Jinan Farmlady Trading Co. v. United States
2017 CIT 69
| Ct. Intl. Trade | 2017Background
- This action challenges Commerce's final results in the 16th administrative review of the antidumping duty order on fresh garlic from the PRC; plaintiff Jinan Farmlady was a separate-rate respondent.
- Commerce selected India as the primary surrogate country and used Indian import statistics to derive surrogate values for inputs (e.g., chlorine dioxide, packing materials).
- For the Preliminary Results, Commerce excluded Indian import entries that originated from non-market-economy (NME) countries and certain other unidentified or subsidized sources when calculating average unit values.
- Farmlady argued Commerce erred by (1) excluding NME-origin imports from the Indian data and (2) failing to exclude "aberrational" import observations that distorted surrogate values.
- Farmlady also challenged Commerce’s established practice of stating, in final results, an intent to issue liquidation/assessment instructions to CBP 15 days after publication (the "15-Day Policy"), arguing this truncated the 30-day statutory window to file suit.
- The Court sustained Commerce’s surrogate-value determinations but held the inclusion of the 15-Day Policy in the Final Results was arbitrary and unlawful for lacking a reasoned explanation reconciling it with the statutory filing period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exclusion of Indian import data that originated in NME countries when calculating surrogate values | Commerce must use all non-aberrational Indian imports; excluding NME-origin data improperly distorts surrogate values | Commerce reasonably excluded NME-origin data because NME prices are unreliable and would undermine the surrogate approach | Held for Commerce: exclusion was reasonable and consistent with statute and precedent |
| Inclusion of "aberrational" observations in Indian import statistics used for surrogate values | Certain low or high import unit values (e.g., packaging tape from Nepal; chlorine dioxide from Canada) were aberrational and distorted averages | No record evidence showed the included data were aberrational, unreliable, or unrepresentative | Held for Commerce: Commerce reasonably found no aberrational data on the record |
| Lawfulness of Commerce's 15-Day Policy announced in Final Results (liquidation/assessment instructions to CBP 15 days after publication) | The 15-Day Policy effectively truncates the 30-day statutory period to file suit and obtain a preliminary injunction, harming interested parties | The statute is silent on timing; Commerce acted reasonably to avoid deemed liquidations and to give CBP time to act | Held for Plaintiff: inclusion of the 15-Day Policy in the Final Results was arbitrary and capricious because Commerce failed to reasonably reconcile the policy with the statutory 30-day filing period |
| Justiciability/standing to challenge the 15-Day Policy | Policy causes recurring injury by forcing compressed filing and injunction practice | Government argued harm was hypothetical and not reviewable | Held: Claim is justiciable; court found prior precedent supports review (capable of repetition yet evading review) |
Key Cases Cited
- QVD Food Co. v. United States, 658 F.3d 1318 (Fed. Cir.) (Commerce has broad discretion to select best available information for NME surrogate values)
- Shakeproof Assembly Components v. United States, 268 F.3d 1376 (Fed. Cir.) (construction of foreign market value for NME producers is necessarily imprecise; Commerce may use surrogate information to approximate best available data)
- Camargo Correa Metais, S.A. v. United States, 200 F.3d 771 (Fed. Cir.) (agency filling of statutory gaps reviewed with deference but must be reasonable)
- Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402 (U.S.) (agency actions must be based on consideration of relevant factors and reasoned explanation)
- Torrington Co. v. United States, 44 F.3d 1572 (Fed. Cir.) (exception to mootness doctrine for issues capable of repetition yet evading review)
- SKF USA Inc. v. United States, 630 F.3d 1365 (Fed. Cir.) (discussing justiciability and recurring-injury concerns regarding Commerce liquidation policies)