Hebei Golden Bird Trading Co., Ltd. v. United States

Slip Op. 17-86
UNITED STATES COURT OF INTERNATIONAL TRADE
HEBEI GOLDEN BIRD TRADING CO.,
LTD., JINXIANG RICHFAR FRUITS &
VEGETABLES CO., LTD., QINGDAO
LIANGHE INTERNATIONAL TRADE CO.,
LTD., SHANDONG CHENHE
INTERNATIONAL TRADING CO., LTD.,
and WEIFANG HONGQIAO
INTERNATIONAL LOGISTICS CO., LTD.,
Plaintiffs,
Before: Jane A. Restani, Judge
v.
Court No. 15-00182
UNITED STATES,
Defendant,
FRESH GARLIC PRODUCERS
ASSOCIATION, CHRISTOPHER RANCH,
L.L.C., THE GARLIC COMPANY, VALLEY
GARLIC, and VESSEY AND COMPANY,
INC.,
Defendant-Intervenors.
OPINION
[Commerce’s results of redetermination in antidumping periodic review are sustained.]
Dated: July 17, 2017
Robert T. Hume, Hume & Associates, LLC, of El Prado, NM, for plaintiffs.
Emma E. Bond, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, for defendant. With her on the brief were Chad A.
Readler, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T.
Blades, Jr., Assistant Director. Of counsel on the brief was Khalil N. Gharbieh, Attorney, Office
of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce.
Court No. 15-00182 Page 2
Michael J. Coursey, John M. Herrmann, II, and Joshua R. Morey, Kelley Drye & Warren,
LLP, of Washington, DC, for defendant-intervenors.
Restani, Judge: Before the court is the U.S. Department of Commerce (“Commerce”)’s
Final Redetermination Pursuant to Court Remand Order, ECF No. 74-1 (“Remand Results”) 1
concerning the nineteenth periodic administrative review of the antidumping (“AD”) duty order
on fresh garlic from the People’s Republic of China (“PRC”). See Antidumping Duty Order:
Fresh Garlic from the People’s Republic of China, 59 Fed. Reg. 59,209 (Dep’t Commerce Nov.
16, 1994). The court previously remanded to Commerce the issue of whether mandatory
respondent Hebei Golden Bird Trading Co., Ltd. (“Golden Bird”) is eligible for a separate rate.
Shenzhen Xinboda Industrial Co. v. United States, 180 F. Supp. 3d 1305, 1324 (CIT 2016)
(“Xinboda”). For the reasons stated below, Commerce’s Remand Results finding Golden Bird is
not entitled to separate rate status are sustained.
BACKGROUND
The court presumes familiarity with the facts of the case as discussed in Xinboda, 180 F.
Supp. 3d at 1308–12. For convenience, the facts relevant to this stage of the proceeding are
summarized here. Following contestation by the parties of Commerce’s original results, the
court remanded the case to Commerce. Id. at 1324; see also Fresh Garlic from the People’s
Republic of China: Final Results and Partial Rescission of the 19th Antidumping Duty
Administrative Review; 2012-2013, 80 Fed. Reg. 34,141 (Dep’t Commerce June 15, 2015)
1
Although Commerce issued its Remand Results in consolidated court number 15-00179, the
consolidated action has since been severed, with the issues in each complaint being considered
separately. See Order, July 12, 2017, ECF No. 85. Accordingly, all electronic case filing
(“ECF”) numbers refer to docket for consolidated court number 15-00179, unless otherwise
indicated.
Court No. 15-00182 Page 3
(“Final Results”). The court ruled that Commerce’s decision that Golden Bird lacked
independence from government control such that it was not entitled to a separate rate was
unsupported by substantial evidence. Xinboda, 180 F. Supp. 3d at 1315–17.
In its Final Results, Commerce disregarded Golden Bird’s separate rate information and
applied the PRC-wide rate to Golden Bird as a total adverse facts available (“AFA”) rate 2
because it found that Golden Bird’s questionnaire responses were not credible due to its failure
to cooperate in providing certain Chinese Export Declaration Forms (“export declarations”) and
China Inspection Quality Bureau inspection certificates (“Phyto-sanitary certificates”) requested
by Commerce. Id. at 1311. The court sustained Commerce’s application of total AFA because
Golden Bird failed to act to the best of its ability by not furnishing the export declarations, which
Golden Bird was required to maintain under Chinese law and were necessary for Commerce to
substantiate Golden Bird’s export volume. Id. at 1314–15. But, in reasoning that a
determination of separate rate status is a distinct inquiry from application of total AFA, the court
held that Commerce’s treatment of Golden Bird as part of a PRC-wide entity due to its
determination regarding the unreliability of Golden Bird’s sales data was not supported by
substantial evidence. Id. at 1316–17. The court noted that a mere finding that sales data is
“unreliable” did not justify a wholesale rejection of Golden Bird’s submissions where
2
Although not defined by statute, the term “total AFA” refers to Commerce’s use of the facts
otherwise available provision and the adverse inferences provision of 19 U.S.C. § 1677e to arrive
at a total replacement margin. Commerce can use “facts otherwise available” in reaching an AD
duty determination when necessary information is not available, or when an interested party
withholds or fails to timely submit requested information or significantly impedes a proceeding.
19 U.S.C. § 1677e(a). Pursuant to 19 U.S.C. § 1677e(b)(1)(A), if Commerce finds that a party
“has failed to cooperate by not acting to the best of its ability” to comply with its request for
information, Commerce may reach its determination by using “an inference that is adverse to the
interests of that party in selecting from among the facts otherwise available.”
Court No. 15-00182 Page 4
“extraordinary findings of bad faith and fraud . . . were not made.” Id. at 1317 n.12. Although
the court declined to decide how a finding of bad faith or fraud might impact the case, it stated
that if Commerce “made an explicit finding that Golden Bird was engaged in . . . export
funneling activities . . . based on record evidence” the finding “likely could be considered in
selecting a total AFA rate for Golden Bird.” Id. at 1317 nn.12–13. Were Commerce to make
such a finding, the court noted “it may be appropriate . . . for Commerce to select a separate rate
incorporating the PRC-wide rate, to deter this type of non-compliance.” Id. at 1317 n.13. The
court, however, did not preclude Commerce from denying Golden Bird separate rate status.
Rather, it remanded the matter to Commerce to reconsider Golden Bird’s eligibility for a
separate rate, and ordered that Commerce, as it had previously, “may not rely on a finding of
unreliable sales data.” Id. at 1324. More was required.
Upon remand, Commerce reconsidered Golden Bird’s eligibility for a separate rate and
determined that it remains ineligible. Remand Results at 1. In its remand proceedings,
Commerce reopened the record of the nineteenth administrative review to consider further
evidence submitted in the twenty-first review of the same AD order by Zhengzhou Harmoni
Spice Co., Ltd. (“Harmoni”) regarding alleged duty evasion by Golden Bird, and it allowed
interested parties to submit information and comments. Id. at 9; Placing Docs. on the R. of the
Nineteenth Antidumping Duty Administrative Review of Fresh Garlic from the People’s
Republic of China at 1–2, PD 1 (Dec. 20, 2016) (“Doc. Placement Mem.”). Harmoni’s letter
alleged that Golden Bird engaged in an extensive export funneling scheme from the seventeenth
through the nineteenth periods of review (“PORs”) and misrepresented the nature of its
ownership to Commerce. Remand Results at 10. Harmoni attached to the letter a sworn
Court No. 15-00182 Page 5
declaration and associated evidence from the owner of a U.S. garlic distributor that claimed to
purchase garlic from Golden Bird from 2010 to 2012 at a zero or near-zero rate. Id. at 10, 12;
Doc. Placing Mem. at Attachs. 1–2 (hereinafter “Harmoni Fraud Allegation”). Commerce also
explicitly considered the Fresh Garlic Producers Association (“FGPA”)’s submission of General
Administration of Customs of the PRC (“GACC”) data, already on the record of this nineteenth
POR, which shows a significant discrepancy between what Golden Bird reported to GACC and
to U.S. Customs and Border Protection (“Customs”) during the seventeenth through the
nineteenth PORs. Remand Results at 3–4, 18–21.
After reviewing comments in response to the Harmoni Fraud Allegation, Commerce
concluded that Golden Bird engaged in an extensive AD duty evasion scheme, in which it acted
as a “service agent” for other Chinese companies subject to the PRC-wide rate to claim Golden
Bird’s lower rate. Id. at 1. Commerce relied on a substantial divergence in export and import
volume, as evidenced by the GACC export quantity and Customs import quantity data, to
support the conclusion that Golden Bird was apparently funneling the exports of other Chinese
exporters. Id. at 3–4, 18–21. Commerce determined that “approximately sixty percent of all
entries during the period of review were exported by companies subject to the PRC-wide cash
deposit rate, but entered at a much lower rate or zero rate, including Golden Bird’s.” Id. at 1.
Commerce noted that Golden Bird was still unable to provide more than a fraction of the export
declarations and Phyto-sanitary certificates Commerce requested to determine whether Golden
Bird was the exporter and that Golden Bird offered no explanation for the discrepancy in the
GACC and Customs data. Id. at 4–5, 17. Citing the Harmoni Fraud Allegation and declaration
Court No. 15-00182 Page 6
that Commerce partially corroborated, 3 Commerce determined that Golden Bird misrepresented
its export volume and the nature of its ownership and operations to Commerce in bad faith and
perpetrated fraud on the proceeding. Id. at 21, 24. Commerce noted that the record evidence
suggested that Golden Bird misrepresented matters relating to corporate control during the POR,
but Commerce stated it was unable to corroborate all aspects of the allegations due to resource
constraints and “therefore, [did] not draw[] specific conclusions” as to corporate control. Id. at
21, 25–26. 4 Commerce, however, did reason that it was unable to determine which entities
controlled specific exports because a majority of Golden Bird’s purported exports were actually
those of other Chinese exporters subject to the PRC-wide rate. Id. at 25–26. Commerce thus
explained that Golden Bird’s misrepresentations were pervasive, which it states justifies its
rejection of Golden Bird’s separate rate submissions as unreliable and incomplete, its finding that
Golden Bird failed to cooperate, and its determination that Golden Bird was part of the PRC-
wide entity. Id. at 1–2, 19, 24–25.
Golden Bird challenges Commerce’s finding that it engaged in fraud and the consequent
application of the PRC-wide rate because it alleges Commerce improperly considered unreliable
3
Commerce noted in its Remand Results that its analysis of the declarant’s testimony and
documents rely “only on . . . specific, corroborated information.” Remand Results at 34.
Commerce states that it verified specific, proprietary information provided by the declarant by
comparing it to information obtained by Customs. Id. at 21, 24–25.
4
Commerce suggested, but did not conclude, that Golden Bird was owned by Messrs. Bai and
Wang during the POR, and that therefore Golden Bird misrepresented its ownership to
Commerce. Remand Results at 10–11, 21. Such a finding implicating corporate ownership and
control would have gone to the heart of separate rate eligibility. Commerce nonetheless relied on
substantial evidence to support its determination that Golden Bird is ineligible for a separate rate
because the evidence shows that Golden Bird likely funneled the exports of companies subject to
the PRC-wide rate, as explained infra.
Court No. 15-00182 Page 7
and biased evidence, specifically the Harmoni Fraud Allegation and the supporting declaration,
even though those documents were originally submitted on the record of a different review.
Cmts. on Commerce Department’s Final Results of Redetermination Pursuant to Remand 12–13,
ECF No. 77 (“Golden Bird Cmts.”). Golden Bird also argues that Commerce infringed on its
Fifth Amendment due process rights and abused the discretion applicable to the administrative
protective order (“APO”) in this case when it denied Golden Bird access to and sufficient
opportunity to respond to portions of the new information because Commerce improperly double
bracketed 5 certain information and accepted hearsay statements made in the supporting
declaration. Id. at 13–17. Golden Bird requests that the court remand to Commerce with
instructions either to allow it a full opportunity to review the double-bracketed information and
respond, or, alternatively, to remove the Harmoni Fraud Allegation from the record. 6 Id. at 1–2,
5
Pursuant to 19 C.F.R. § 351.304(b)(2), parties may identify information in submissions to
Commerce as non-releasable even under an APO by identifying such information within double
brackets, rather than single brackets, if there is a “clear and compelling need” to withhold the
information.
6
In addition, Golden Bird asks the court to take judicial notice of a separate district court case in
which Harmoni unsuccessfully brought several claims against other Chinese exporters, including
allegations of fraud using undisclosed declarants. Golden Bird Cmts. at 5; see also id. at Exs. 5–
7. It also submits various exhibits not on the administrative record that are related to court and
administrative filings and decisions concerning other reviews of the AD order on fresh garlic
from the PRC. See id. at Exs. 10–11, 13–15. The government and FGPA request that the court
strike Golden Bird’s Exhibits 5–7, 10–11, and 13–15 because they were not submitted on the
administrative record of this review. Def.’s Resp. to Cmts. Regarding Remand Redetermination
& Mot. to Strike Extra-Record Exs. 9–13, ECF No. 82 (“Gov’t Resp.”); Def. Intrvnrs.’ Resp. to
Cmts. on Remand Results 1, 4–6, ECF No. 84 (“FGPA Resp.”).
Federal Rule of Evidence 201 states that the court, after a request from a party, must take
judicial notice of an adjudicative fact that is “generally known” or that “can be accurately and
readily determined from sources whose accuracy cannot reasonably be questioned.” See also 28
U.S.C. § 2641(a) (“[T]he Federal Rules of Evidence shall apply to all civil actions in the Court of
(continued . . .)
Court No. 15-00182 Page 8
12–13.
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2012). The court will sustain
Commerce’s determination in an administrative review unless it is “unsupported by substantial
evidence on the record, or otherwise not in accordance with law.” 19 U.S.C.
§ 1581a(b)(1)(B)(i).
DISCUSSION
I. Consideration of the Harmoni Fraud Allegation
Commerce generally has the inherent authority to reopen the record of an administrative
AD duty review and reconsider its decision, subject to certain limitations not applicable here.
Tokyo Kikai Seisakusho, Ltd. v. United States, 529 F.3d 1352, 1360 (Fed. Cir. 2008).
Commerce may exercise its authority to reopen in certain situations, such as when “newly
revealed information ‘raised questions’ about the original proceedings,” “after-discovered fraud
‘is alleged,’” or “Commerce wishes ‘to consider’ new allegations.” Ad Hoc Shrimp Trade
Action Comm. v. United States, 882 F. Supp. 2d 1377, 1380 (CIT 2013) (first quoting Tokyo
Kikai, 529 F.3d at 1360–61; then quoting Home Prods. Int’l, Inc. v. United States, 633 F.3d
1369, 1377 (Fed. Cir. 2011)). This power to reopen and reconsider is especially important when
Commerce seeks “to protect the integrity of its own proceedings from fraud.” Tokyo Kikai, 529
F.3d at 1361; see also US Magnesium LLC v. United States, 895 F. Supp. 2d 1319, 1325 (CIT
International Trade.”); Murakami v. United States, 398 F.3d 1342, 1355 (Fed. Cir. 2005).
Golden Bird’s request for judicial notice is not specific to which adjudicative facts in the eight
exhibits provided Golden Bird would like the court to notice. Instead, Golden Bird’s request
appears to be an improper attempt to supplement the record, and, accordingly, the court grants
the government’s request to strike the exhibits for their factual content.
Court No. 15-00182 Page 9
2013).
Commerce acted within the bounds of its discretion in considering evidence of fraud
initially placed on the record of the present remand proceedings from the twenty-first review.
Harmoni’s allegations were first filed after the underlying Final Results in this case had been
published. Remand Results at 9–10. Here, Commerce rightly considered the new prima facie
evidence that Golden Bird engaged in an extensive fraudulent scheme that impeached the
reliability of its separate rate submissions, placed the allegations on the remand record of the
present review, and then offered Golden Bird the opportunity to rebut those allegations. 7 Id. at
1–2, 28; see also 19 C.F.R. § 351.301(c)(4) (“[Commerce] may place factual information on the
record of the proceeding at any time. An interested party is permitted one opportunity to correct
factual information placed on the record of the proceeding by [Commerce] . . . .”). Indeed,
Commerce exercised its authority to reconsider the Final Results “to protect the integrity of its
own proceedings from fraud,” a situation in which Commerce’s “power to reconsider is even
more fundamental.” Tokyo Kikai, 529 F.3d at 1361. In addition, Commerce properly adhered to
the scope of the court’s remand, recognizing that the court stated that Commerce could make an
explicit finding that Golden Bird engaged in fraud and that such a determination might bear on
any decision to disregard Golden Bird’s separate rate submissions. Remand Results at 9, 35;
Xinboda, 180 F. Supp. 3d at 1317 n.13. Thus, Golden Bird’s argument that it was improper for
7
Golden Bird takes issue with Commerce’s statement that Golden Bird had been aware of the
Harmoni Fraud Allegation since the time it was filed on the record of the twenty-first
administrative review, arguing that it was not a party to that review. Golden Bird Cmts. at 12.
Regardless of when Golden Bird learned of the allegations, Commerce correctly noted that
Golden Bird had two opportunities to substantively respond to the evidence in the remand
proceedings of this review but failed to take advantage of that opportunity, leaving the
allegations nearly entirely unrebutted. Remand Results at 29.
Court No. 15-00182 Page 10
Commerce to place and consider evidence submitted in the twenty-first review on the record of
the nineteenth review does not carry the day. See Golden Bird Cmts. at 12–13.
Furthermore, Commerce’s determination that Golden Bird engaged in fraud and its
subsequent assignment of the PRC-wide rate is supported by substantial evidence. Commerce
stated that it relied on only corroborated information from the Harmoni Fraud Allegation and
reasoned that the fact that the declaration was sworn under penalty of perjury supported the
declaration’s reliability. Remand Results at 10, 34. Its corroboration of the Harmoni Fraud
Allegation and declaration included verifying “specific and proprietary shipment details provided
by the declarant,” such as bill of lading numbers, shipping dates, quantities, and container
numbers, with information obtained from Customs. Id. at 13–14, 21, 23–25; see also Def.’s
Resp. to Cmts. Regarding Remand Redetermination & Mot. to Strike Extra-Record Exs. 19–21,
ECF No. 82 (“Gov’t Resp.”). Commerce also corroborated the Harmoni Fraud Allegation with
the significant and unrebutted discrepancies in the GACC and Customs data, which suggested
that Golden Bird fraudulently funneled the exports of other Chinese exporters subject to the
PRC-wide rate, resulting in $141.6 million in evaded AD cash deposits from the seventeenth
through nineteenth PORs. Remand Results at 10, 18; see Ad Hoc Shrimp Trade Action Comm.
v. United States, 925 F. Supp. 2d 1315, 1321–23 (CIT 2013) (denying respondent separate rate
status because respondent’s withholding and misrepresentation of its corporate structure and
affiliations which Commerce corroborated with public registration documents impugned the
credibility of its separate rate submissions). Based on this evidence, Commerce concluded that,
at minimum, more than half of Golden Bird’s exports were actually controlled by companies not
found to be independent of the PRC-wide entity, that it would be impossible to determine which
Court No. 15-00182 Page 11
exports it did control, and that its separate rate submission is therefore substantially incomplete.
See Remand Results at 19–20, 25–26. Because Commerce found that most of Golden Bird’s
exports are actually controlled by companies that received the PRC-wide rate and estimated its
funneling activities to involve at minimum about one-third of the total export volume from
companies subject to the PRC-wide rate, its determination that Golden Bird is ineligible for a
separate rate is both reasonable and supported as many of Golden Bird’s alleged exports were
apparently actually controlled by PRC entities. Id. at 19–20. Commerce provided Golden Bird
two opportunities to rebut the Harmoni Fraud Allegation and the GACC data discrepancy, but
Golden Bird provided no substantive comments during the remand proceedings. Id. at 29.
Consequently, Golden Bird’s bare assertions that the Harmoni Fraud Allegation is unreliable fail
because, again, Golden Bird has not challenged Commerce’s specific corroboration of the
detailed allegations on which Commerce relies.
Commerce complied with the court’s remand instructions to reevaluate Golden Bird’s
eligibility for a separate rate, making an explicit finding of fraud based on substantial evidence
that it lawfully considered. Because Commerce’s finding of fraud impugned Golden Bird’s
separate rate submissions, such as ownership and control over its export activities, Commerce’s
determination that Golden Bird is ineligible for a separate rate was supported by substantial
evidence. See id. at 10, 21, 25–26.
II. Procedural Due Process and Access to Proprietary Information
“[A]n importer may be entitled to procedural due process regarding the resolution of
disputed facts involved in a case of foreign commerce when the importer faces a deprivation of
‘life, liberty, or property’ by the Federal Government.” NEC Corp. v. United States, 151 F.3d
Court No. 15-00182 Page 12
1361, 1370 (Fed. Cir. 1998); see U.S. Const. amend. V; Buttfield v. Stranahan, 192 U.S. 470,
492–93 (1904). When such deprivation occurs, the Constitution guarantees the right to be heard.
NEC Corp., 151 F.3d at 1370.
Furthermore, by statute, Commerce is barred from disclosing proprietary information it
receives without the consent of the party that submitted the information. 19 U.S.C.
§ 1677f(b)(1)(A). A party may submit proprietary information either in single brackets, which is
then disclosed to interested parties under an APO, or in double brackets, which may not be
released under an APO. See Carpenter Tech. Corp. v. United States, 34 CIT 1482, 1485 (2010);
see also 19 C.F.R. § 351.304(b)(2). Commerce may lawfully withhold specific information in
proceedings from interested parties under an APO, i.e., double-bracketed information, when
there is a “clear and compelling need” in situations in which “substantial and irreparable
financial or physical harm may result from disclosure.” Allied Tube & Conduit Corp. v. United
States, 898 F.2d. 780, 786 (Fed. Cir. 1990) (quoting H.R. Conf. Rep. No. 100–576, 100th Cong.
2nd Sess. 623 (1988), reprinted in 1988 U.S. Code Cong. & Admin. News 1656); see 19 U.S.C.
§ 1677f(c)(1)(A).
Golden Bird’s generalized procedural due process allegations fail. Golden Bird merely
concludes that Commerce deprived it of “life, liberty, or property” in denying it access to
“statements that specifically referred to [Golden Bird]” without ever specifically identifying any
such deprivation. Golden Bird Cmts. at 14. Although Golden Bird claims that the allegations
are criminal in nature and that Commerce’s finding of fraud might impact a separate Racketeer
Influenced and Corrupt Organization Act (“RICO”) case filed in a California district court,
Golden Bird fails to identify how or why Commerce denied it due process of law in the civil
Court No. 15-00182 Page 13
administrative proceedings at issue, which are subject to different standards and principles of
judicial review. See Max Fortune Indus. Ltd. v. United States, 853 F. Supp. 2d 1258, 1266 (CIT
2012) (“[Plaintiff] cites to no statutory or regulatory authority to support its proposition that it
has a ‘right to confront its accuser,’ and this Court declines [plaintiff’s] plea to read such a right
into an administrative proceeding.” (internal citation omitted)). Instead, the court will construe
Golden Bird’s constitutional due process challenges as claims that Commerce violated the
governing statute by failing to disclose certain proprietary information to Golden Bird so that
Golden Bird could have a meaningful opportunity to contest the allegations.
Commerce’s decision to protect the identity of the declarant was reasonable and
comported with Commerce’s obligations pursuant to the statute and its regulations. As the
double-bracketed information was limited to the identifying information of the declarant, it does
not constitute withholding of “wholesale allegations” such that the bracketing might violate
Golden Bird’s right to meaningfully comment. See Carpenter Tech. Corp., 34 CIT at 1486. The
general allegations and structure of the fraud were made public, and Golden Bird’s counsel had
access to much of the substantive information pertaining to the fraud scheme that was designated
as releasable under the APO. Remand Results at 33. Commerce reasonably explained that it
double bracketed the declarant’s identifying information and kept certain statements confidential
based on the declaration’s “highly damaging allegations” relating to a large number of Chinese
exporters, Harmoni’s claim that the safety of the declarant and the safety of its family in China
were in danger, the extortion attempt referenced in the Harmoni Fraud Allegation, and the filing
of the separate RICO action. Id. at 11, 32–33; see also Max Fortune, 853 F. Supp. 2d at 1266
(upholding Commerce’s decision to double bracket identifying information of a researcher
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because disclosing its identity “could prove a danger to the researcher and the researcher’s
methods of obtaining information in the future.”). Golden Bird’s assurances to its counsel that
“no threats had been made” to the declarant do not call into question Commerce’s reasoning
regarding the need to protect the declarant, see Golden Bird Cmts. at 14, as these off-the-record
assurances cannot be verified, are neither specific nor meaningful given that Golden Bird claims
it does not know the identity of the declarant, and otherwise do not challenge Commerce’s
reasoned explanation as unsupported by substantial evidence.
In addition, Golden Bird has not squarely addressed why the identity of the declarant is
necessary for it to rebut the claims. As Commerce points out, rebutting proprietary information
is routine, and counsel could have worked with Golden Bird to formulate a path to rebuttal
without disclosing any proprietary information. Remand Results at 33; see Max Fortune, 853 F.
Supp. 2d at 1265–67. And, Commerce, rather than basing its decision on the double-bracketed
information, relied on corroborated information from the Harmoni Fraud Allegation and the
unrebutted data from GACC and Customs.8 Remand Results at 32, 34–35. Golden Bird’s
speculation about the undisclosed declarant’s lack of credibility and its assertion that the sworn
nature of its testimony do not ensure its reliability are insufficient to rebut the record evidence
relied upon by Commerce. See Golden Bird Cmts. at 10–11; Remand Results at 34. Thus,
Commerce’s decision to designate certain identifying information of the undisclosed declarant
under an APO was not arbitrary, and Commerce did not infringe on Golden Bird’s Fifth
8
Golden Bird, however, contends that Commerce improperly relied upon a hearsay statement.
Golden Bird Cmts. at 14. But, the alleged hearsay statement Golden Bird points to relates to
whether or not Messrs. Bai and Wang owned Golden Bird, and Commerce specifically stated
that it did not make a finding of whether Messrs. Bai and Wang controlled Golden Bird and,
therefore, did not rely on any such hearsay statement. See Remand Results at 10–11, 21.
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Amendment right to procedural due process.
CONCLUSION
For the reasons stated above, Commerce’s determinations regarding Golden Bird in the
Remand Results are sustained. Judgment will enter accordingly.
Dated: July 17, 2017 /s/ Jane A. Restani
New York, New York Jane A. Restani
Judge