Trade Courts Updates for Week of July 13, 2016

United States Court of International Trade


Remand Redetermination Remanded in Part

In Fresh Garlic Producers Association et al. v. United States et al., Consolidated Court No. 14-80, Slip Op. 16-68 (July 7, 2016), the court reviewed the United States Department of Commerce’s (“Commerce”) Final Results of Redetermination Pursuant to Remand, ECF No. 88 (“Remand Results”), concerning the eighteenth annual administrative review of the antidumping (“AD”) duty order on fresh garlic from the People’s Republic of China (“PRC”). See Antidumping Duty Order: Fresh Garlic from the People’s Republic of China, 59 Fed. Reg. 59,209, 59,209 (Dep’t Commerce Nov. 16, 1994). The court remanded this matter to Commerce for reconsideration and further explanation of Commerce’s AD duty margin for one of the mandatory respondents, Hebei Golden Bird Trading Co. Ltd. (“Golden Bird”), and Commerce’s selection of the Philippines as the surrogate country. Fresh Garlic Producers Ass’n v. United States, 121 F. Supp. 3d 1313, 1328, 1340 (CIT 2015).

As for Golden Bird’s duty margin Commerce ultimately assigned Golden Bird a total AFA rate of $2.24/kg. That margin represents Xinboda’s highest transaction-specific margin from the instant review. Commerce selected such a rate by reasoning that “Golden Bird should ‘not obtain a more favorable result by failing to cooperate than if it had cooperated fully.’”  The court affirmed this finding.

In regards to the selection of Philippines as the surrogate country, Commerce explained that the Philippines is a significant producer because the Philippines had a “noticeably or measurabl[y] large” amount of fresh garlic production during the POR, and it was a top producer.  However, presuming that the Philippines is a significant producer because the Philippines is in the top half of fresh garlic producers, was arbitrary and unreasonable, according to the court. Commerce failed to comply with the court’s instruction, and the court, once again, was forced to conclude that Commerce’s determination is unsupported by substantial evidence. According to the court, Commerce must construct a reasonable method of selecting a surrogate country “when the significant producers are not closely economically comparable and the chosen economically comparable countries may not be significant producers.”

Thus, the court remanded Commerce’s Remand Redetermination in part.