997 F. Supp. 2d 1338
Ct. Intl. Trade2014Background
- This appeal arises from Commerce’s second remand redetermination in the 2009–2010 administrative review of the antidumping duty order on PET film from the PRC; the court previously ordered Commerce to reconsider surrogate-country selection using 2009 GNI data.
- On remand Commerce replaced India with South Africa as the primary surrogate country, producing higher dumping margins for the Chinese respondents.
- Commerce found South Africa to be economically comparable to the PRC, a significant producer of comparable merchandise, and to have reliable data for valuing factors of production.
- Commerce relied on export data under HTS 3920.62 and the financial statements of Astrapak (a South African producer of flexible films and packaging) to support South Africa’s significance as a producer of comparable merchandise.
- Plaintiffs argued South Africa is not a significant producer (low HTS 3920.62 export ranking) and that Commerce unreasonably relied on Astrapak; Defendant-Intervenors argued Commerce should have averaged two Astrapak financial statements when calculating surrogate financial ratios.
- The court sustained Commerce’s Second Remand Results, holding Commerce reasonably found South Africa a significant producer and properly used the single most-contemporaneous Astrapak financial statement for surrogate financial ratios.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether South Africa is a "significant producer" of merchandise comparable to PET film | South Africa exports little under HTS 3920.62 (ranked low), so it is not a significant producer; Astrapak does not show production of HTS 3920.62 goods, so export data corroborate low production | Commerce reasonably may consider comparable (not identical) merchandise and use financial statements to supplement export data; Astrapak’s production of polymer-based films is comparable and shows substantial production | Court: Commerce reasonably considered Astrapak and other record evidence; South Africa is a significant producer (decision sustained) |
| Whether Commerce improperly compared Astrapak’s production to exports of other potential surrogate countries | Such cross-country comparisons improperly rank surrogate countries and conflict with Commerce policy | Commerce used Thailand as a benchmark because world production data were unavailable and the comparison reflected that export data alone were insufficient for South Africa (domestic consumption is high) | Court: Comparison was reasonable in context; Commerce did not impermissibly rely solely on inter-country ranking; decision sustained |
| Whether Commerce erred by using only Astrapak’s 2011 financial statement instead of averaging 2010 and 2011 statements to calculate surrogate financial ratios | Both statements overlap the POR and are contemporaneous; Commerce should average multiple statements to avoid distortion | When only one company’s statements are on the record, Commerce’s practice prefers the statement most contemporaneous with the POR rather than averaging | Court: Commerce reasonably used the 2011 statement (most contemporaneous); averaging unnecessary when only one producer’s statements exist; decision sustained |
Key Cases Cited
- Dupont Teijin Films v. United States, 931 F. Supp. 2d 1297 (Ct. Int’l Trade 2013) (court previously remanded on surrogate-country selection and instructed Commerce to consider 2009 GNI data)
- Dorbest Ltd. v. United States, 604 F.3d 1363 (Fed. Cir. 2010) (discussing Commerce practice of averaging multiple surrogate-country financial statements to avoid distortions)
- Dorbest Ltd. v. United States, 462 F. Supp. 2d 1262 (CIT 2006) (permitting use of financial statements to determine whether a country is a significant producer based on totality of the record)