2016 CIT 68
Ct. Intl. Trade2016Background
- This case concerns Commerce's remand redetermination in the 18th administrative review of the antidumping duty order on fresh garlic from the PRC (POR: Nov 1, 2011–Oct 31, 2012).
- Commerce originally applied total AFA to mandatory respondent Hebei Golden Bird and assigned the PRC-wide rate; the court vacated use of the PRC-wide rate because Commerce had not found Golden Bird’s separate-rate evidence deficient.
- On remand Commerce granted Golden Bird a separate rate but assigned a total AFA margin of $2.24/kg based on Xinboda’s highest non-aberrational transaction-specific margin; parties do not contest using Xinboda’s transaction but FGPA challenges the separate-rate determination.
- Commerce had selected the Philippines as the surrogate country to value factors of production; the court previously held that Commerce’s significant-producer analysis lacked a comparative element and remanded for reconsideration.
- On remand Commerce reiterated its Philippines selection, arguing the Philippines ranked mid‑range (43rd of 95 non‑PRC producers) and that its 9,056 MT production was “noticeably or measurably large”; the court again found this analysis unsupported by substantial evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Golden Bird is entitled to a separate-rate and whether Commerce may assign a total-AFA rate based on another respondent's highest transaction-specific margin | FGPA: Golden Bird's separate-rate evidence is unreliable (same attestor for sales and separate‑rate statements); Golden Bird should get PRC-wide rate | Commerce: No record evidence of government control; Golden Bird eligible for separate rate; AFA rate based on Xinboda’s highest non‑aberrational transaction is appropriate to avoid rewarding non‑cooperation | Court: Sustains Commerce’s finding that Golden Bird is eligible for a separate rate and sustains the $2.24/kg AFA rate based on Xinboda’s highest non‑aberrational transaction (permitted under precedent) |
| Whether Commerce’s selection of the Philippines as the surrogate country is supported by substantial evidence | Respondents: Philippines is not a significant producer; its data are unreliable and too small relative to PRC (economies of scale distort comparisons) | Commerce: Philippines production is ‘‘noticeably or measurably large’’ and ranks in the top half of non‑PRC producers; paucity of candidate surrogate countries justifies flexibility | Court: Commerce’s comparative analysis is inadequate; holding that ranking mid‑list and absolute production alone do not show significance, remands for Commerce to redo surrogate selection with a meaningful comparative approach |
Key Cases Cited
- Sigma Corp. v. United States, 117 F.3d 1401 (Fed. Cir.) (separate‑rate framework and PRC‑wide presumption of state control)
- Timken Co. v. United States, 354 F.3d 1334 (Fed. Cir.) (AFA must balance accuracy and inducement to cooperate)
- Nan Ya Plastics Corp. v. United States, 810 F.3d 1333 (Fed. Cir.) (affirming use of one respondent’s highest transaction‑specific POR margin as total AFA in certain circumstances)
- Shakeproof Assembly Components v. United States, 268 F.3d 1376 (Fed. Cir.) (Commerce must use best available information to value FOPs and ensure accurate margins)
- Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 (U.S.) (agency interpretations of ambiguous statutes reviewed for reasonableness)