2017 Ct. Intl. Trade LEXIS 92
Ct. Intl. Trade2017Background
- This case challenges Commerce’s fifth administrative review selection of Indonesia as the primary surrogate country to calculate normal value for PET film from the PRC. Wanhua preferred South Africa (AstraPak) and also suggested India earlier.
- Commerce solicited surrogate-country comments with deadlines in April–May 2014; GNI (per capita) is Commerce’s primary metric for economic comparability and Commerce uses World Bank data.
- Wanhua submitted 2013 GNI data late (July 7, 2014) inside an FOP/surrogate-value filing and then relied on those untimely GNI figures in its case brief; Commerce rejected the 2013 GNI data as untimely and required redactions to Wanhua’s brief.
- Commerce preliminarily and finally selected Indonesia, relying on Indonesian producer Argha Karya’s financials (producer of identical merchandise) over South Africa’s AstraPak (producer of comparable merchandise).
- The Court remanded limited issues; on remand Commerce reexamined surrogate-country selection and redactions; the court sustained Commerce’s rejection of the untimely GNI data, upheld the redactions, and sustained Indonesia as the surrogate country.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Rejection of 2013 GNI data as untimely | Wanhua: 2013 GNI was more appropriate (covers more of POR); rejection was unreasonable and unfair | Commerce: deadlines were clear; 2013 GNI was untimely under those deadlines and 19 C.F.R. § 351.301 | Court: Commerce reasonably rejected the untimely GNI data; sustained rejection |
| Redaction/rejection of Wanhua’s case brief portions relying on untimely data | Wanhua: redactions and rejection deprived it of fair process/due process; inconsistent with prior practice | Commerce: rejection and redactions appropriate because brief relied on information Commerce had properly refused to accept | Court: no due-process or unfairness violation; Wanhua’s procedural choices caused the problem; redactions sustained |
| Surrogate-country selection (Indonesia v. South Africa) | Wanhua: Indonesia’s financials (Argha Karya) are incomplete/distorted by subsidies; South Africa’s AstraPak is a better data set | Commerce: Argha Karya produced identical merchandise and its data were reliable/usable; preference for identical-producer financials outweighs AstraPak weaknesses | Court: Commerce’s choice of Indonesia was reasonable on the record; sustained selection |
| Alleged inconsistent treatment of untimely submissions | Wanhua: Commerce treated similar late data differently in other proceedings; Commerce waived or acted inconsistently | Commerce: no specific inconsistent examples on record; remand covered surrogate selection arguments | Court: Wanhua failed to identify prior inconsistent instances; argument unpersuasive |
Key Cases Cited
- Nippon Steel Corp. v. United States, 458 F.3d 1345 (Fed. Cir. 2006) (standard for substantial-evidence review of agency determinations)
- Universal Camera Corp. v. NLRB, 340 U.S. 474 (U.S. 1951) (substantial-evidence review must account for record evidence that detracts from weight)
- DuPont Teijin Films USA v. United States, 407 F.3d 1211 (Fed. Cir. 2005) (describe substantial-evidence concept in antidumping context)
- Consolo v. Federal Maritime Comm'n, 383 U.S. 607 (U.S. 1966) (possibility of two inconsistent conclusions does not preclude substantial-evidence support)
- Sprinkle v. Shinseki, 733 F.3d 1180 (Fed. Cir. 2013) (fair-process considerations referenced)
- Tianjin Wanhua Co. v. United States, 179 F. Supp. 3d 1062 (CIT 2016) (prior CIT decision addressing Argha Karya financials and surrogate selection)
- Vinh Hoan Corp. v. United States, 49 F. Supp. 3d 1285 (CIT 2015) (describing Commerce’s four-step surrogate-country selection process)