2013 Ct. Intl. Trade LEXIS 115
Ct. Intl. Trade2013Background
- Commerce conducted the 2009–2010 antidumping administrative review for PET film from the PRC and used India as the single surrogate market-economy country in its Preliminary and Final Results.
- Commerce’s Office of Policy (OP) compiled a list of economically comparable countries using World Bank GNI data available when OP issued the list; Commerce relied on the 2008 GNI data in the Final Results.
- World Bank 2009 GNI data, published April 11, 2011, were placed on the record by parties (but not within the OP’s initial listing window); the 2009 data indicated India and the PRC were not economically comparable.
- The Court remanded, holding Commerce failed to justify disregarding the 2009 GNI data and that selection of India lacked substantial evidence; Commerce on remand argued the 2009 data appeared too late for OP consideration.
- The court rejected Commerce’s new procedural excuse: Commerce had accepted the 2009 GNI data as timely and on the record, and Commerce provided no reasoned justification for treating OP’s list as immune from rebuttal.
- Court remanded again, directing Commerce to reconsider surrogate-country selection with the 2009 GNI data (or justify a lawful deadline under APA), and to file a redetermination within 60 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Commerce reasonably disregarded 2009 World Bank GNI data when selecting a surrogate country | Plaintiffs: Commerce accepted the 2009 GNI data as timely and on the record and cannot ignore it; Commerce denied parties a meaningful opportunity to rebut OP’s comparability list | Defendant: OP must set a list early; administrative constraints justify ignoring GNI data released after OP list; this is consistent practice | Court: Commerce failed to provide a reasoned justification; accepting data on the record means Commerce must consider it; remand to reconsider surrogate selection with 2009 data |
| Whether Commerce’s practice of treating OP’s list as final without a meaningful comment window violates procedural fairness / APA | Plaintiffs: Commerce’s practice effectively eliminates a meaningful comment period and thus conflicts with statutory duty to achieve accurate margins; APA notice-and-comment required for any new internal deadline | Defendant: Practice is clarification of prior policy; administrative needs require early finality | Court: Commerce abused discretion by denying meaningful opportunity to comment; if Commerce wants an earlier cutoff it must issue such a rule under APA; interest in finality doesn’t override statutory accuracy obligation |
| Whether Commerce may rely on administrative convenience to avoid reevaluating OP list when new comparable-country data appear | Plaintiffs: Administrative convenience cannot trump statutory obligation to use economically comparable surrogate data | Defendant: Reconsideration would waste resources and delay proceedings | Held: Administrative burdens do not justify ignoring probative, timely-submitted evidence; Commerce must balance finality with accuracy and fairness |
| Remedy | Plaintiffs: Remand to require Commerce to consider 2009 GNI data and redo surrogate selection | Defendant: N/A (procedural defense) | Court: Remand for Commerce to reconsider surrogate country selection with 2009 GNI data; may reopen record if needed; no instruction on which country to select |
Key Cases Cited
- Dorbest Ltd. v. United States, 604 F.3d 1363 (Fed. Cir.) (Commerce must use data from economically comparable countries when valuing factors of production)
- Essar Steel Ltd. v. United States, 678 F.3d 1268 (Fed. Cir.) (Commerce generally may reject untimely factual information)
- PSC VSMPO–Avisma Corp. v. United States, 688 F.3d 751 (Fed. Cir.) (Commerce has discretion in developing the administrative record)
- Paralyzed Veterans of America v. West, 138 F.3d 1434 (Fed. Cir.) (APA notice-and-comment applies when an agency changes law or policy affecting rights/obligations)
- QVD Food Co. v. United States, 658 F.3d 1318 (Fed. Cir.) (parties bear burden to create adequate record but Commerce’s record placement has consequences)
- Yangzhou Bestpak Gifts & Crafts Co. v. United States, 716 F.3d 1370 (Fed. Cir.) (administrative time constraints do not override statutory obligations of accuracy)