                                    Slip Op. 20-127

               UNITED STATES COURT OF INTERNATIONAL TRADE


 COALITION FOR FAIR TRADE IN
 GARLIC,

         Plaintiff,

          v.

 UNITED STATES,
                                             Before: Mark A. Barnett, Judge
                                             Court No. 18-00137
          Defendant,

         and

 HARMONI INTERNATIONAL SPICE,
 INC., ET AL.,

          Defendant-Intervenors.


                                       OPINION

[Sustaining the U.S. Department of Commerce’s final results of redetermination.]

                                                               Dated: August 27, 2020

Anthony L. Lanza and Brodie H. Smith, Lanza and Smith PLC, of Irvine, CA, for Plaintiff
Coalition for Fair Trade in Garlic.

Meen Geu Oh, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, for Defendant United States. Of counsel
was Emma T. Hunter, Attorney, Office of the Chief Counsel for Trade Enforcement and
Compliance, U.S. Department of Commerce, of Washington, DC.

Michael J. Coursey, John M. Herrmann, and Joshua R. Morey, Kelley Drye & Warren
LLP, of Washington, DC, for Defendant-Intervenors Fresh Garlic Producers Association
and its Individual Members.

Bruce M. Mitchell, Alan G. Lebowitz, Ned H. Marshak, Jordan C. Kahn, and Andrew T.
Schutz, Grunfeld Desiderio Lebowitz Silverman & Klestadt LLP, of New York, NY, for
Defendant-Intervenors Zhengzhou Harmoni Spice Co., Ltd. and Harmoni International
Spice Inc.
Court No. 18-00137                                                                  Page 2


       Barnett, Judge: This matter is before the court following the U.S. Department of

Commerce’s (“Commerce” or “the agency”) redetermination upon remand in this case.

See Final Results of Redetermination Pursuant to Remand (“Remand Results”), ECF

No. 99-1. 1

       In this action, Plaintiff Coalition for Fair Trade in Garlic (“the CFTG”) challenged

Commerce’s final results and partial rescission of the 22nd administrative review of the

antidumping duty order on fresh garlic from the People’s Republic of China. See Fresh

Garlic From the People’s Republic of China, 83 Fed. Reg. 27,949 (Dep’t Commerce

June 15, 2018) (final results and partial rescission of the 22nd antidumping duty admin.

review and final result and rescission, in part, of the new shipper reviews; 2015–2016),

ECF No. 24-2, and accompanying Issues and Decision Mem., A-570-831 (June 8,

2018), ECF No. 24-3. In particular, the CFTG challenged Commerce’s regulation

governing the partial rescission of an administrative review upon the withdrawal of

request to review a producer or exporter, 19 C.F.R. § 351.213(d)(1), and Commerce’s

determination that the CFTG’s request for a review of Defendant-Intervenor Zhengzhou

Harmoni Spice Co., Ltd. (“Harmoni”) was invalid ab initio on the basis that none of the

CFTG’s members had standing to request the review. See Mot. of Pls. [CFTG] and its

Individual Members for J. on the Agency R. and accompanying Mem. in Supp. at 25–49,

ECF No. 38. In a prior opinion, familiarity with which is presumed, the court remanded

Commerce’s determination based on the CFTG’s second challenge and declined to



1Commerce filed a public administrative record, ECF No. 100-2, and a confidential
administrative record, ECF No. 100-3, in connection with the Remand Results.
Court No. 18-00137                                                                  Page 3

reach the CFTG’s first challenge. Coal. for Fair Trade in Garlic v. United States

(“CFTG”), 44 CIT ___, ___, 437 F. Supp. 3d 1347, 1349 (2020). 2

      At the time it submitted its request for an administrative review of Harmoni, the

CFTG’s membership consisted of four individuals:

      Stanley Crawford, owner and operator of El Bosque Farm of Dixon, New
      Mexico; Avrum Katz, owner and operator of Boxcar Farm of Peñasco,
      New Mexico; Alex Pino, owner and operator of Revolution Farm of Santa
      Fe, New Mexico; and Suzanne Sanford, owner and operator of Sanford
      Farm of Costilla, New Mexico.

Id. at 1350 n.6. Mr. Katz and Mr. Pino later withdrew from the CFTG and Melinda

Bateman joined the CFTG. Id. To evaluate the validity of the CFTG’s request,

Commerce considered the standing and credibility of the CFTG members who had

submitted the request—Mr. Katz, Mr. Crawford, Ms. Sanford, and Mr. Pino. Id. at 1352

(discussing Commerce’s preliminary determination); id. at 1353–54 (discussing

Commerce’s final determination). “Mr. Katz and Mr. Pino did not respond to

Commerce’s questionnaires”; thus, “Commerce’s analysis was limited to the responses

of Mr. Crawford and Ms. Sanford.” Id. at 1352. Commerce concluded that “material

misrepresentations and inconsistencies” in Mr. Crawford’s and Ms. Sanford’s respective

statements undermined their alleged status as domestic garlic farmers and, thus,

“neither individual had standing to request an administrative review pursuant to 19




2 Regarding the CFTG’s first challenge, the court explained that it was guided by the
U.S. Court of Appeals for the Federal Circuit’s holding, in connection with analogous
facts, that an invalid review request meant that the requestor “‘was not a “party to the
proceeding”’ eligible to challenge Commerce’s regulation.” CFTG, 437 F. Supp. 3d at
1361 (quoting N.M. Garlic Growers Coal. v. United States, 953 F.3d 1358, 1372–73
(Fed. Cir. 2020).
Court No. 18-00137                                                                    Page 4

U.S.C. § 1677(9)(C).” 3 Id. at 1353. “Commerce did not make an explicit finding as to

whether the CFTG had requested the review on behalf of its individual members or

solely as an association,” instead, “Commerce found that none of the requesting

members had individual standing and, thus, the CFTG did not have standing.” Id.

Commerce rescinded its review of Harmoni and six other companies on the basis that

no other review request remained in place. Id. at 1354.

       The court sustained Commerce’s determination respecting Ms. Sanford but

remanded Commerce’s determination respecting Mr. Crawford. Id. at 1354–58. Thus,

the court was “unable to affirm the agency’s determination that the [CFTG’s] review

request was invalid ab initio.” Id. at 1360. The court found, however, that “Commerce’s

determination that at least three of the four members of the CFTG, at the time of the

review request, did not credibly establish that they qualified as domestic producers

[was] supported by substantial evidence.” Id. at 1360. Accordingly, the court afforded

Commerce the opportunity, on remand, to “make an express finding as to whether the

CFTG submitted the review request as an association only or also on behalf of its

individual members . . . in addition to, or in lieu of, its reconsideration of Mr. Crawford’s

credibility and status.” Id. at 1360–61.



3 Section 1677(9) defines the term “interested party” for purposes of the antidumping
and countervailing duty laws. Relevant here, section 1677(9)(C) defines “interested
party” as “a manufacturer, producer, or wholesaler in the United States of a domestic
like product.” 19 U.S.C. § 1677(9)(C). Section 16779(E) defines “interested party” as “a
trade or business association a majority of whose members manufacture, produce, or
wholesale a domestic like product in the United States.” Id. § 1677(9)(E). Commerce
requires a majority of the members of an association to have standing as individuals
pursuant to section 1677(9)(C) for the association to have standing pursuant to section
1677(9)(E). CFTG, 437 F. Supp. 3d at 1353.
Court No. 18-00137                                                                  Page 5

      In the Remand Results at issue here, Commerce concluded that the CFTG

submitted its review request on behalf of the CFTG as an association only—and not

also on behalf of the CFTG’s individual members. Remand Results at 4. Commerce

therefore concluded that the CFTG’s request “was invalid, ab initio, because a majority

of the members of the CFTG association, at the time of the request, did not credibly

establish that they [were] interested parties” pursuant to 19 U.S.C. § 1677(9)(C). Id. In

light of this conclusion, Commerce declined to reconsider its findings with respect to Mr.

Crawford. Id. at 21–22.

                          JURISDICTION AND STANDARD OF REVIEW

      The court has jurisdiction pursuant to section 516A(a)(2)(B)(iii) of the Tariff Act of

1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2018), and 28 U.S.C. § 1581(c).

      The court will uphold an agency determination that is supported by substantial

evidence and otherwise in accordance with law. 19 U.S.C. § 1516a(b)(1)(B)(i). “The

results of a redetermination pursuant to court remand are also reviewed for compliance

with the court’s remand order.” SolarWorld Ams., Inc. v. United States, 41 CIT ___,

___, 273 F. Supp. 3d 1314, 1317 (2017) (citation omitted).

                                       DISCUSSION

      While the CFTG submitted comments during the remand proceeding in

opposition to Commerce’s draft redetermination, see Remand Results at 11–12, the
Court No. 18-00137                                                               Page 6

CFTG did not object to the Remand Results before the court. 4 Thus, Commerce’s

redetermination is uncontested.

       Commerce’s determination on remand that the CFTG’s review request was

invalid ab initio complies with the court’s order in CFTG. Commerce provided the

agency’s reasoning supported by substantial evidence for its findings (1) that the

CFTG’s review request was filed on behalf of the CFTG as an association only, see

Remand Results at 5–7, 13–18; and (2) that the CFTG lacked standing as an

association because, at the time of the review request, a majority of its members had

failed to establish standing as individuals, see id. at 7–8.

                                        CONCLUSION

       There being no challenges to the Remand Results, and those results being

otherwise lawful and supported by substantial evidence, the court will sustain

Commerce’s Remand Results. Judgment will enter accordingly.




                                                  /s/   Mark A. Barnett
                                                  Mark A. Barnett, Judge

Dated: August 27, 2020
      New York, New York




4Comments in opposition to the Remand Results were due on August 12, 2020. See
Docket Entry, ECF No. 99. As of the date of this Opinion, the CFTG has not filed any
objections.
