CIT Affirms China Honey AD New Shipper Review Rescission on Remand
The Court of International Trade accepted a remand redetermination of the rescission of an antidumping duty new shipper review of honey from China (A-570-863), but following the court’s orders did not lead to a different result. The International Trade Administration considered the evidence it was ordered to accept in the remand, but still found that plaintiff Wuhu Fenglian Co., Ltd. and Suzhou Shanding Product Co. Ltd. did not have any bona fide sales, and confirmed its decision to rescind.
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CIT had remanded in April, ordering the ITA to accept a submission rebutting information the ITA had placed on the record. The ITA had rejected the submission as untimely during the review, but the court found no time limits apply to rebuttals of information the ITA places on the record.
On remand, the ITA accepted the submission, which attempted to show the CBP data relied upon to show plaintiffs had no sales was unreliable. But after considering the new evidence, the ITA still found the CBP data to be better supported. In particular, the ITA found fault with the lack of any explanation of methodologies used to compile plaintiffs’ data on Chinese honey exports.
The court accepted the ITA’s determination that the CBP data was more reliable, noting that it met the threshold of being supported by the record.
CIT also for the third time rejected plaintiffs attempts to force the ITA to consider a CBP protest related to imports of honey from an unrelated exporter. Plaintiffs said the protest, in which CBP reversed its decision to classify the product as honey, showed the CBP information was unreliable.
But the court found that considering protests would make it impossible for the ITA to consider 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 … proceeding, and require Commerce to reopen its proceeding and record pending” the outcomes of protests and appeals of protests before CIT, the Court of Appeals for the Federal Circuit, and the Supreme Court.
(Wuhu Fenglian Co., Ltd. v. United States, Slip Op. 13-27, dated 02/27/13, Judge Carman)
(Attorneys: Yingchao Xiao of Lee & Xiao for plaintiffs; Courtney McNamara for defendant U.S. government; Michael Coursey of Kelley Drye for defendant intervenors American Honey Producers Association and Sioux Honey Association)