filed after Commerce reached its final
determination on that record.
For all of these reasons, the Court concludes that Commerce acted appropriately
when it rejected the CBP Protest from the record on remand, and consequently upholds
that portion of the Remand Redetermination.
II. Commerce Correctly Declined to Consider the Contents of the CBP Protest
The Court also rejects Plaintiffs’ argument that Commerce reached an
improperly inaccurate result because it refused to examine the contents of the CBP
Protest. This point can be seen as moot given the Court’s decision that Commerce
properly rejected the CBP Protest from the remand record, but the Court believes it is
still appropriate to briefly examine this contention in the alternative.
Plaintiffs describe the purported relevance of the CBP Protest this way:
In a nutshell, an importer unrelated to Plaintiffs made entries of a product
it described as non-subject merchandise. CBP reclassified it as honey.
Commerce relied on the data from these entries in its unfavorable analyses
of the Plaintiffs’ U.S. sales. The unrelated importer subsequently filed an
official protest, arguing that their [sic] entries were not of honey, and
supporting their [sic] argument with laboratory analyses. The results of
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this protest are pending.
Plaintiffs’ Comments at 11-12.
The Court refuses to require that Commerce examine the merits of any CBP
Protest related to CBP data it wishes to use before it may rely on such CBP data in
determining the final results of a new shipper review. Such a rule would, as Commerce
rightly worries, either force Commerce to consider the content of protests and intrude
on the statutory authority of Customs, or endlessly delay new shipper reviews while
Commerce deferred to CBP and the courts to finalize classification questions.
Defendant’s Response at 10-11. The statutory presumption of correctness that attaches
to Customs’ classification decisions would also be weakened and, potentially, rendered
a nullity.
The Court immediately sees several significant practical concerns stemming from
such a precedent. Commerce would likely be prevented, in practice, from relying on
CBP data. Reliance on CBP data would always raise the potential that a future protest
filed after Commerce’s final determination would effectively undo the Commerce
proceeding, and require Commerce to reopen its proceeding and record pending (1) the
outcome of the protest before Customs, (2) any appeal of a denial by Customs to the
Court of International Trade, (3) the conclusion of any appeals of a CIT decision to the
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Court of Appeals for the Federal Circuit and the Supreme Court, and (4) the eventual
final legal settlement of all issues related to proper customs classification of the
involved goods. This would be a deeply problematic result.
Not only that, but the Court fears that such a rule could give importers who
sought a new shipper review a perverse ability to tamper with Commerce’s
proceedings. By protesting before Customs the classification of entries that formed the
basis of new shipper reviews that they initiated before Commerce, importers could
force Commerce into conflict with Customs, potentially obtain contradictory
determinations from the two agencies, and render the time limits on new shipper
reviews a virtual nullity.
Plaintiffs contend that, “[c]onsidering what the Plaintiffs stand to lose vis-a-vis
what can only be a minor and nonrecurring inconvenience to Commerce or CBP of
having to wait to wind up their procedures, . . . the minimum of fairness requires that
all involved parties at least wait for the results of the CBP Protest.” Plaintiffs’
Comments at 12. The Court disagrees for the reasons described above, and affirms
Commerce’s decision to decline to consider the contents of the CBP Protest in its
Remand Redetermination.
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III. Commerce’s Reliance on the CBP Data Rather Than Plaintiffs’ Submissions
The Court finds that Commerce properly considered the PRC honey export data,
website and advertising printouts from the Confidential Exporter, PIERS data, and
USDA honey reports that Plaintiffs’ submitted. Commerce’s decision that these sources
of data were all less reliable than the CBP data was supported by the record evidence
and otherwise in accordance with law, and is therefore affirmed.
A. Commerce Properly Found the CBP Data More Reliable than the PRC
Honey Export Data
Plaintiffs attack on Commerce for weighing the CBP data as more reliable than
the PRC honey export data fails because it is (1) based on assumptions that are not part
of the record and (2) adopts a backwards approach that Commerce should have the
burden of proving unreliability of record data, rather than Plaintiffs having a burden to
demonstrates the reliability of data they placed in the record. Commerce correctly
rejected these contentions, and the Court therefore affirms the agency’s decision to rely
on the CBP data over the PRC honey export data.
Plaintiffs begin by arguing that “Commerce was fully aware that the MOC is a
Chinese Government entity essentially equivalent to Commerce.” Plaintiffs’ Comments
at 15. Plaintiffs rely on “common knowledge” and (again) “judicial notice” to support
their assertion that the “MOC obtains its data directly from Chinese customs
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documentation.” Id. Plaintiffs do not cite (and the Court has not located) any evidence
in the record to establish the truth of these assertions. Plaintiffs also urge that it “was
improper for Commerce to treat China’s data with any less deference than it would the
data of other modern countries.” Id. “[T]he sensible assumption,” Plaintiffs contend,
“is that official PRC government data—which the MOC data is—is collected by PRC
government officials at the involved ports of export.” Id. at 17.
The remainder of Plaintiffs arguments on the PRC honey export data are
suggestions that Commerce failed in a duty to build an adequate record as to the data’s
reliability. Plaintiffs suggesting that “a minimal and reasonable inquiry by Commerce
would have revealed” the reliability of the data, id. at 15; that it was “unreasonable” for
Commerce to question whether the MOC data came from primary sources “when there
is nothing on the record to suggest as much,” id. at 17; and that “Commerce had ample
time in which to make basic inquiries in order to satisfy its concerns” about the MOC
data, id.
Plaintiffs miss the point with these arguments. The Court does not review
Commerce’s decisions to ensure that they are based on sensible assumptions, but rather
for evidentiary support in the administrative record and consistency with law.
19 U.S.C. § 1516a(b)(1), (B)(i) (the Court will “hold unlawful any determination,
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finding, or conclusion found . . . to be unsupported by substantial evidence on the
record, or otherwise not in accordance with law”). Indeed, any Commerce decision that
was based on assumptions—sensible or otherwise—would be very unlikely to survive a
substantial evidence challenge before this Court.
Plaintiffs also mistakenly press for the Court to impose a duty on Commerce to
assemble the administrative record of substantial evidence upon which its decisions
must be made. However, it is Plaintiffs—not Commerce—who bear the burden of
creating a record of relevant data in a timely fashion. Alloy Piping Prods., Inc. v.
United States, 26 CIT 330, 349-50, 201 F. Supp. 2d 1267, 1284 (2002) (“The general rule”
is that “the respondent bears the burden and responsibility of creating an accurate
record within the statutory timeline”). Plaintiffs cite no authority that would oblige
Commerce to gather, on behalf of Plaintiffs, information for the record to ensure that
Commerce has a complete understanding of the methodology behind Plaintiffs’
submitted data. Nor is the Court aware of any such authority.
The Court therefore finds that Commerce fulfilled its duty in regard to
examination of the MOC data: Commerce considered the nature of the data, the
available information as to the veracity and weight the data should be accorded, and
then made a reasonable, evidence-supported decision to rely instead on the CBP import
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data that conflicted with the MOC data. Remand Redetermination at 5-6, 10-13;
Defendant’s Response at 13-14. The Court affirms that determination as supported by
substantial evidence and in accordance with law.
B. Commerce Properly Found the CBP Data More Reliable than the
Website and Advertising Printouts from the Confidential Exporter
Plaintiffs have similarly thin grounds to attack Commerce’s treatment of the
printouts from the website of the Confidential Exporter. In the case of these documents,
Plaintiffs’ arguments are founded on the misapprehension that Commerce did “not give
the printouts of the web site of the PRC exporter consideration.” Plaintiffs’ Comments
at 20. Plaintiff cites instances in which Commerce has relied on similar documents and
quibbles with Commerce for interpreting ambiguous language in the documents as
suggesting that the Confidential Exporter might, in fact, export to the United States. Id.
at 18-19.
The Remand Redetermination makes it clear that Commerce did, in fact, consider
the printouts from the Confidential Exporter. Remand Redetermination at 14-16.
Although Plaintiffs wish the Court to substitute Plaintiffs’ weighing of those documents
for Commerce’s weighing, that is not the nature of the Court’s inquiry. Instead, the
Court finds that Commerce considered the documents and found no evidence in the
record from which it could conclude that they were more reliable than the CBP data
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with which they directly conflicted. Id. Therefore, the Court affirms Commerce’s
decision in the Remand Redetermination not to rely on the Confidential Exporter’s
website printouts over the CBP data.
C. Commerce’s Reliance on the CBP Data Instead of the PIERS Data Was
Supported by Substantial Evidence
In challenging the Department’s decision to accord more weight to the CBP data
than to the PIERS data, Plaintiffs assert that, despite a long history of relying on PIERS
data, Commerce departed from its practice and did not give Plaintiffs’ PIERS
submissions full consideration in this case. Plaintiffs’ Comments at 22 (“Commerce
knows the PIERS data is probative”), 23 (it is unreasonable for “Commerce not to give
the PIERS summaries full consideration”). Plaintiffs claim repeatedly that Commerce
has a long practice of obtaining and using PIERS data, is intimately familiar with the
collection methodologies underlying PIERS data, knows that it is as accurate as CBP
data, and accords it the same weight as CBP data. Id. at 20-23.
Plaintiffs also argue that, absent specific evidence that the PIERS data were
unreliable, Commerce should be forced to either rely on them or obtain the underlying
data to resolve any questions about their adequacy. Id. at 20 (“there is nothing in the
record to indicate that [PIERS data] is any less reliable or accurate than the similarly
collected CBP data”), 21 (Commerce, if “sincerely concerned about the corroboration
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provided by the entry documentation,” could have affirmatively obtained it).
Plaintiffs’ assertions are unconvincing. Plaintiffs have it backwards when they
suggest that Commerce must rely on the PIERS data absent evidence that it is
unreliable; in fact, Commerce must find substantial evidence to support any data upon
which it rests its decision. The Court therefore rejects this attack by Plaintiffs. The
Court also finds that Commerce gave full and careful consideration to the PIERS data.
Commerce explained that it found the CBP data more reliable because the CBP data was
drawn from a variety of entry documents, including CBP documents that determine the
legal description of merchandise contained in entries, while the PIERS data was
obtained only from ship manifests and did not have the same legal weight as the CBP
data. Remand Redetermination at 18. Commerce therefore reasonably applied its long-
standing policy of giving weight to CBP data over PIERS data in situations where the
data conflict. Id. Commerce explained that its reliance on PIERS data in past
proceedings never found it more reliable than conflicting CBP data. Id. at 17-18. Far
from failing to consider the PIERS data, Commerce fully considered it but came to a
conclusion that was not to Plaintiffs’ liking. However, the agency’s decision was
supported by substantial evidence in the record and is therefore affirmed.
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D. Commerce’s Reliance on the CBP Data Instead of the USDA Honey
Reports Was Also Supported by Substantial Evidence
Plaintiffs claim that the USDA honey reports reveal that the CBP data are flawed
as to price and quantity. Plaintiffs’ Comments at 24. In attacking Commerce’s decision
not to rely on the USDA honey reports, Plaintiffs contend that Commerce should be
“considered aware of the data collection methodology and content” of the USDA
reports since Commerce and the USDA are “each part of the same branch of the federal
government” and are therefore “parts of the same entity.” Id. at 23-24. From this basis,
Plaintiffs argue that Commerce refused to give the USDA honey reports “serious
consideration,” since it did not rely on them despite a lack of evidence in the record to
suggest that the USDA reports were flawed.
Again Plaintiffs mischaracterize Commerce’s determination. Commerce in fact
gave careful consideration to the honey reports. This is demonstrated by Commerce’s
decision not to rely on the reports because the record lacked evidence about the time
span during which the information was collected or the Harmonized Tariff Schedule
numbers employed in the reports. Remand Redetermination at 9. As a result,
Commerce was unable to tell whether the honey reports even related to the POR as
issue. Id. Commerce also points out again that it is Plaintiffs that bear the burden of
demonstrating the reliability of the USDA reports, not Commerce. Id. at 20-21;
Court No. 11-00045 Page 25
Defendant’s Response at 20. Given that Commerce closely evaluated the substantial
evidence in the record when determining that the USDA honey reports were not as
reliable as the CBP data, the Court affirms that decision.
E. Commerce’s Redetermination Is Supported by Totality of Evidence
Plaintiffs argue that the totality of the evidence overcame any presumption that
the CBP data were accurate. Plaintiffs’ Comments at 26-28. Since the CBP data
Commerce chose to rely upon conflicts with all other information on the record, goes
this argument, the agency’s “preference for and reliance on CBP data [became]
unreasonable.” Id. at 27. Plaintiffs urge the Court to overturn the redetermination
because all of the sources in the record “are consistent in that they all point to the same
conclusion, that the CBP data is wildly incorrect.” Id.
Plaintiffs overstate their argument. While each of the four sources of data
submitted by Plaintiffs conflicts with the CBP data in one way or another, that does not
mean that these four data sources agree with each other about the nature of imports of
PRC honey into the United States during the POR, or whether Plaintiffs’ imports were
bona fide. Commerce is not required to use perfect data, but to make careful
determinations based on the most reliable data in the record. The Court is satisfied that
Commerce has done so here. The Court rejects the notion that the mere presence of
Court No. 11-00045 Page 26
numerous less reliable data sets in the record can automatically impugn the reliability of
the best record evidence.
Plaintiffs’ remaining contentions have been examined and found without merit.
CONCLUSION
For the reasons set forth in this opinion, the Court finds that Commerce’s
Remand Redetermination is based upon substantial evidence in the record and is in
accordance with law, and it is therefore
ORDERED that the Remand Redetermination be, and hereby is, SUSTAINED.
/s/Gregory W. Carman
Gregory W. Carman, Judge
Dated: February 27, 2013
New York, New York