2013 CIT 152
Ct. Intl. Trade2013Background
- Commerce conducted the 2009–2010 administrative review of the antidumping order on certain preserved mushrooms from the PRC, selecting XITIC, Blue Field, and Jisheng as mandatory respondents; Iceman Group and Golden Banyan received separate-rate status.
- Commerce used India as the primary surrogate country and assigned margins: XITIC 13.12%; Golden Banyan and Iceman Group initially 84.55% (later amended to 76.12%); Jisheng received a 266.13% partial AFA margin.
- XITIC challenged Commerce’s surrogate valuations for inputs: lime, mushroom spawn, and fresh mushrooms, and contested the surrogate labor and financial-ratio methodology.
- Iceman Group argued it was improperly included in the review because the initiation request named a different company (Iceman Food); both Iceman Group and Golden Banyan challenged Commerce’s inclusion of Jisheng’s large partial-AFA margin in the separate-rate calculation.
- The Government agreed to a voluntary remand to apply Commerce’s revised labor methodology; Commerce defended its surrogate choices and separate-rate methodology but the court found some selections unsupported by substantial evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Surrogate value for "lime" | XITIC: record shows "lime" meant calcium carbonate (HTS 2836.50.00); Commerce wrongly used GTA data for slaked lime (HTS 2522.20). | Commerce: "lime" ambiguous; slaked lime surrogate reasonable because it contains the word "lime" and calcium carbonate was not explicitly stated. | Court: Commerce's choice was unsupported by substantial evidence; remand to reconsider lime surrogate. |
| Surrogate value for mushroom spawn | XITIC: proposed company-specific surrogates (Agro Dutch, Himalya) better; GTA basket data not specific to white button spawn and is much higher. | Commerce: XITIC's company data not representative of broad market averages/contemporaneous; GTA data publicly available and representative. | Court: Commerce failed to explain why GTA data were superior and relied on speculation to dismiss XITIC's data; remand required. |
| Surrogate value for fresh mushrooms | XITIC: Agro Dutch sales data (company-based) better or at least use the low end of Flex Foods range. | Commerce: Flex Foods report is contemporaneous, specific to button mushrooms, and reflects market variation; averaging range is reasonable. | Court: Commerce's use of Flex Foods average supported by substantial evidence; challenge denied. |
| Separate-rate assignment and calculation for Iceman Group & Golden Banyan | Iceman Group: review was not initiated for it; should have been liquidated at deposit rate; also Commerce unlawfully included Jisheng’s 266.13% partial AFA in separate-rate calculation, distorting rates. Golden Banyan joined on inclusion argument. | Commerce/Government: Iceman Group participated and filed separate-rate paperwork (so inclusion lawful); statute permits inclusion of margins not determined entirely by facts available; no additional showing required. | Court: Including Iceman Group in the review was lawful given its participation and silence after preliminary results. But Commerce’s separate-rate calculation—using Jisheng’s anomalous partial-AFA margin without explanation—was not supported by substantial evidence; remand to explain or redetermine. |
Key Cases Cited
- Consol. Edison Co. v. NLRB, 305 U.S. 197 (definition of substantial evidence)
- Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (agency statutory interpretation framework)
- QVD Food Co. v. United States, 658 F.3d 1318 (Commerce has discretion in surrogate selection; reviewing court asks whether reasonable minds could conclude Commerce chose best available information)
- Yangzhou Bestpak Gifts & Crafts Co. v. United States, 716 F.3d 1370 (separate-rate methodology must bear relation to actual margins)
- Transcom, Inc. v. United States, 294 F.3d 1371 (notice of initiation must allow reasonably informed parties to determine whether their entries may be affected)
- SKF USA Inc. v. United States, 254 F.3d 1022 (standards governing voluntary remand)
- Nation Ford Chem. Co. v. United States, 166 F.3d 1373 (purpose of constructing normal value in NME proceedings)
- Dorbest Ltd. v. United States, 462 F. Supp. 2d 1262 (agency must reasonedly evaluate and compare surrogate data)