Qingdao Maycarrier Import & Export Co., Ltd. v. United States

Slip Op. 13-149
UNITED STATES COURT OF INTERNATIONAL TRADE
QINGDAO MAYCARRIER IMPORT & 	:
EXPORT CO., LTD., 	:
:
Plaintiff, 	:
: 	Before: Nicholas Tsoucalas,
v. 	: 	Senior Judge
:
UNITED STATES, 	: 	Court No.: 13-00142
:
Defendant, 	:
: 	PUBLIC VERSION
and 	:
:
FRESH GARLIC PRODUCERS 	:
ASSOCIATION, et al., 	:
:
Defendant-Intervenors. :
:
OPINION
[Plaintiff’s motion for judgment on the agency record is denied.]
Dated:
Robert 	T. 	Hume, 	Hume 	& 	Associates, 	LLC, 	of 	Ojai, 	CA 	for
plaintiff.
Melissa 	M. 	Devine, 	Trial 	Attorney, 	Commercial 	Litigation
Branch, Civil Division, U.S. Department of Justice, of Washington,
DC, 	for 	defendant. 	With 	her 	on 	the 	brief 	were 	Stuart 	F. 	Delery,
Assistant 	Attorney 	General, 	Jeanne 	E. 	Davidson, 	Director, 	and
Reginald 	T. 	Blades, 	Jr., 	Assistant 	Director. 	Of 	counsel 	on 	the
brief was George H. Kivork, Attorney, Office of the Chief Counsel
for 	Import 	Administration, 	U.S. 	Department 	of 	Commerce, 	of
Washington, DC.
Michael 	J. 	Coursey 	and 	John 	M. 	Herrmann 	II, 	Kelley 	Drye 	&
Warren LLP, of Washington, DC, for defendant-intervenors.
Tsoucalas, 	Senior 	Judge: 	Plaintiff 	Qingdao 	Maycarrier
Import & Export Co., Ltd. (“Maycarrier”), moves for judgment on the
agency 	record 	contesting 	defendant 	United 	States 	Department 	of
December 13, 2013
Case 1:13-cv-00142-NT Document 41 Filed 12/13/13 Page 1 of 23

Court No. 13-00142 	Page 2
Commerce’s 	(“Commerce”) 	determination 	in 	Fresh 	Garlic 	From 	the
People’s 	Republic 	of 	China: 	Final 	Rescission 	of 	Antidumping 	Duty
New Shipper Reviews; 2010-2011, 78 Fed. Reg. 18,316 (Mar. 26, 2013)
(“Final 	Rescission”). 	Commerce 	and 	defendant-intervenors 	Fresh
Garlic Producers Association, et al., oppose Maycarrier’s motion.
For the following reasons, Maycarrier’s motion is denied.
BACKGROUND
In 	1994, 	Commerce 	issued 	an 	antidumping 	duty 	order
covering fresh garlic from the People’s Republic of China (“PRC”).
See Antidumping Duty Order: Fresh Garlic From the PRC, 59 Fed. Reg.
59,209 (Nov. 16, 1994). 	Maycarrier made three entries of subject
merchandise during 2011. 	See Request for Antidumping New Shipper
Review 	(Nov. 	30, 	2011), 	A-570-831, 	Public 	Rec. 	2 	at 	1–2. 1 	In
November 2011, Maycarrier requested a new shipper review (“NSR”) to
obtain 	an 	individual 	rate 	for 	its 	entries. 	Id. 	at 	1. 	Commerce
initiated the NSR in January 2012. 	See Fresh Garlic From the PRC:
Initiation of NSRs, 77 Fed. Reg. 266, 267 (Jan. 4, 2012).
In 	March 	2013, 	Commerce 	rescinded 	Maycarrier’s 	NSR.
Final 	Rescission, 	78 	Fed. 	Reg. 	at 	18,317. 	Commerce 	found 	that
Maycarrier was actually the same entity as Weifang Naike Foodstuffs
Co., Ltd. (“Naike”), an exporter that entered subject merchandise
1 	Hereinafter, 	documents 	in 	the 	public 	record 	will 	be
designated “PR” and documents in the confidential record designated
“CR” without further specification except where relevant.
Case 1:13-cv-00142-NT Document 41 Filed 12/13/13 Page 2 of 23

Court No. 13-00142 	Page 3
prior to the period of review. 	See Issues and Decision Memorandum
for 	the 	Final 	Rescission 	of 	the 	Antidumping 	Duty 	NSRs 	of 	Fresh
Garlic 	from 	the 	PRC 	(Mar. 	19, 	2013), 	A-570-831, 	PR 	194 	at 	3–6.
Commerce’s 	analysis 	centered 	on 	three 	pieces 	of 	evidence: 	(1)
mutual 	links 	between 	the 	two 	companies 	Commerce 	discovered 	on
numerous 	business-to-business 	websites 	and 	Maycarrier’s 	own
website; 	(2) 	Maycarrier’s 	business 	registration 	form; 	and 	(3)
Maycarrier’s 	tax 	records. 	See 	Analysis 	of 	Maycarrier 	(Mar. 	19,
2013), A-570-831, CR 108 at 1–8.
Commerce placed evidence onto the record from business-
to-business websites and Maycarrier’s own website indicating that
Maycarrier 	and 	Naike 	shared 	contact 	information 	and 	personnel 	in
their 	sales 	and 	management 	departments. 	See 	CR 	108 	at 	4–7.
Specific 	evidence 	included: 	several 	websites 	listed 	a 	telephone
number for Naike’s sales department that is identical to the number
Maycarrier 	listed 	for 	its 	sales 	department 	on 	its 	own 	website;
Maycarrier’s general manager, Eileen Chen, “manage[d] online sales
for 	both 	Maycarrier 	and 	Naike,” 	and 	shared 	a 	mobile 	number 	with
Naike’s 	chairman; 	Maycarrier’s 	profiles 	on 	“tradezz.com” 	and 	on
“tradekr.com” 	list 	Maycarrier’s 	phone 	number 	but 	direct 	users 	to
“naikefood.com”; Maycarrier and Naike are both listed as members of
a “Weifang Naike Group”; several websites list Naike’s employees as
contacts for Maycarrier; and Lily Pan, an employee of Naike, posted
sales 	information 	to 	Maycarrier’s 	profiles 	on 	several 	websites.
Case 1:13-cv-00142-NT Document 41 Filed 12/13/13 Page 3 of 23

Court No. 13-00142 	Page 4
See 	id. 	Given 	this 	evidence, 	Commerce 	concluded 	that 	Maycarrier
and Naike “appear indifferent to which of the two companies makes
a sale and receives the associated sales revenue.” 	PR 194 at 5–6.
During 	the 	review, 	Maycarrier 	provided 	Commerce 	with
copies 	of 	its 	tax 	returns 	and 	those 	of 	Yishi 	Hengshun 	Food 	Co.,
Ltd. 	(“Hengshun”), 	a 	company 	operating 	in 	Shandong 	Province 	that
produces 	subject 	merchandise. 	See 	Maycarrier’s 	Supplemental
Questionnaire Response, Exhs. 3, 13 (Jul. 20, 2012), A-570-831, CR
44, 	45. 	Commerce 	located 	Hengshun’s 	records 	in 	the 	Shandong
Province National Taxation Bureau’s online database, but could not
locate 	Maycarrier’s 	records. 	See 	Analysis 	of 	Maycarrier’s 	New
Shipper Sales (Oct. 18, 2012), A-570-831, CR 73 at 6. 	Maycarrier
explained 	that 	the 	“Confidential 	Administration 	Provision 	on 	Tax
Payers” 	(“CAP”) 	for 	Qingdao 	City 	provided 	that 	its 	records 	were
confidential 	and 	therefore 	unavailable 	by 	internet 	search.
Maycarrier’s Second Supplemental Questionnaire Response (Dec. 13,
2012), A-570-831, CR 94 at 1. 	Commerce determined that the terms
of the CAP conflicted with Maycarrier’s argument. 	See CR 108 at 2.
Specifically, Commerce found that Article 4 of the CAP stated that
certain 	information 	was 	confidential, 	but 	did 	not 	define 	what
information qualified as confidential. 	Id. 	Furthermore, Article
2, 	which 	defined 	confidential 	information, 	did 	not 	list 	the 	tax
payer’s name, identification number, or the existence of its record
as confidential. 	Id. at 3. 	Commerce concluded that Maycarrier’s
Case 1:13-cv-00142-NT Document 41 Filed 12/13/13 Page 4 of 23

Court No. 13-00142 	Page 5
failure 	to 	explain 	the 	absence 	of 	its 	tax 	records 	was 	further
evidence that it was not an independent entity. 	See PR 194 at 5.
Maycarrier 	also 	provided 	Commerce 	with 	a 	copy 	of 	its
business 	registration 	form 	with 	an 	accompanying 	translation. 	CR
94, 	Exh. 	2. 	Although 	it 	originally 	translated 	the 	“enterprise
status” 	portion 	of 	the 	form 	as 	“[[ 	]],” 	id.,
Maycarrier subsequently amended the translation to “[[
]].” 	Maycarrier’s 	Third 	Supplemental 	Questionnaire
Response 	(Jan. 	22, 	2013), 	A-570-831, 	CR 	100 	at 	2. 	Commerce
determined that a more accurate translation was “[[
]]” 	or 	“[[ 	]],” 	indicating 	that
Maycarrier was “connected to another entity.” 	CR 108 at 8.
Given the record as a whole, Commerce concluded that “the
companies 	are 	essentially 	the 	same.” 	PR 	194 	at 	5. 	Commerce
rescinded 	the 	review 	because 	Maycarrier 	did 	not 	report 	Naike’s
earlier 	sales 	of 	subject 	merchandise 	in 	violation 	of 	19 	C.F.R. 	§
351.214(b)(2)(iv). 2 	Final 	Rescission, 	78 	Fed. 	Reg. 	at 	18,317.
Because 	it 	was 	no 	longer 	reviewing 	Maycarrier’s 	sales, 	Commerce
declined to assign Maycarrier a separate rate, PR 194 at 8–9, and
noted 	that 	Maycarrier’s 	entries 	would 	continue 	to 	be 	assessed 	at
the PRC-wide rate. 	See Final Rescission, 78 Fed. Reg. at 18,317.
2 Commerce also upheld its finding in the preliminary results
that 	Maycarrier’s 	NSR 	request 	was 	untimely 	under 	19 	C.F.R.
351.214(c). 	See PR 194 at 4.
Case 1:13-cv-00142-NT Document 41 Filed 12/13/13 Page 5 of 23

Court No. 13-00142 	Page 6
Maycarrier 	raises 	several 	challenges 	to 	the 	Final
Rescission: 	(1) 	Commerce 	erroneously 	rescinded 	the 	NSR; 	(2)
Commerce erroneously declined to assign Maycarrier a separate rate;
and 	(3) 	Commerce 	erroneously 	imposed 	an 	adverse 	facts 	available
(“AFA”) 	rate 	of 	$4.71/kg 	that 	was 	unsupported 	by 	substantial
evidence and contrary to law. 	See Pl.’s Br. at 25–46.
JURISDICTION and STANDARD OF REVIEW
The 	Court 	has 	jurisdiction 	pursuant 	to 	28 	U.S.C. 	§
1581(c) (2006) and section 516A(a)(2)(B)(iii) of the Tariff Act of
1930, 3 as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2006).
“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. 	§ 	1516a(b)(1)(B)(i). 	Substantial 	evidence 	“means 	such
relevant evidence as a reasonable mind might accept as adequate to
support 	a 	conclusion.” 	Universal 	Camera 	Corp. 	v. 	NLRB, 	340 	U.S.
474, 	477 	(1951). 	It 	is 	“something 	less 	than 	the 	weight 	of 	the
evidence, 	and 	the 	possibility 	of 	drawing 	two 	inconsistent
conclusions 	from 	the 	evidence 	does 	not 	prevent 	an 	administrative
agency’s 	finding 	from 	being 	supported 	by 	substantial 	evidence.”
Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620 (1966). 	In
3 	Further 	citations 	to 	the 	Tariff 	Act 	of 	1930 	are 	to 	the
relevant portions of Title 19 of the U.S. Code, 2006 edition, and
all applicable amendments thereto.
Case 1:13-cv-00142-NT Document 41 Filed 12/13/13 Page 6 of 23

Court No. 13-00142 	Page 7
determining 	whether 	a 	decision 	was 	supported 	by 	substantial
evidence, 	the 	Court’s 	role 	is 	to 	“assess[] 	whether 	[Commerce’s]
action is reasonable given the record as a whole.” 	Since Hardware
(Guangzhou) 	Co. 	v. 	United 	States, 	37 	CIT 	__, 	__, 	911 	F. 	Supp. 	2d
1362, 1365 (2013) (citing Nippon Steel Corp. v. United States, 458
F.3d 1345, 1350-51 (Fed. Cir. 2006)).
Additionally, 	“an 	agency's 	construction 	of 	its 	own
regulations is entitled to substantial deference.” 	Lyng v. Payne,
476 U.S. 926, 939 (1986).
DISCUSSION
I. Legal Framework
Commerce 	shall, 	upon 	request, 	conduct 	a 	review 	of 	a
exporter or producer who did not export subject merchandise to the
U.S. during the period of investigation or is not affiliated with
an entity that exported subject merchandise to the U.S. during that
period to determine whether that exporter or producer is eligible
for an “individual” rate. 	19 U.S.C. § 1675(a)(2)(B)(i). 	Section
1675(a)(2)(B) “enables a new shipper ‘to demonstrate that it should
be 	accorded 	a 	dumping 	rate 	specific 	to 	itself, 	and 	not 	the
‘all-others’ 	rate.’” 	Hebei 	New 	Donghua 	Amino 	Acid 	Co. 	v. 	United
States, 29 CIT 603, 604, 374 F. Supp. 2d 1333, 1335 (2005) (citing
Tianjin Tiancheng Pharm. Co. v. United States, 29 CIT 256, 256, 366
F. Supp. 2d 1246, 1247 (2005)).
Commerce’s 	regulations 	set 	out 	requirements 	for 	an
Case 1:13-cv-00142-NT Document 41 Filed 12/13/13 Page 7 of 23

Court No. 13-00142 	Page 8
exporter 	or 	producer 	to 	obtain 	an 	individual 	rate 	through 	a 	NSR.
First, 	the 	exporter 	or 	producer 	must 	certify 	that 	it 	neither
exported subject merchandise during the period of investigation nor
is 	affiliated 	with 	an 	entity 	that 	did 	so. 	See 	19 	C.F.R. 	§
351.214(b)(2)(i)–(iii) 	(2012). 	It 	must 	also 	certify 	the 	date 	of
first 	entry 	of 	subject 	merchandise, 	the 	volume 	of 	that 	entry 	and
all 	later 	entries, 	and 	the 	date 	of 	first 	sale 	to 	an 	unaffiliated
customer 	in 	the 	U.S. 	Id. 	at 	§ 	351.214(b)(2)(iv). 	Commerce
explained that “[t]he purpose of these certifications is to ensure
that new shipper status is not achieved through mere restructuring
of corporate organizations or channels of distribution,” and that
“parties will not be granted new shipper status merely because they
were 	not 	individually 	examined 	during 	the 	investigation.”
Antidumping Duties, 61 Fed. Reg. 7308, 7318 (Feb. 27, 1996).
Finally, 	the 	exporter 	or 	producer 	must 	request 	the 	NSR
within 	one 	year 	after 	the 	date 	of 	first 	entry 	of 	subject
merchandise. 	See 19 C.F.R. § 351.214(c). 	Commerce included this
provision to clarify that “the statute is intended to provide a new
shipper 	an 	opportunity 	to 	obtain 	its 	own 	rate 	on 	an 	expedited
basis, and not to permit shippers to request expedited reviews long
after the first shipment has taken place.” 	Antidumping Duties, 61
Fed. Reg. at 7318.
II. The Final Rescission was Supported by Substantial Evidence
and Otherwise in Accordance with Law.
Case 1:13-cv-00142-NT Document 41 Filed 12/13/13 Page 8 of 23

Court No. 13-00142 	Page 9
Maycarrier 	argues 	that 	the 	Final 	Rescission 	must 	be
remanded because Commerce lacked authority to rescind the NSR under
19 	C.F.R. 	§ 	351.214(b) 	or 	(c); 	Commerce 	did 	not 	determine 	that
Maycarrier 	was 	“affiliated” 	with 	Naike; 	and 	record 	evidence
established that Maycarrier was independent from Naike. 	See Pl.’s
Br. at 25–36.
A. Commerce’s Authority to Rescind the NSR
First, Maycarrier argues that Commerce lacked authority
to rescind the NSR under 19 C.F.R § 351.214(b) or (c). 	See Pl.’s
Br. 	at 	29. 	According 	to 	Maycarrier, 	Commerce 	may 	rescind 	an 	NSR
only 	under 	the 	situations 	prescribed 	in 	19 	C.F.R. 	§ 	351.214(f):
either 	the 	party 	requesting 	the 	NSR 	voluntarily 	withdraws 	its
request or there was not a sale to an unaffiliated customer during
the 	review 	period. 	Pl.’s 	Reply 	at 	7. 	Because 	neither 	of 	these
situations 	occurred 	during 	the 	NSR, 	Maycarrier 	argues 	that 	the
Final Rescission violated Commerce’s regulations. 	Id. at 10.
The 	Court 	expressly 	rejected 	this 	argument 	in 	Marvin
Furniture (Shanghai) Co. v. United States, 36 CIT __, 867 F. Supp.
2d 1302 (2012) (Tsoucalas, J.), appeal docketed No. 13-1156 (Fed.
Cir. 	Jan. 	11, 	2013). 	In 	that 	case, 	Commerce 	rescinded 	the 	NSR
because Marvin Furniture (Shanghai) Co., Ltd. (“Marvin”), did not
accurately report the date of first entry of subject merchandise.
Id. 	at 	__, 	867 	F. 	Supp. 	2d 	at 	1306. 	Marvin 	contested 	Commerce’s
authority 	to 	rescind 	the 	NSR, 	but 	the 	Court 	held 	that 	“the
Case 1:13-cv-00142-NT Document 41 Filed 12/13/13 Page 9 of 23

Court No. 13-00142 	Page 10
rescission was based on an application of the express provisions of
the relevant statutes and regulations.” 	Id. at __, 867 F. Supp. 2d
1308. 	The Court found that a NSR request “provides the basis upon
which 	Commerce 	can 	undertake 	the 	review,” 	and 	therefore 	Commerce
cannot engage in a NSR “[i]f a new shipper request does not provide
Commerce 	with 	accurate 	information 	regarding 	an 	exporter 	or
producer’s entries.” 	Id., 867 F. Supp. 2d at 1308.
As 	noted 	above, 	the 	regulations 	ensure 	that 	NSRs 	are
available to qualified new shippers only and prevent entities from
attempting 	to 	obtain 	a 	lower 	rate 	by 	obscuring 	earlier 	sales.
See Antidumping Duties, 61 Fed. Reg. at 7318. 	Given the deference
accorded to Commerce’s interpretation of its own regulations, Lyng,
476 U.S. at 939, the court continues to find that Commerce properly
rescinds 	a 	NSR 	where 	the 	request 	is 	inaccurate 	or 	infirm. 	See
Marvin, 36 CIT at __, 867 F. Supp. 2d at 1308.
B. “Affiliate” Standard
Maycarrier also argues that “Commerce failed to apply the
proper 	standard 	of 	‘affiliation’” 	when 	analyzing 	Maycarrier’s
relationship 	with 	Naike. 	Pl.’s 	Reply 	at 	10–11; 	see 	Pl.’s 	Br. 	at
27. 	According 	to 	Maycarrier, 	“Congress 	determined 	. 	. 	. 	that
‘affiliated’ 	is 	the 	operative 	relationship 	to 	disqualify 	a 	new
shipper in the case of a connection to a company involved in sales
of subject merchandise during the [period of investigation].” 	Id.
Maycarrier continues that “[a] similar relationship must exist in
Case 1:13-cv-00142-NT Document 41 Filed 12/13/13 Page 10 of 23

Court No. 13-00142 	Page 11
respect to a ‘connection’ for reporting sales within the one-year
limit specified in Commerce’s regulations.” 	Id. 	Because Commerce
did 	not 	conclude 	that 	Maycarrier 	was 	affiliated 	with 	Naike,
Maycarrier insists that the Final Rescission is contrary to statute
and regulation. 	Id. at 29.
Maycarrier’s argument is incorrect. 	Maycarrier borrows
the 	“affiliation” 	standard 	from 	19 	U.S.C. 	§ 	1675(a)(2)(B), 	which
applies to sales during the period of investigation. 	19 U.S.C. §
1675(a)(2)(B). 	However, 	Commerce 	did 	not 	rely 	on 	section
1675(a)(2)(B) 	when 	rescinding 	the 	review. 	Rather, 	Commerce
determined 	that 	Maycarrier 	failed 	to 	report 	its 	first 	sale, 	in
violation of 19 C.F.R. § 351.214(b)(2)(iv), and did not timely file
its NSR request. 	Final Rescission, 78 Fed. Reg. at 18,317; PR 194
at 4. 	As noted above, these regulations require that an exporter
or producer certify certain information about its first entry and
sale, and request a review within one year of its first sale. 	19
C.F.R. § 351.214(b)(2)(iv), (c). 	They do not mention “affiliation”
with another exporter or producer who made earlier sales, id., and
Maycarrier 	does 	not 	cite 	any 	authority 	supporting 	its 	position.
See 	Pl.’s 	Br. 	at 	27; 	Pl.’s 	Reply 	at 	10–11. 	Because 	it 	is
inconsistent with the plain text of the regulations, Maycarrier’s
argument must fail. 	19 C.F.R. § 351.214(b)(2)(iv), (c).
C. Record Support for Commerce’s Determination
Finally, Maycarrier alleges that Commerce’s determination
Case 1:13-cv-00142-NT Document 41 Filed 12/13/13 Page 11 of 23

Court No. 13-00142 	Page 12
that Maycarrier was the same entity as Naike was not supported by
substantial evidence. 	See Pl.’s Br. at 25–36. 	Maycarrier insists
that Commerce unreasonably relied on information it obtained from
its 	“cyber 	investigation” 	of 	the 	two 	companies 	and 	erroneously
interpreted 	evidence 	regarding 	Maycarrier’s 	tax 	returns 	and
registration 	form. 	See 	id. 	Ultimately, 	Maycarrier 	insists 	that
Commerce 	did 	not 	have 	sufficient 	evidence 	to 	define 	the
relationship 	between 	the 	two 	entities 	and 	therefore 	the 	Final
Rescission must be remanded. 	See id.
As noted above, the Court reviews Commerce’s conclusions
to 	determine 	whether 	they 	were 	supported 	by 	substantial 	evidence
and in accordance with law. 	19 U.S.C. § 1516a(b)(1)(B)(i). 	Here,
Commerce’s finding was reasonable given the record as a whole.
(i) Business-to-business Websites
Maycarrier 	insists 	that 	Commerce 	erroneously 	relied 	on
the 	information 	it 	discovered 	on 	business-to-business 	websites.
Pl.’s 	Br. 	at 	28–31. 	To 	illustrate 	that 	the 	information 	was 	not
reliable, 	Maycarrier 	identifies 	three 	individual 	errors 	in 	its
brief: 	(1) 	“Nobodybuy.com” 	listed 	Eileen 	Chen 	as 	a 	contact 	for
Naike but does not mention garlic or Maycarrier; (2) “allbiz.com”
inconsistently 	translated 	Naike 	and 	Weifang 	Naike 	Group 	from 	the
Chinese characters; and (3) “B2B77.com” noted that Maycarrier did
not provide a company introduction on its company profile. 	Id. at
30–31. 	Maycarrier 	also 	insists 	that 	Naike 	or 	another 	entity
Case 1:13-cv-00142-NT Document 41 Filed 12/13/13 Page 12 of 23

Court No. 13-00142 	Page 13
fraudulently 	posted 	this 	information 	because, 	as 	it 	explained 	to
Commerce, “companies such as Naike make exaggerated and inaccurate
claims 	on 	websites.” 	Id. 	at 	28. 	Neither 	of 	these 	arguments 	is
sufficient to undermine Commerce’s decision.
The 	record 	includes 	over 	two-dozen 	websites 	listing
information 	indicating 	that 	the 	companies 	share 	contact,
management, and personnel information, as well as direct sales to
one 	another. 	See 	CR 	108 	at 	4–7 	(detailing 	the 	instances 	of
overlapping information). 	Commerce acknowledged that the websites
contained 	certain 	errors, 	but 	concluded 	that, 	taken 	as 	a 	whole,
they represent a consistent pattern in which Maycarrier and Naike
represented 	themselves 	interchangeably. 	Id. 	Given 	the 	repeated
instances 	of 	overlapping 	information, 	the 	relatively 	minuscule
errors Maycarrier identifies on individual web pages do not render
Commerce’s 	decision 	erroneous. 	See 	Hoogovens 	Staal 	BV 	v. 	United
States, 24 CIT 242, 247, 93 F. Supp. 2d 1303, 1307 (2000) (citing
Matsushita 	Elec. 	Indus. 	Co. 	v. 	United 	States, 	750 	F.2d 	927, 	936
(Fed. 	Cir. 	1984)) 	(“[T]hat 	plaintiff 	can 	point 	to 	evidence 	. 	. 	.
which detracts from . . . [Commerce's] decision and can hypothesize
a 	. 	. 	. 	basis 	for 	a 	contrary 	determination 	is 	neither 	surprising
nor persuasive.”) (alterations in original).
Furthermore, Maycarrier’s claim that Naike fraudulently
posted 	the 	information 	to 	exaggerate 	its 	own 	business 	is
unavailing. 	Maycarrier 	insists 	that 	it 	is 	common 	in 	the 	PRC 	for
Case 1:13-cv-00142-NT Document 41 Filed 12/13/13 Page 13 of 23

Court No. 13-00142 	Page 14
companies to misrepresent themselves on the internet, and therefore
the information Commerce obtained is inaccurate. 	Pl.’s Br. at 31.
However, 	Maycarrier 	does 	not 	identify 	any 	evidence 	in 	the 	record
that supports this claim, see id., and its explanation is actually
contradicted by the record: Commerce found that Naike’s profile on
certain 	websites 	directed 	potential 	customers 	to 	Maycarrier,
indicating that the Naike actually promoted Maycarrier’s business.
See 	CR 	108 	at 	6. 	Maycarrier’s 	alternative 	explanation 	of 	the
evidence, 	by 	itself, 	is 	an 	insufficient 	basis 	upon 	which 	to
overturn Commerce’s determination. 	See Consolo, 383 U.S. at 620.
(ii) Registration Form
Maycarrier 	also 	argues 	that 	Commerce 	mistranslated 	the
“enterprise 	status” 	section 	of 	its 	business 	registration 	form 	as
“[[ 	]]” 	or 	“[[ 	]].” 	See
Pl.’s 	Br. 	at 	32–33. 	According 	to 	Maycarrier, 	the 	proper
translation is “[[ 	]],” which indicates that it is
an independent entity. 	Id. at 33. 	As evidence, Maycarrier points
to 	the 	translation 	on 	the 	record 	of 	the 	Company 	Law 	of 	the 	PRC
(“Company 	Law”), 	in 	which 	the 	same 	characters 	as 	those 	in
Maycarrier’s enterprise status are translated as “[[
]].” 	Id. 	Maycarrier 	insists 	that 	“[c]learly 	this
translation affirms Maycarrier’s translation.” 	Id.
Maycarrier’s 	argument 	is 	unpersuasive. 	The 	translated
section of the Company law reads: “[[
Case 1:13-cv-00142-NT Document 41 Filed 12/13/13 Page 14 of 23

Court No. 13-00142 	Page 15
]].”
Id. (emphasis in Pl.’s Br.). 	Contrary to Maycarrier’s insistence,
this section of the Company Law does not “clearly” establish that
“[[ 	]]” 	is 	the 	proper 	translation. 	Maycarrier
posits 	an 	alternative 	interpretation 	of 	the 	quoted 	language, 	but
does 	not 	provide 	any 	evidence 	demonstrating 	that 	Commerce’s
interpretation was erroneous. 	Again, an alternative interpretation
of the evidence, by itself, is insufficient to undermine Commerce’s
conclusion. 	See Consolo, 383 U.S. at 620.
(iii) Tax Records
Finally, Maycarrier alleges that Commerce’s analysis of
its tax records was unsupported by substantial evidence. 	Pl.’s Br.
at 33–36. 	According to Maycarrier, Commerce’s translation of the
CAP 	provisions 	was 	unreasonable 	because 	it 	is 	not 	qualified 	to
interpret 	Chinese 	law. 	See 	id. 	at 	35 	(comparing 	Commerce’s
translation to “the Chinese government interpreting U.S. tax laws
and how they are administered”). 	Maycarrier argues that, under the
CAP 	in 	Qingdao 	City, 	its 	tax 	records 	are 	confidential 	and
undiscoverable 	by 	internet 	search, 	and 	therefore 	it 	was
unreasonable for Commerce to expect to discover its tax records in
the 	online 	database. 	See 	Pl.’s 	Reply 	at 	19. 	Maycarrier 	insists
Case 1:13-cv-00142-NT Document 41 Filed 12/13/13 Page 15 of 23

Court No. 13-00142 	Page 16
that Commerce should have verified this argument by consulting the
U.S. Embassy in Beijing, searching for the tax records of another
company registered in Qingdao City, or requesting information from
the Chinese government. 	See Pl.’s Br. at 35.
This argument is unavailing. 	Maycarrier does not provide
any authority supporting its position that Commerce is unqualified
to 	analyze 	the 	operation 	of 	foreign 	laws. 	See 	id. 	at 	35.
Regardless, 	Commerce 	analyzed 	the 	terms 	of 	the 	CAP 	because
Maycarrier placed them onto the record to support its position. 	CR
108 	at 	1–4 	(analyzing 	the 	terms 	of 	the 	CAP). 	Based 	on 	this
evidence, Commerce found that it should have been able to confirm
the existence of Maycarrier’s records on the online database. 	Id.
at 2–4. 	Maycarrier contests this interpretation, but it fails to
identify any record evidence supporting its argument other than its
own interpretation of the CAP. 	Pl.’s Br. at 35; Pl.’s Reply at 19.
Such 	an 	argument 	is 	inadequate 	to 	justify 	overturning 	Commerce’s
determination. 	See 	Consolo, 	383 	U.S. 	at 	620. 	Furthermore,
Maycarrier’s insistence the Commerce was required to consult non-
record 	sources 	to 	produce 	evidence 	supporting 	Maycarrier’s
interpretation 	of 	the 	CAP 	is 	inapposite. 4 	See 	Qingdao 	Sea-line
4 	Maycarrier 	also 	argues 	that 	Commerce’s 	translation 	of 	the
CAP 	and 	the 	business 	registration 	certificate 	constituted 	new
information 	on 	the 	record 	to 	which 	Commerce 	did 	not 	allow
Maycarrier 	a 	response. 	See 	Pl.’s 	Br. 	at 	33, 	35. 	However,
Maycarrier’s claim lacks merit because it originally translated its
enterprise 	status 	at 	“[[ 	]]” 	and 	placed 	the
Case 1:13-cv-00142-NT Document 41 Filed 12/13/13 Page 16 of 23

Court No. 13-00142 	Page 17
Trading Co. v. United States, 36 CIT __, __, Slip Op. 12-39 at 19
(Mar. 	21, 	2012) 	(“[I]t 	was 	simply 	not 	Commerce's 	duty 	to 	help
[Plaintiff] create an adequate record to support its position.”).
Because Maycarrier fails to demonstrate that Commerce’s
determination 	was 	unsupported 	by 	substantial 	evidence, 	the 	court
finds 	that 	Commerce 	reasonably 	concluded 	that 	Maycarrier 	was
“essentially the same” as Naike. 	See Since Hardware, 37 CIT at __,
911 F. Supp. 2d at 1365 (citing Nippon Steel, 458 F.3d at 1350-51).
III. Maycarrier was not Eligible for a Separate Rate
Maycarrier 	also 	challenges 	Commerce’s 	decision 	not 	to
assign a separate rate. 	Pl.’s Br. at 24–25, 36–37. 	According to
Maycarrier, 	it 	satisfied 	the 	requirements 	for 	a 	separate 	rate,
having timely submitted its section A questionnaire addressing its
independence from the Chinese government. 	Id. at 24. 	Accordingly,
Maycarrier 	insists 	that 	Commerce 	should 	have 	assigned 	a 	separate
rate or transferred the evidence to the seventeenth administrative
review of fresh garlic from the PRC (“17 th AR”), which covered the
period of Maycarrier’s sales. 	Id. at 36.
In antidumping duty proceedings, Commerce establishes an
individual rate for mandatory respondents and a country-wide rate
for all others. 	19 U.S.C. § 1673d(c)(1)(B)(i). 	When merchandise
is from a non-market economy, as it is here, Commerce presumes that
untranslated sections of the CAP onto the record. 	See CR 94 at 1
& Exh. 2.
Case 1:13-cv-00142-NT Document 41 Filed 12/13/13 Page 17 of 23

Court No. 13-00142 	Page 18
all 	non-mandatory 	respondents 	are 	government 	controlled 	and
therefore those respondents are subject to the country-wide rate.
See 	Sigma 	Corp. 	v. 	United 	States, 	117 	F.3d 	1401, 	1405 	(Fed. 	Cir.
1997). 	Commerce does allow a non-mandatory respondent to overcome
this presumption, however, if it can establish the absence of both
de jure and de facto government control. 	Id. 	If the non-mandatory
respondent makes such a showing, Commerce assigns a separate rate,
normally calculated by weight-averaging the individually-calculated
rates. 	See 	Changzhou 	Wujin 	Fine 	Chem. 	Factory 	Co. 	v. 	United
States, 37 CIT __, __, Slip Op. 13-127 at 3–4 (Oct. 2, 2013).
Here, Commerce determined that it had no basis to assign
Maycarrier a separate rate because it rescinded the review and was
no 	longer 	reviewing 	Maycarrier. 	PR 	194 	at 	8–9. 	Maycarrier’s
insistence 	that 	Commerce 	was 	required 	to 	review 	its 	section 	A
questionnaire and assign a separate rate is not consistent with the
statutory 	framework 	for 	NSRs. 	The 	statute 	states 	that 	Commerce
shall 	conduct 	a 	NSR 	to 	“establish 	an 	individual 	weighted 	average
dumping 	margin.” 	19 	U.S.C. 	§ 	1675(a)(2)(B)(i) 	(emphasis 	added).
Once 	Commerce 	determined 	that 	Maycarrier 	was 	not 	a 	new 	shipper
eligible for an individual rate, the review ended and Maycarrier’s
goods remained subject to the rate already in place, the PRC-wide
rate. 	See 	Final 	Rescission, 	78 	Fed. 	Reg. 	at 	18,317. 	Therefore,
Commerce 	properly 	determined 	that 	there 	was 	no 	basis 	to 	consider
Maycarrier’s 	separate 	rate 	eligibility. 	See 	19 	U.S.C. 	§
Case 1:13-cv-00142-NT Document 41 Filed 12/13/13 Page 18 of 23

Court No. 13-00142 	Page 19
1675(a)(2)(B)(i).
Alternatively, Maycarrier insists that Commerce erred in
failing to exercise its authority to transfer the record of the NSR
to the 17 th AR. 	See Pl.’s Br. at 36–37. 	Maycarrier relies on Fresh
Garlic From the PRC: Final Rescission of NSRs of Jining Yifa Garlic
Produce 	Co., 	Ltd., 	Shenzhen 	Bainong 	Co., 	Ltd., 	and 	Yantai 	Jinyan
Trading Inc., 76 Fed. Reg. 52,315 (Aug. 22, 2011) (“Jinyan NSR”),
in 	which 	Commerce 	rescinded 	Yantai 	Jinyan 	Trading 	Inc.’s 	NSR 	and
transferred 	its 	record 	to 	the 	concurrent 	administrative 	review.
See Pl.’s Br. at 37. 	Commerce responds that Maycarrier failed to
exhaust 	its 	administrative 	remedies 	with 	regards 	to 	this 	claim
because it did not request that Commerce transfer the record during
the NSR. 	Def.’s Resp. Opp. Pl.’s Mot. J. Agency R. at 39 (“Def.’s
Resp.”). 	Accordingly, Commerce insists that the court should not
consider Maycarrier’s argument on the merits. 	Id.
As a general rule, the Court “shall, where appropriate,
require 	the 	exhaustion 	of 	administrative 	remedies.” 	28 	U.S.C. 	§
2637(d). 	“The exhaustion doctrine requires a party to present its
claims 	to 	the 	relevant 	administrative 	agency 	for 	the 	agency's
consideration before raising these claims to the Court.” 	Luoyang
Bearing 	Corp. 	v. 	United 	States, 	28 	CIT 	733, 	760, 	347 	F. 	Supp. 	2d
1326, 	1351 	(2004) 	(citing 	Unemployment 	Compensation 	Comm'n 	v.
Aragon, 329 U.S. 143, 155 (1946)). 	However, the Court recognizes
certain exceptions to the rule: (1) where raising the claim would
Case 1:13-cv-00142-NT Document 41 Filed 12/13/13 Page 19 of 23

Court No. 13-00142 	Page 20
be futile; (2) where there has been an intervening court decision
that may materially affect Commerce’s determination; (3) where the
question 	is 	one 	of 	law 	and 	did 	not 	require 	further 	factual
development; and (4) where there was no reason to believe Commerce
would 	refuse 	to 	adhere 	to 	applicable 	precedent. 	See 	id. 	at 	761
n.11, 347 F. Supp. 2d at 1352 n.11.
There 	is 	no 	dispute 	that 	Maycarrier 	did 	not 	request 	to
have 	the 	record 	transferred 	during 	the 	NSR. 	Def.’s 	Resp. 	at 	39;
Pl.’s Reply at 25. 	Additionally, Maycarrier neither alleged that
Commerce failed to transfer evidence during the review, nor raised
the 	Jinyan 	NSR 	before 	Commerce 	in 	support 	of 	such 	a 	claim.
See 	Case 	Brief 	of 	Maycarrier 	(Feb. 	11, 	2013), 	A-570-831, 	CR 	104.
Maycarrier 	instead 	argues 	that 	Commerce 	previously 	rejected 	its
request to participate in the 17 th AR, and therefore would not have
accepted a transfer request. 	Pl.’s Reply at 25.
The 	futility 	exception 	arises 	where, 	if 	the 	exhaustion
requirement was enforced, “parties would be required to go through
obviously 	useless 	motions 	in 	order 	to 	preserve 	their 	rights.”
Corus 	Staal 	BV 	v. 	United 	States, 	502 	F.3d 	1370, 	1379 	(Fed. 	Cir.
2007) (internal quotation marks omitted). 	A party may not rely on
this 	exception, 	however, 	simply 	because 	“an 	adverse 	decision 	may
have been likely.” 	Id.
Here, 	there 	is 	no 	evidence 	that 	the 	transfer 	request
would 	have 	been 	“obviously 	useless.” 	Maycarrier 	requested 	that
Case 1:13-cv-00142-NT Document 41 Filed 12/13/13 Page 20 of 23

Court No. 13-00142 	Page 21
Commerce 	transfer 	certain 	documents 	to 	the 	NSR 	from 	the 	17 th 	AR.
See 	Request 	for 	Clarification 	of 	Case 	Brief 	Schedule 	and 	Request
for Department to Place Surrogate Country and Surrogate Values Data
from 	the 	Garlic 	17 th AR on the Record of this NSR (Jan. 9, 2013),
A-570-831, PR 160. 	If Maycarrier wanted Commerce to transfer its
section 	A 	questionnaire 	or 	any 	other 	evidence 	to 	the 	concurrent
administrative 	review, 	it 	was 	aware 	of 	its 	right 	and 	had 	the
opportunity to do so. 	Accordingly, the futility exception does not
apply. 	Corus Staal, 502 F.3d at 1379. 	Because Maycarrier did not
request 	that 	Commerce 	transfer 	evidence 	to 	the 	17 th 	AR, 	it 	failed
to exhaust administrative remedies with regards to this claim. 	See
28 U.S.C. § 2637(d).
IV. Commerce did not Make an AFA determination
Finally, Maycarrier argues that in refusing to assign a
separate 	rate, 	Commerce 	effectively 	imposed 	an 	AFA 	rate 	without
first 	meeting 	the 	statutory 	requirements. 	Pl.’s 	Br. 	at 	37.
Specifically, Maycarrier notes that Commerce did not find that it
failed to cooperate to the best of its ability during the review.
Id. 	Moreover, 	Maycarrier 	adds 	that 	the 	AFA 	rate 	is 	wrongful
because Commerce failed to corroborate the $4.71/kg rate during the
sixteenth administrative review of fresh garlic from the PRC (“16 th
AR”). 	Id. at 38–46.
Where Commerce “finds that an interested party has failed
to 	cooperate 	by 	not 	acting 	to 	the 	best 	of 	its 	ability 	to 	comply
Case 1:13-cv-00142-NT Document 41 Filed 12/13/13 Page 21 of 23

Court No. 13-00142 	Page 22
with a request for information,” it “may use an inference that is
adverse to the interests of that party.” 	19 U.S.C. § 1677e(b). 	If
it 	“relies 	on 	secondary 	information 	rather 	than 	on 	information
obtained in the course of an investigation or review” when making
such 	an 	inference, 	Commerce 	“shall, 	to 	the 	extent 	practicable,
corroborate 	that 	information 	from 	independent 	sources 	that 	are
reasonably at [its] disposal.” 	Id. at § 1677e(c).
Maycarrier’s 	argument 	is 	based 	on 	the 	mistaken 	belief
that Commerce “imposed” the AFA rate in the Final Rescission. 	As
noted 	above, 	Commerce 	rescinded 	the 	NSR 	and, 	as 	a 	result,
Maycarrier’s entries remained subject to the PRC-wide rate. 	Final
Rescission, 78 Fed. Reg. 18,317. 	Commerce did not make a decision
on 	the 	merits 	concerning 	the 	assessment 	rate 	on 	Maycarrier’s
entries. 	See PR 194 at 8–9. 	Accordingly, Commerce neither made an
AFA 	determination 	nor 	imposed 	an 	AFA 	rate. 5 	See 	Huaiyang 	Hongda
Dehydrated 	Vegetable 	Co. 	v. 	United 	States, 	28 	CIT 	1944, 	1953–54
(2004) (not published in the Federal Supplement) (Commerce did not
impose an AFA rate where it rescinded an administrative review and
the AFA rate from an earlier review remained in place).
Furthermore, the only review currently before the court
is 	the 	Final 	Rescission. 	Because 	Commerce 	did 	not 	make 	an 	AFA
5 	Commerce 	argues 	that 	Maycarrier 	failed 	to 	exhaust 	its
administrative remedies with regards to its AFA claim. 	See Def.’s
Resp. at 30–34. 	As Commerce did not make an AFA determination the
court need not reach a decision on this issue.
Case 1:13-cv-00142-NT Document 41 Filed 12/13/13 Page 22 of 23

Court No. 13-00142 	Page 23
determination 	and 	did 	not 	impose 	any 	rate 	based 	upon 	secondary
information, PR 194 at 3–9, there was no information that Commerce
was required to corroborate in the NSR. 	See 19 U.S.C. § 1677e(c).
Maycarrier’s 	corroboration 	claim 	concerning 	the 	16 th 	AR 	is 	not
properly 	before 	the 	court 	and 	the 	court 	lacks 	jurisdiction 	over
this claim. 	See Huaiyang Hongda, 28 CIT at 1954 (finding that the
Court 	lacks 	jurisdiction 	over 	plaintiff’s 	claim 	that 	Commerce
failed to corroborate an AFA rate that was not imposed during the
proceeding before the Court).
CONCLUSION
The 	Final 	Rescission 	was 	supported 	by 	substantial
evidence 	and 	otherwise 	in 	accordance 	with 	law. 	Because 	Commerce
rescinded 	the 	review, 	Maycarrier 	was 	not 	entitled 	to 	a 	separate
rate. 	Additionally, 	Commerce 	did 	not 	impose 	an 	AFA 	rate 	and 	the
court 	lacks 	jurisdiction 	over 	Maycarrier’s 	claim 	concerning
corroboration 	of 	the 	assessment 	rate. 	Plaintiff’s 	motion 	for
judgment 	on 	the 	agency 	record 	is 	denied 	and 	judgment 	will 	be
entered accordingly.
/s/ Nicholas Tsoucalas
Nicholas Tsoucalas
Senior Judge
Date:
New York, New York
December 13, 2013
Case 1:13-cv-00142-NT Document 41 Filed 12/13/13 Page 23 of 23