83 F. Supp. 3d 1330
Ct. Intl. Trade2015Background
- Plaintiffs (Fresh Garlic Producers Assn. and member growers) challenged Commerce’s final results of the 17th administrative review of the antidumping order on fresh garlic from the PRC (POR: Nov 1, 2010–Oct 31, 2011). Mandatory respondents were Xinboda and Golden Bird.
- Commerce values raw garlic bulbs (an intermediate input) using surrogate-country data because China is treated as a nonmarket economy; Commerce applied an intermediate-input methodology.
- Parties placed two principal Ukrainian price sources on the record for garlic bulbs: (1) FAO annual producer (farmgate) price data (calendar year 2009) and (2) Fruit-Inform (FI) daily regional wholesale market prices during the POR.
- In the Preliminary Results Commerce used FI (wholesale) prices; in the Final Results Commerce switched to FAO (national annual) prices, indexed to the POR, producing zero dumping margins for the two mandatory respondents.
- Plaintiffs argued the FAO data was less specific to respondents’ level of trade and non-contemporaneous, so Commerce did not use the best available information. Commerce and respondents argued the FAO data represented the best available info because it is a broader market average and tax-exclusive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Commerce’s selection of FAO data as surrogate value for raw garlic bulbs is supported by substantial evidence | FAO data reflects farmgate prices non-specific to respondents’ higher level of trade and is non-contemporaneous with the POR; FI wholesale POR data is more specific and contemporaneous | FAO is a countrywide annual average (broader market average), tax-exclusive, and indexing makes it sufficiently contemporaneous; other factors outweigh level-of-trade and contemporaneity | Court sustained Commerce: substantial evidence supports use of FAO given its broad market-average and tax-exclusivity advantages and reasonable indexing for contemporaneity |
| Whether Commerce erred by deviating from prior reviews that used wholesale prices | Plaintiffs: prior two reviews used wholesale data — Commerce’s switch is inconsistent with finding that respondents’ purchases were not farmgate | Commerce: record here shows FAO is more representative of the national market and FI covers only ~18% of production; level-of-trade is ambiguous | Court: deviation permissible; Commerce considered factors together and reasonably prioritized broad market average and tax exclusivity over specificity and contemporaneity |
| Whether Commerce’s indexing of 2009 FAO data to POR was reasonable | Plaintiffs: non-contemporaneous data less reliable; contemporaneous FI data preferable | Commerce: 2009 FAO data is close in time; no record evidence of market change; no party challenged indexing method | Court: indexing reasonable under the circumstances; no evidence of market shift and parties did not dispute indexing method |
| Whether Commerce properly applied its five-factor surrogate-data test (availability, specificity, broad-market-average, tax-exclusivity, contemporaneity) | Plaintiffs: level-of-trade and contemporaneity should have carried greater weight | Commerce: evaluated all five factors; broad market average and tax-exclusivity strongly favored FAO | Court: Commerce reasonably weighed factors together; choice of FAO supported by substantial evidence |
Key Cases Cited
- Huaiyin Foreign Trade Corp. v. United States, 322 F.3d 1369 (Fed. Cir.) (substantial evidence definition and review standard)
- Matsushita Elec. Indus. v. United States, 750 F.2d 927 (Fed. Cir.) (court must not reweigh evidence; asks whether evidence could reasonably lead to agency conclusion)
- Nation Ford Chem. Co. v. United States, 166 F.3d 1373 (Fed. Cir.) (Commerce constructs hypothetical market value using best available information)
- Ad Hoc Shrimp Trade Action Comm. v. United States, 618 F.3d 1316 (Fed. Cir.) (Commerce’s preference for countrywide data as a broad market measure is reasonable)
- Jining Yongjia Trade Co. v. United States, 34 CIT 1510 (Ct. Int’l Trade) (Commerce may use nationwide data over regional data when available)
- Zhejiang Native Produce & Animal By-Products Imp. & Exp. Grp. Corp. v. United States, 32 CIT 673 (Ct. Int’l Trade) (possibility of drawing two reasonable conclusions does not preclude substantial-evidence support)