CIT Sustains Departure from Use of India as Surrogate in China Ironing Tables AD Review; Remands on Other Issue
The Court of International Trade sustained the selection of Indonesia as surrogate country in the 2009-10 antidumping duty administrative review of floor-standing, metal-top ironing tables and certain parts thereof from China (A-570-888), despite a challenge from Foshan Shunde Yongjian that the International Trade Administration should have instead picked India. According to Yongjian, the selection of Indonesia arbitrarily broke a long chain of China reviews that used India as surrogate country, and was effectively a change in methodology without the required notice and comment period. The court disagreed, finding the selection to be consistent with the methodology of prior reviews, and finding the use of Indonesia as surrogate country to be reasonable based on record evidence.
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CIT also remanded the ITA’s selection of data for valuing Yongjian’s steel wire inputs because the agency didn’t adequately consider Yongjian’s arguments.
During the review, the ITA picked Indonesia based on a list of potential surrogates compiled using 2010 World Bank data. That list did not include India. Yongjian argued that India would have been included if not for the late date the list was compiled; a contemporaneous review’s list was compiled months earlier, used 2009 data, and included India. The use of Indonesia was therefore unreasonable because it was the result of an unusual timetable, and arbitrary and capricious because it was contrary to the ITA’s actions in contemporaneous reviews.
Furthermore, said Yongjian, India had been commonly selected as a surrogate for China AD cases for a long time, and the selection of a different company was in effect a rule change requiring a notice and comment period pursuant to the Administrative Procedure Act. Removing India from the list was “one of the most significant acts of rulemaking by the Department in 25 years,” Yongjian said.
However, the selection of Indonesia as the surrogate country was not a change to methodology, the court said, but simply a factual determination using the same methodology but relying on a different record as evidence. The list was prepared with ample time for Yongjian to comment on the possible surrogate countries, it said. The use of Indonesia was not based on an unreasonable timetable, and did not require notice and comment, CIT found.
Finally, the court refused to mandate use of earlier 2009 economic data to select the surrogate country when 2010 data was available. Yongjian ‘is not entitled to have the Court remand the case to Commerce with instructions to disregard evidence that India and China are no longer economically comparable and instead base its decision on an obsolete ‘practice’ of finding India comparable,” CIT said, echoing the ITA’s arguments.
(Foshan Shunde Yongjian Housewares & Hardwares Co., Ltd. v. United States, Slip Op. 13-24, dated 02/22/13, Judge Gordon)
(Attorneys: Gregory Menegaz of Dekieffer & Horgan for plaintiff Foshan Shunde Yongjian Housewares & Hardwares Co., Ltd; Carrie Dunsmore for defendant U.S. government; Frederick Ikenson of Blank Rome for defendant-intervenor Home Products International, Inc.)