CIT Remands Rescission of China Garlic New Shipper Review for Atypical Sale
The Court of International Trade remanded the rescission of a new shipper review on fresh garlic from China for Jinxiang Yuanxin Import & Export. Commerce had ended the proceeding because it found Yuanxin’s only sale under review wasn’t commercially bona fide and reviewable. The sales price was too high, the sales quantity was too low, and the sale was made under strange circumstances, Commerce said. The rescission had resulted in Yuanxin’s garlic continuing to be subject to the high China-wide rate. But the court found fault with Commerce’s decision to compare the price and quantity of Yuanxin’s sale of single-clove garlic to CBP data on imports of fresh whole garlic.
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According to CIT, the decision to compare single clove garlic prices and quantities to CBP data on fresh whole garlic imports contravened a practice established in an earlier review on garlic. The agency had in a 2009 new shipper review disregarded the fact that a company’s single clove garlic prices were higher than prices found for CBP data on fresh whole garlic, because of single clove garlic’s increased cost. Commerce argued that Yuanxin needed to prove again that the market for single clove garlic is different from whole garlic. But CIT said that an absence of evidence in this case doesn’t change the fact that Commerce has previously found the two markets to be distinct in an earlier one, and the agency needed to explain its departure from previous practice.
The court agreed with part of Commerce’s decision to rescind, finding the circumstances of the sale were indeed strange. Yuanxian sold the garlic at issue to a U.S. reseller that normally manufactured sporting goods, which in turn sold to a distributor. Yuanxian acted as importer of record. The reseller had never imported garlic, while the distributor had served as importer of record in previous garlic transactions. Given Yuanxian’s lack of explanation on the unique sale, the court found reasonable Commerce’s determination that the transaction was atypical.
(Jinxiang Yuanxin Import & Export Co., Ltd. v. United States, Slip Op. 13-77, dated 06/18/13, public version 07/10/13, Judge Eaton)
(Attorneys: John Kenkel of deKieffer & Horgan for plaintiff Jinxiang Yuanxin Import & Export Co., Ltd.; Melissa Devine for defendant U.S. government; John Gerrmann of Kelley Drye for defendant-intervenors Fresh Garlic Producers Association, Christopher, L.L.C., the Garlic Company, Valley Garlic, and Vessey and Company, Inc.)