2013 Ct. Intl. Trade LEXIS 23
Ct. Intl. Trade2013Background
- This case concerns plaintiffs challenge to Commerce's final PET film anti-dumping results for PRC; challenge focuses on surrogate country selection and surrogate financial data.
- Commerce selected India as the primary surrogate country using 2008 GNI data; later 2009 GNI data became available and record included this data.
- Record contained Indian financial statements from multiple companies (including JBF) used to compute surrogate financial ratios; Polyplex also on record.
- DEPB countervailable subsidy is at issue; several Indian statements show subsidies, while JBF’s 2010-2011 statement initially appeared to lack explicit subsidy receipts.
- Final Results relied on JBF’s 2010-2011 statement as best available information and did not exclude it for DEPB concerns; court ordered remand on surrogate country data but sustained certain aspects.
- Court requires remand to address whether 2009 GNI data should be considered or new surrogate country chosen; also sustains use of JBF statement as best available information and its non-exclusion for DEPB.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Surrogate country selection based on 2009 GNI data | Plaintiffs argue 2009 data show India is no longer economically comparable to PRC | Defendant contends 2008 data suffice and change is not significant | Remanded for explanation or alternative surrogate selection with 2009 data |
| Use of JBF financial statement for surrogate ratios | Plaintiffs argue JBF may have benefited from DEPB subsidies and should be excluded | Commerce reasonably treated JBF as best available; other statements show subsidies | Sustained: JBF statement treated as best available; not excluded on DEPB evidence on remand |
| Need for explanation of disregarding 2009 data | Plaintiffs contend Commerce failed to justify ignoring 2009 data | Commerce concluded 2008 data remained representative | Remanded for a reasoned explanation or data-informed surrogate selection |
| Record evidence on OP list and data contemporaneity | Evidence suggests 2009 data could affect surrogate selection; OP list context matters | OP list not exhaustive; discretion to select surrogate country | Remand to articulate rationale given 2009 data and OP list considerations |
| Consistency with policy on data selection | argue inconsistency with how updated data treated in other reviews | Policy permits reliance on best available data | Remand for reasoned articulation of data treatment on remand |
Key Cases Cited
- Consolo v. Fed. Mar. Comm'n, 383 U.S. 607 ( Supreme Court 1966) (no rigid requirement; courts will uphold agency choice if reasonable)
- Motor Vehicle Mfrs. Ass'n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (Supreme Court 1983) (reasoned decision required; rational connection between facts and choice)
- Fujian Lianfu Forestry Co. v. United States, 638 F. Supp. 2d 1325 (CIT 2009) (upheld need for reasoned use of updated data in surrogate analysis)