121 F. Supp. 3d 1313
Ct. Intl. Trade2015Background
- This court sustains Commerce's Final Results in part and remands in part for the 2011-2012 eighteenth AD review of fresh garlic from PRC.
- Commerce used the Philippines as the surrogate country, kept NME presumptions, and assigned a PRC-wide rate to Golden Bird after selecting total AFA.
- FGPA filed untimely allegations about Golden Bird's sales; Commerce allowed the late allegations and designated the underlying data as BPI.
- Goodman was rescinded from the administrative review for lack of bona fide sales, with the NSR results effectively applying the PRC-wide rate to Goodman.
- Xinboda and QXF challenge surrogate country selection and data quality; FGPA challenges labor and farm-gate surrogate values; Golden Bird challenges AFA and the 15-day liquidation policy.
- On remand, the court directs reconsideration of Golden Bird's separate-rate eligibility and the surrogate-country selection, including the definition of 'significant producer.'
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FGPA's untimely allegations and BPI designation were proper | Golden Bird argues untimely FGPA data tainted process. | Commerce acted with good cause and used BPI appropriately to protect integrity. | Untimeliness and BPI designation sustained; no due process violation. |
| Whether total AFA and the PRC-wide rate for Golden Bird are lawful | Golden Bird cooperated to best ability; PRC-wide rate is punitive and unsupported. | Serious deficiencies and intentional misreporting justify total AFA and PRC-wide rate. | Total AFA sustained; remand for recalculation of Golden Bird's AFA rate with Separate Rate status reconsidered. |
| Whether § 502 (Trade Preferences Extension Act) applies to remand | § 502 should apply on remand to enhance corroboration rules. | § 502 does not retroactively apply to final judgments or remands. | § 502 does not apply on remand. |
| Whether Commerce properly selected the Philippines as surrogate and treated data quality | India or Thailand could offer better data; Philippines not a significant producer. | Philippines offered best available data and was a significant producer for surrogate purposes. | Remand to reassess surrogate-country selection; Philippines not clearly supported as 'significant producer.' |
Key Cases Cited
- Ad Hoc Shrimp Trade Action Comm. v. United States, 802 F.3d 1339 (Fed. Cir. 2015) (Section 502 prospective; remand involves retroactivity concerns)
- Nippon Steel Corp. v. United States, 337 F.3d 1373 (Fed. Cir. 2003) (AFA framework; two-part inquiry for cooperation and data adequacy)
- Tehnoimportexport v. United States, 766 F. Supp. 1175 (1991) (Economic comparability as surrogate-country threshold concept)
- Zhejiang DunAn Hetian Metal Co. v. United States, 652 F.3d 1333 (Fed. Cir. 2011) (Total vs partial AFA decisions; substantial evidence standard)
- Qingdao Taifa Group Co. v. United States, 637 F. Supp. 2d 1231 (CIT 2009) (ACAs and PRC-wide rate; commercial reality linkage concerns)
- DuPont Teijin Films v. United States, 896 F. Supp. 2d 1302 (CIT 2013) (Surrogate country selection methodology guidance)
- Dorbest Ltd. v. United States, 462 F. Supp. 2d 1262 (CIT 2006) (Surrogate country selection process and best available information)
- Jiaxing Brother Fastener Co. v. United States, 961 F. Supp. 2d 1323 (CIT 2014) (GNI-based economic comparability guidance)
- Tehnoimportexport v. United States, 15 CIT 250 (1991) (Reference for economic comparability approach)