# Jinan Yipin Corp., Ltd. v. United States

> United States Court of International Trade · September 26, 2011 · 800 F. Supp. 2d 1226

URL: https://www.frixlaw.com/law-library/cases/817880

## Case

- **Full name:** JINAN YIPIN CORPORATION, LTD., Linshu Dading Private Agricultural Products Co., Ltd., and Sunny Import & Export Ltd., Plaintiffs, v. UNITED STATES, Defendant, and Fresh Garlic Producers Association, Christopher Ranch, L.L.C., the Garlic Company, Valley Garlic, and Vessey and Company, Inc., Defendant-Intervenors
- **Court:** United States Court of International Trade
- **Decided:** September 26, 2011
- **Citations:** 800 F. Supp. 2d 1226; 33 I.T.R.D. (BNA) 2029; 2011 Ct. Intl. Trade LEXIS 119; 2011 WL 4480402
- **Precedential status:** Published
- **Opinion:** Opinion by Ridgway
- **Judges:** Ridgway
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/817880

## How later opinions describe it (automated extraction)

- stating that “the apparent involvement of intermediaries” in sales at the Azadpur APMC Market both “substantiates the Chinese Producers’ concerns that the prices included in the Azadpur APMC data may include costs, fees, and commissions that hike up the prices” and also “under…
- explaining that five criteria set forth in Policy Bulletin originally were promulgated for Commerce’s use in identifying a surrogate country, but that agency nevertheless has frequently cited Policy Bulletin as establishing criteria that guide agency's selection from among alt…
- explaining that “ ‘product specificity1 logically must be the foremost consideration in determining ‘best available information,’ ” because — if data is not sufficiently product-specific — it is irrelevant whether data satisfies other criteria set forth in Policy Bulletin 04.1
- discussing evidence concerning costs associated with transportation of garlic to Azadpur APMC Market, noting that Azadpur APMC data there indicated that “at least some of the garlic reflected in [the] data was transported for substantial distances” (as much as 100 miles or mor…

## Opinion text

Slip Op. 11- 119

UNITED STATES COURT OF INTERNATIONAL TRADE
__________________________________________________

JINAN YIPIN CORPORATION, LTD., LINSHU :
DADING PRIVATE AGRICULTURAL
PRODUCTS CO., LTD., and SUNNY IMPORT :
& EXPORT LTD.,
:
Plaintiffs,
:
v.
: Court No. 06-00189
UNITED STATES,
:
Defendant,
:
and
:
FRESH GARLIC PRODUCERS ASSOCIATION,
CHRISTOPHER RANCH, L.L.C., THE :
GARLIC COMPANY, VALLEY GARLIC,
and VESSEY AND COMPANY, INC., :

Defendant-Intervenors. :
____________________________________________________________________________________

[Sustaining in part U.S. Department of Commerce’s remand determination in tenth administrative
review of antidumping duty order covering fresh garlic from the People’s Republic of China]

Dated: September 26, 2011

Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP (Mark E. Pardo and Jeffrey O.
Frank), for Plaintiffs.

Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Reginald T. Blades,
Jr., Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice
(Richard P. Schroeder); Reid Swayze, Office of the Chief Counsel for Import Administration, U.S.
Department of Commerce, Of Counsel; for Defendant.

Kelley Drye & Warren LLP (Michael J. Coursey and John M. Herrmann), for Defendant-
Intervenors.
Court No. 06-00189 Page 2

OPINION

RIDGWAY, Judge:

In this action, the plaintiff Chinese producers and exporters of fresh garlic challenged the

final results of the U.S. Department of Commerce’s tenth administrative review of the antidumping

duty order covering fresh garlic from the People’s Republic of China. See generally Zhengzhou

Harmoni Spice Co. v. United States, 33 CIT ____, 617 F. Supp. 2d 1281 (2009) (“Zhengzhou

Harmoni I”). Zhengzhou Harmoni I analyzed each of the seven issues that the Chinese producers

raised, sustaining Commerce’s determination as to two issues, and remanding the remaining five for

further consideration by the agency. See generally id., 33 CIT at ____, ____, 617 F. Supp. 2d at

1289, 1334.

Now pending before the court is Commerce’s Remand Determination, filed pursuant to

Zhengzhou Harmoni I. See generally Final Results of Redetermination Pursuant to Court Remand

(“Remand Determination”). Plaintiffs Jinan Yipin Corporation, Ltd. (“Jinan Yipin”), Linshu Dading

Private Agricultural Products Co., Ltd. (“Linshu Dading”), and Sunny Import & Export Ltd.

(“Sunny”) – collectively referred to as “the Chinese Producers” – continue to dispute the agency’s

treatment of four of the five issues addressed in the agency’s Remand Determination. See generally

Plaintiffs’ Comments Regarding the Department’s Remand Redetermination (“Pls. Comments”);

Plaintiffs’ Reply to Defendant’s Response Comments Regarding Remand Redetermination (“Pls.

Reply Comments”).

For its part, the Government seeks a voluntary remand to allow Commerce to recalculate the

surrogate value for the Chinese Producers’ labor costs, but contends that the Remand Determination
Court No. 06-00189 Page 3

should be sustained in all other respects. See Defendant’s Response to Comments Upon the Remand

Redetermination (“Def. Response”) at 1, 31. Defendant-Intervenors the Fresh Garlic Producers

Association and its individual members (Christopher Ranch, L.L.C., The Garlic Company, Valley

Garlic, and Vessey and Company, Inc.) – collectively referred to as “the Domestic Producers” – do

not oppose the Government’s request for a limited remand to allow the agency to recalculate labor

costs, but urge that the Remand Determination be sustained as to all other issues save one, on which

the Domestic Producers express no view. See Defendant-Intervenors’ Reply Regarding Agency

Remand Redetermination (“Def.-Ints. Reply Comments”) at 1-3.

Jurisdiction lies under 28 U.S.C. § 1581(c) (2000).1 For the reasons detailed below,

Commerce’s Remand Determination is sustained in part, and this matter is remanded to the agency

for further consideration not inconsistent with this opinion.

I. Background

Seven Chinese producers and exporters of fresh garlic brought this action to contest various

aspects of the Final Results of Commerce’s tenth administrative review of the antidumping duty

order on fresh garlic from China, which covered the period from November 1, 2003 through October

31, 2004. See generally Zhengzhou Harmoni I, 33 CIT ____, 617 F. Supp. 2d 1281; Fresh Garlic

from the People’s Republic of China: Final Results and Partial Rescission of Antidumping Duty

Administrative Review and Final Results of New Shipper Reviews, 71 Fed. Reg. 26,329 (May 4,

1
All citations to federal statutes are to the 2000 edition of the United States Code. Similarly,
all citations to federal regulations are to the 2003 edition of the Code of Federal Regulations.
Court No. 06-00189 Page 4

2006) (“Final Results”).2

Zhengzhou Harmoni I sustained Commerce’s use of its “intermediate input methodology”

to value the raw garlic bulb grown by the Chinese Producers, as well as the agency’s inclusion of

certain labor-related expenses as part of manufacturing overhead. See Zhengzhou Harmoni I, 33

CIT at ____, ____, ____, 617 F. Supp. 2d at 1289, 1295, 1333-34. In contrast, Zhengzhou Harmoni

I remanded for further consideration Commerce’s surrogate valuation of certain “factors of

production” necessary for the cultivation and export of fresh garlic – specifically (1) raw garlic bulb,

(2) labor, (3) ocean freight, (4) cardboard cartons, and (5) plastic jars and lids. See id., 33 CIT at

____, ____, ____, ____, ____, ____, 617 F. Supp. 2d at 1289, 1301, 1311-12, 1321, 1327, 1334.

Following Zhengzhou Harmoni I but before issuance of Commerce’s Remand Determination,

four of the seven Chinese producers that filed the complaint in this action moved for voluntary

dismissal. See generally Zhengzhou Harmoni Spice Co. v. United States, 34 CIT ____, 675 F. Supp.

2d 1320 (2010) (“Zhengzhou Harmoni II”).3 Zhengzhou Harmoni II granted the motion and

dismissed the four Plaintiffs from this action with prejudice, leaving Jinan Yipin, Linshu Dading,

and Sunny (collectively “the Chinese Producers”) as the remaining Plaintiffs and the only subjects

2
Although the complaint in this action was filed on behalf of seven Chinese
producers/exporters, only four of the seven moved for judgment on the agency record. See
Zhengzhou Harmoni I, 33 CIT at ____ & n.2, 617 F. Supp. 2d at 1285 & n.2; see also Zhengzhou
Harmoni Spice Co. v. United States, 34 CIT ____, ____, 675 F. Supp. 2d 1320, 1324 (2010)
(“Zhengzhou Harmoni II”).
3
The Partial Consent Motion for Voluntary Dismissal with prejudice was filed on behalf of
the three plaintiff Chinese producers that did not join in the Motion for Judgment on the Agency
Record (i.e., Jining Trans-High Trading Co., Ltd., Jinxiang Shanyang Freezing Storage Co., Ltd.,
and Shanghai LJ International Trading Co., Ltd.), as well as Zhengzhou Harmoni Spice Co., Ltd.
(which was a party to the Motion for the Judgment on the Agency Record). See Zhengzhou
Harmoni II, 34 CIT at ____, 675 F. Supp. 2d at 1324.
Court No. 06-00189 Page 5

of Commerce’s Remand Determination. See id., 34 CIT at ____, ____, 675 F. Supp. 2d at 1324,

1339-40.4

Commerce thereafter issued its Remand Determination. In the Remand Determination,

Commerce revalued raw garlic bulb, labor, and ocean freight. See Remand Determination at 5-15,

15-38, 38-41, 51-59, 59-68. On the other hand, Commerce continued to value cardboard cartons and

plastic jars as it had in the Final Results. See id. at 41-46, 46-50, 68-71, 71-74. As a result of its

reconsideration in the course of the remand, Commerce recalculated the weighted-average

antidumping duty margin for Jinan Yipin as 55.18% (up from 29.52%), for Linshu Dading as

39.51% (up from 22.47%), and for Sunny as 26.67% (up from 10.52%). See id. at 74-75; Final

Results, 71 Fed. Reg. at 26,332.

The Chinese Producers contend that Commerce’s wage rate calculation and its valuation of

raw garlic bulb, cardboard cartons, and plastic jars do not comply with the instructions in Zhengzhou

Harmoni I. See generally Pls. Comments; Pls. Reply Comments. The Chinese Producers maintain

that these matters therefore should be remanded to the agency for further consideration. See Pls.

Comments at 1-2, 18-19, 26, 30, 31; Pls. Reply Comments at 12, 17.

The Government seeks a voluntary remand to allow Commerce to recalculate the surrogate

value for the Chinese Producers’ labor costs in light of the Court of Appeals’ decision in Dorbest,

but maintains that the Remand Determination should be otherwise sustained. See Def.’s Response

at 1, 31; Dorbest Ltd. v. United States, 604 F.3d 1363, 1366, 1369-73 (Fed. Cir. 2010). The

4
This action was thereafter re-styled as Jinan Yipin Corporation, Ltd., et al. v. United States,
et al., as captioned above.
Court No. 06-00189 Page 6

Domestic Producers do not oppose the Government’s request for a voluntary remand on labor costs,

but contend that the Remand Determination should be sustained as to the surrogate valuation of

garlic bulbs, cardboard cartons, and plastic jars and lids. See Def.-Ints. Reply Comments at 1, 3.

The Domestic Producers express no view concerning the Remand Determination on ocean freight

expenses. See id. at 1-3.

II. Standard of Review

In an action reviewing an antidumping determination by Commerce, the agency’s

determination must be upheld except to the extent that it is found to be “unsupported by substantial

evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i);

see also NMB Singapore Ltd. v. United States, 557 F.3d 1316, 1319 (Fed. Cir. 2009). Substantial

evidence is “more than a mere scintilla”; rather, it is “such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Universal Camera Corp. v. Nat’l Labor

Relations Bd., 340 U.S. 474, 477 (1951) (quoting Consol. Edison Co. v. Nat’l Labor Relations Bd.,

305 U.S. 197, 229 (1938)); see also Mittal Steel Point Lisas Ltd. v. United States, 548 F.3d 1375,

1380 (Fed. Cir. 2008) (same). Moreover, any evaluation of the substantiality of evidence “must take

into account whatever in the record fairly detracts from its weight,” including “contradictory

evidence or evidence from which conflicting inferences could be drawn.” Suramerica de Aleaciones

Laminadas, C.A. v. United States, 44 F.3d 978, 985 (Fed. Cir. 1994) (quoting Universal Camera

Corp., 340 U.S. at 487-88); see also Mittal Steel, 548 F.3d at 1380-81 (same).

That said, the mere fact that it may be possible to draw two inconsistent conclusions from

the record does not prevent Commerce’s determination from being supported by substantial
Court No. 06-00189 Page 7

evidence. Am. Silicon Techs. v. United States, 261 F.3d 1371, 1376 (Fed. Cir. 2001); see also

Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620 (1966). Finally, while Commerce must

explain the bases for its decisions, “its explanations do not have to be perfect.” NMB Singapore,

557 F.3d at 1319. Nevertheless, “the path of Commerce’s decision must be reasonably discernable,”

to support judicial review. Id. (citing Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29, 43 (1983)); see also Timken U.S. Corp. v. United States, 421 F.3d 1350, 1355 (Fed.

Cir. 2005) (explaining that “it is well settled that an agency must explain its action with sufficient

clarity to permit ‘effective judicial review,’” and that “[f]ailure to provide the necessary clarity

requires the agency action be vacated”) (quoting Camp v. Pitts, 411 U.S. 138, 142-43 (1973)); see

generally 19 U.S.C. § 1677f(i)(3)(A) (requiring Commerce to “include in a final determination . .

. an explanation of the basis for its determination”).

III. Analysis

Dumping occurs when goods are imported into the United States and sold at a price lower

than their “normal value,” resulting in material injury (or the threat of material injury) to the U.S.

industry. See 19 U.S.C. §§ 1673, 1677(34), 1677b(a). The difference between the normal value of

the goods and the U.S. price is the “dumping margin.” See 19 U.S.C. § 1677(35). When normal

value is compared to the U.S. price and dumping is found, antidumping duties equal to the dumping

margin are imposed to offset the dumping. See 19 U.S.C. § 1673.

Normal value is typically calculated using either the price in the exporting market (i.e., the

price in the “home market” where the goods are produced) or the cost of production of the goods,
Court No. 06-00189 Page 8

when the exporting country is a market economy country. See generally 19 U.S.C. § 1677b.5

However, where – as here – the exporting country has a non-market economy (“NME”), there is

often concern that the factors of production used to produce the goods at issue are under state

control, and that home market sales may not be reliable indicators of normal value. See 19 U.S.C.

§ 1677(18)(A).

In cases such as this, where Commerce concludes that concerns about the sufficiency or

reliability of the available data do not permit the normal value of the goods to be determined in the

typical manner, Commerce “determine[s] the normal value of the subject merchandise on the basis

of the value of the factors of production,” including “an amount for general expenses and profit plus

the cost of containers, coverings, and other expenses.” See 19 U.S.C. § 1677b(c)(1); see generally

Ningbo Dafa Chem. Fiber Co. v. United States, 580 F.3d 1247, 1250-51 (Fed. Cir. 2009) (briefly

summarizing “factors of production” methodology).6 The antidumping statute requires Commerce

to value factors of production “based on the best available information regarding the values of such

factors” in an appropriate surrogate market economy country – in this case, India. See 19 U.S.C.

§ 1677b(c)(1) (emphasis added); see also Shakeproof Assembly Components v. United States, 268

F.3d 1376, 1382 (Fed. Cir. 2001); Ningbo, 580 F.3d at 1254 (emphasizing that statute mandates that

5
In addition, in certain market economy cases, Commerce may calculate normal value using
the price in a third country (i.e., a country other than the exporting country or the United States).
See, e.g., RHP Bearings Ltd. v. United States, 288 F.3d 1334, 1338 (Fed. Cir. 2002) (discussing 19
U.S.C. §§ 1677b(a)(1)(B)(ii), 1677b(a)(1)(C)).
6
Factors of production “include, but are not limited to . . . hours of labor required, . . .
quantities of raw materials employed, . . . amounts of energy and other utilities consumed, and . .
. representative capital cost, including depreciation.” See 19 U.S.C. § 1677b(c)(3); see also Dorbest
Ltd. v. United States, 604 F.3d 1363, 1367 (Fed. Cir. 2010) (discussing factors of production).
Court No. 06-00189 Page 9

Commerce “shall” use “best available information” in valuing factors of production).

In determining which data constitute the “best available information,” Commerce generally

looks to the criteria set forth in its “Policy Bulletin 04.1,” also known as the “NME Surrogate

Country Policy Bulletin” and the “Surrogate Country Selection Bulletin.”7 Policy Bulletin 04.1

explains:

In assessing data and data sources, it is [Commerce’s] stated practice to use
investigation or review period-wide price averages, prices specific to the input in

7
Commerce’s reference to the document as the “Surrogate Country Selection Bulletin” is apt.
See, e.g., Remand Determination at 6; see also id. at 17-18; Issues and Decision Memorandum for
the [Tenth] Administrative Review and New Shipper Reviews of the Antidumping Duty Order on
Fresh Garlic from the People’s Republic of China (April 26, 2006) (Admin. Record Pub. Doc. 462)
(“Issues and Decision Memorandum”) at 31 & n.79, 33, 35 & n.90, 36, 37, 47. The stated purpose
of Policy Bulletin 04.1 is to “provide[] guidance regarding [Commerce’s] selection of surrogate
market economy countries in non-market economy (‘NME’) cases.” See Import Administration
Policy Bulletin 04.1, “Non-Market Economy Surrogate Country Selection Process,” at “Statement
of Issue” (March 1, 2004). The language on which Commerce relies in this and many other cases
appears in a section captioned “Data Considerations.” See Policy Bulletin 04.1, at “Data
Considerations.” The policy bulletin expressly states that the criteria outlined in that section are for
Commerce’s use in winnowing the agency’s list of potential surrogate countries “if more than one
country has survived the selection process to this point” (i.e., if more than one country on the list
of potential surrogates are economically comparable, produce comparable merchandise, and are
“significant” producers of such merchandise). Id. Thus, the policy bulletin explains, “a country that
perfectly meets the requirements of economic comparability and significant producer is not of much
use of as a primary surrogate if crucial factor price data from that country are inadequate or
unavailable.” Id. Accordingly, pursuant to the policy bulletin, Commerce decides from among two
or more countries that are economically comparable and significant producers of the merchandise
by “assessing data and data sources” in the respective candidate countries in accordance with the
criteria outlined in the section of the bulletin at issue. Id.

In short, the criteria outlined in the section of Policy Bulletin 04.1 captioned “Data
Considerations” were developed to serve as a “tie-breaker,” if necessary, in Commerce’s
identification of a surrogate country. The criteria were not promulgated for the purpose of guiding
Commerce’s selection of a surrogate value source from among alternative data sources after a
surrogate country has been identified. Nevertheless, Commerce has used the criteria for that purpose
here and in many other cases.
Court No. 06-00189 Page 10

question, prices that are net of taxes and import duties, prices that are
contemporaneous with the period of investigation or review, and publicly available
data.

See Import Administration Policy Bulletin 04.1, “Non-Market Economy Surrogate Country

Selection Process,” at “Data Considerations” (March 1, 2004); see also Remand Determination at

42 (quoting Policy Bulletin 04.1, and stating that it reflects agency’s “well-established practice for

determining the reliability and appropriateness of surrogate values under consideration”); id. at 6,

40, 47, 69-70, 73; Issues and Decision Memorandum for the [Tenth] Administrative Review and

New Shipper Reviews of the Antidumping Duty Order on Fresh Garlic from the People’s Republic

of China (April 26, 2006) (Admin. Record Pub. Doc. 462) (“Issues and Decision Memorandum”)

at 60-61, 63 & n.161, 66.8

Within this general framework, the statute “accords Commerce wide discretion in the

valuation of factors of production in the application of [the statute’s] guidelines.” See Shakeproof,

268 F.3d at 1381 (internal quotation marks and citation omitted); see also Ad Hoc Shrimp Trade

Action Committee v. United States, 618 F.3d 1316, 1320 (Fed. Cir. 2010) (same); Nation Ford

Chem. Co. v. United States, 166 F.3d 1373, 1377 (Fed. Cir. 1999) (same). Commerce is recognized

8
Because this action was previously remanded to Commerce in Zhengzhou Harmoni I, two
administrative records have been filed with the court: the initial administrative record (comprised
of the information on which the agency’s Final Results were based), and the supplemental
administrative record compiled on remand (on which the Remand Determination is based).

Because confidential information is included in the administrative records, there are two
versions of each: a public version and a confidential version. The public versions of the
administrative records consist of copies of all documents in the record, with confidential information
redacted. The confidential versions consist of complete, unredacted copies of only those documents
that include confidential information. All citations herein are to the public versions, which are cited
as “Admin. Record Pub. Doc. ____” and “Remand Pub. Doc. ____,” respectively.
Court No. 06-00189 Page 11

as the “master of antidumping law.” See The Thai Pineapple Public Co. v. United States, 187 F.3d

1362, 1365 (Fed. Cir. 1999); see also Shakeproof, 268 F.3d at 1381 (acknowledging “Commerce’s

special expertise”). And “[t]he process of constructing foreign market value for a producer in a non-

market economy country is difficult and necessarily imprecise.” Shakeproof, 268 F.3d at 1381.

Nevertheless, Commerce’s discretion is not boundless. In exercising its discretion,

Commerce is constrained by the purpose of the antidumping statute, which is “to determine

antidumping margins ‘as accurately as possible.’” See Shakeproof, 268 F.3d at 1382 (quoting

Lasko Metal Products, Inc. v. United States, 43 F.3d 1442, 1446 (Fed. Cir. 1994)). And,

Commerce’s discretion notwithstanding, “a surrogate value must be as representative of the situation

in the [non-market economy] country as is feasible.” See Nation Ford, 166 F.3d at 1377 (internal

quotation marks and citation omitted). Thus, “[i]n determining the valuation of . . . factors of

production, the critical question is whether the methodology used by Commerce is based on the best

available information and establishes antidumping margins as accurately as possible.” See Ningbo,

580 F.3d at 1257 (emphases added) (quoting Shakeproof, 268 F.3d at 1382) (internal quotation

marks omitted).

In the present case, pursuant to the remand instructions in Zhengzhou Harmoni I, Commerce

reconsidered various aspects of the agency’s valuation of the factors of production in the final results

of the tenth administrative review of the antidumping duty order covering fresh garlic from China.

As discussed in greater detail below, Commerce’s determination on remand concerning the surrogate

value for the Chinese Producers’ ocean freight costs must be sustained. On the other hand,

Commerce’s determinations as to garlic bulb, labor expenses, plastic jars and lids, and cardboard
Court No. 06-00189 Page 12

packing cartons must be remanded to the agency once again, for further consideration.

A. Valuation of Garlic Bulb

In the administrative review at issue, rather than valuing the Chinese Producers’ so-called

“growing” and “harvesting” factors of production (i.e., the garlic seed, water, fertilizer, labor, and

other “inputs” (commodities) consumed by Chinese producers in cultivating and harvesting whole

raw garlic bulb), Commerce broke with its past practice and employed the agency’s “intermediate

input methodology” to value the whole raw garlic bulb (the “intermediate input”) itself. See

Zhengzhou Harmoni I, 33 CIT at ____, ____, 617 F. Supp. 2d at 1288, 1291.9 Zhengzhou Harmoni

I rejected the Chinese Producers’ objections to Commerce’s use of its intermediate input

methodology here. See id., 33 CIT at ____, ____, ____, 617 F. Supp. 2d at 1289, 1295, 1334; see

9
For a summary overview of Commerce’s intermediate input methodology, see Jining
Yongjia Trade Co. v. United States, 34 CIT ____, ____ & n.6, 2010 WL 5121964 * 2 & n.6 (2010)
(explaining, inter alia, that, when Commerce employs its intermediate input methodolgy, “the cost
(or value) of the whole garlic bulb [is] used as a substitute for the costs of the growing and
harvesting [factors of production] (‘upstream FOPs’) actually reported by [the foreign producer at
issue]”).

In prior administrative reviews, Commerce used the agency’s standard upstream factors of
production methodology, rather than the intermediate input methodology employed here. In those
prior reviews, Commerce calculated separate surrogate values for garlic seed and other so-called
“growing” and “harvesting” factors of production. See Zhengzhou Harmoni I, 33 CIT at ____, ____,
____ n.19, 617 F. Supp. 2d at 1287-88, 1290-91, 1296 n.19; see also, e.g., Taian Ziyang Food Co.
v. United States, 33 CIT ____, ____, 637 F. Supp. 2d 1093, 1124-27 (2009) (“Taian Ziyang I”)
(analyzing Commerce’s valuation of garlic seed in ninth administrative review); Jinan Yipin Corp.
v. United States, 31 CIT 1901, 1924-30, 526 F. Supp. 2d 1347, 1367-72 (2007) (“Jinan Yipin I”)
(same, in eighth review). In the instant (tenth) administrative review (and in subsequent reviews),
Commerce used the intermediate input methodology, due to problems with the data reported by the
Chinese producers in past reviews for their “growing” and “harvesting” factors of production. See
Zhengzhou Harmoni I, 33 CIT at ____, ____, 617 F. Supp. 2d at 1287-88, 1290-91.
Court No. 06-00189 Page 13

generally id., 33 CIT at ____, 617 F. Supp. 2d at 1289-95 (reviewing the Chinese Producers’

objections to intermediate input methodology). On the other hand, Zhengzhou Harmoni I sustained

the Chinese Producers’ challenge to the surrogate value for raw garlic bulb that Commerce

calculated for use in the Final Results, principally on the grounds that the record evidence did not

establish that the data on which Commerce relied were sufficiently “product-specific.” See id., 33

CIT at ____, ____, ____, ____, 617 F. Supp. 2d at 1289, 1298-99, 1301, 1334; see generally id., 33

CIT at ____, 617 F. Supp. 2d at 1295-1301 (analyzing Chinese Producers’ challenge to surrogate

valuation of raw garlic bulb).

As Zhengzhou Harmoni I explained, the Chinese Producers’ garlic “is a large, high yield,

high-quality type of garlic that is distinct from the overwhelming majority of garlic grown in India.”

See Zhengzhou Harmoni I, 33 CIT at ____, 617 F. Supp. 2d at 1296; see also Issues and Decision

Memorandum at 42 (stating that “the primary characteristic that distinguishes the type of garlic

exported by [Chinese producers] from the majority of garlic sold in India” is the significantly larger

bulb size of Chinese garlic). In the Final Results, Commerce calculated a surrogate value of 22.91

rupees per kilogram for garlic bulb, using data from the Indian Agricultural Marketing Information

Network (“Agmarknet”) for a type of garlic referred to as “China” variety. See Zhengzhou Harmoni

I, 33 CIT at ____, 617 F. Supp. 2d at 1296-97; Issues and Decision Memorandum at 39-44, 47. As

support for the finding that India’s “China” variety garlic is sufficiently product-specific to the

Chinese Producers’ large-bulb garlic, the Final Results relied on information drawn from “Market

Research on Fresh Whole Garlic in India,” a June 2003 report prepared by consultants to the

Domestic Producers, which the Domestic Producers placed on the record of this administrative
Court No. 06-00189 Page 14

review. See Zhengzhou Harmoni I, 33 CIT ____, 617 F. Supp. 2d at 1297-98; see also Issues and

Decision Memorandum at 40-41; Domestic Producers’ Surrogate Value Submission (Admin. Record

Pub. Doc. 417), Exh. 33 (“Market Research Report”).10

Relying on the Market Research Report and additional information on the record, the Final

Results explained that Chinese garlic exported to the United States is characterized by its large bulb

size (with an average diameter of greater than 40 millimeters); that the bulb diameter of local, native

garlic typically grown and sold in the Indian market is a mere 20 to 40 millimeters; and that, in

India, cultivation of large-bulb garlic is generally confined to the country’s “long-day” zone, which

enjoys longer periods of sunlight. See Zhengzhou Harmoni I, 33 CIT at ____, 617 F. Supp. 2d at

1297; Issues and Decision Memorandum at 41-44; Market Research Report at 4, 7, 11, 12, 17-18.

Based on this and other information, the Final Results concluded that the Agmarknet data for

“China” variety garlic must represent sales of large-bulb garlic from India’s “long-day” zone. See

Zhengzhou Harmoni I, 33 CIT at ____, 617 F. Supp. 2d at 1298; see also Issues and Decision

Memorandum at 40-42.

But the Agmarknet data provide no description of the physical characteristics of “China”

variety garlic (or any other variety of garlic reflected therein). See Zhengzhou Harmoni I, 33 CIT

10
The Market Research Report was first placed on the record of the eighth administrative
review of the antidumping order on fresh garlic from China. See Market Research Report; see also
Jinan Yipin I, 31 CIT at 1926-29, 526 F. Supp. 2d at 1369-72 (discussing Market Research Report
in context of eighth administrative review). The same Market Research Report was later placed on
the record of the second remand in litigation involving the ninth administrative review, as well as
the record of the review here at issue. See Market Research Report; Zhengzhou Harmoni I, 33 CIT
at ____, 617 F. Supp. 2d at 1297-98; Taian Ziyang Food Co. v. United States, 35 CIT ____, ____
& n.11, 2011 WL 3024720 * 6 & n.11 (2011) (“Taian Ziyang II”) (reviewing second remand
determination in ninth administrative review).
Court No. 06-00189 Page 15

at ____, 617 F. Supp. 2d at 1297-99; see also Issues and Decision Memorandum at 42 (noting that

Agmarknet data do not include descriptions of garlic varieties reflected in the data). Noting that the

Final Results apparently relied on the Agmarknet data “based on nothing more than perhaps the

name of the variety, and the fact that [the “China” variety] had a higher weighted-average price,”

Zhengzhou Harmoni I held that the Final Results were therefore “largely speculative and

conclusory” and “lack[ed] adequate support in the evidentiary record.” See Zhengzhou Harmoni

I, 33 CIT at ____, 617 F. Supp. 2d at 1297-98. Zhengzhou Harmoni I concluded that, absent some

proof of the physical characteristics of “China” variety garlic, Commerce’s decision to use the

Agmarknet data in the Final Results was not supported by substantial evidence and could not be

sustained on the then-existing record. See id., 33 CIT at ____, 617 F. Supp. 2d at 1297-98. The

valuation of raw garlic bulb was thus remanded to the agency for further consideration. See id., 33

CIT at ____, ____, ____, 617 F. Supp. 2d at 1289, 1301, 1334.

In addition to the Chinese Producers’ concerns about product specificity (discussed above),

Zhengzhou Harmoni I addressed a number of other issues. See generally Zhengzhou Harmoni I, 33

CIT at ____, 617 F. Supp. 2d at 1299-1301. Notably, the Chinese Producers argued that the

Agmarknet data actually reflect a final product and not an intermediate input at all. Specifically, the

Chinese Producers asserted that, because the Agmarknet prices – by definition – represent fresh

garlic sold at market, the prices do not reflect an intermediate product and inherently include post-

harvest factors of production. See id., 33 CIT at ____, 617 F. Supp. 2d at 1300. The Chinese

Producers thus contended that the Final Results “impermissibly inflated the surrogate value of fresh

garlic by adding additional post-harvest factors of production (e.g., sales, packing, and transportation
Court No. 06-00189 Page 16

costs) to a figure that already reflected such costs.” See id., 33 CIT at ____, 617 F. Supp. 2d at

1300. Zhengzhou Harmoni I instructed Commerce, on remand, to consider “the potential for double

counting that may result when using data from the Agmarknet database, which presumably contains

information regarding Indian market transactions and is representative of the final garlic product

rather than an intermediate garlic product (i.e., garlic bulb).” See id., 33 CIT at ____, 617 F. Supp.

2d at 1300. Zhengzhou Harmoni I specifically cautioned that, “when valuing an intermediate

product in [a non-market economy] country case, [Commerce] must find a surrogate representative

of that intermediate product.” See id., 33 CIT at ____, 617 F. Supp. 2d at 1300.

On remand, Commerce reexamined the three sets of potential surrogate value data considered

in the Final Results, including the Agmarknet prices, although the agency took no action to obtain

information on the physical characteristics of the “China” variety garlic reflected in the Agmarknet

data and used in the Final Results. See Remand Determination at 6-8, 15. Other than the Agmarknet

data, the Remand Determination also reconsidered Indian import statistics derived from the World

Trade Atlas11 for Indian Harmonized Tariff Schedule subheading 0703.2000 (“garlic, fresh or

chilled”), as well as Indian price data for garlic seed from the National Horticultural Research and

Development Foundation (“NHRDF”), which were placed on the record by the Domestic Producers

and relied on by the agency in previous administrative reviews. See id. at 6-7, 15. In the course of

the remand, Commerce also placed on the record a fourth set of data, which the agency used to value

11
The World Trade Atlas is “a database of commodities using all levels of the Harmonized
Tariff Schedule,” which “enables users to determine the value of a specific product and identify
countries to or from which the product is being exported or imported.” See Zhengzhou Harmoni I,
33 CIT at ____ n.20, 617 F. Supp. 2d at 1296 n.20 (internal quotation marks and citation omitted).
Court No. 06-00189 Page 17

garlic bulb in the eleventh administrative review (as well as other subsequent reviews) – i.e.,

information on garlic prices at the produce market near Delhi operated by the Azadpur Agricultural

Produce Marketing Committee (“APMC”), as published in the Azapur APMC’s “Market

Information Bulletin,” for the two-and-one-half-month period from May 1, 2006 through July 14,

2006. See id. at 2, 6, 10, 13, 15; Letter from Commerce to All Interested Parties (June 5, 2009)

(Remand Pub. Doc. 1) (placing on the record Azadpur APMC’s “Market Information Bulletins” for

May 1, 2006-July 14, 2006) (“Azadpur APMC data”); n.44, infra (discussing use of Azadpur APMC

data in subsequent reviews).

The Remand Determination emphasized the large bulb size of the Chinese Producers’ garlic

(50 mm and above), and the significant role that bulb size plays in garlic pricing. See Remand

Determination at 10-11. Citing the concerns identified in Zhengzhou Harmoni I (particularly the

lack of any physical description of the garlic reflected in the Agmarknet data), the Remand

Determination declined to rely on the Agmarknet data to value garlic bulb. See id. at 5, 7-8, 15.

Further, the Remand Determination again rejected the Indian import statistics as “insufficiently

specific” due to the “basket” nature of the tariff subheading at issue. See id. at 7, 8, 15; see also

Zhengzhou Harmoni I, 33 CIT at ____, 617 F. Supp. 2d at 1296. The Remand Determination

similarly rejected the NHRDF data on garlic seed, concluding that those data would “require a

prohibitive level of adjustment” in order to calculate a value for garlic bulb. See Remand

Determination at 15; see also id. at 7.

Much as Commerce has done in other recent reviews, the Remand Determination based the

surrogate value for garlic bulb here on the Azadpur APMC data, averaging the values for “A”- and
Court No. 06-00189 Page 18

“S.A.”-grade garlic. See generally Remand Determination at 9-15, 53-59. Relying on the Azadpur

APMC data, the Remand Determination calculated a final value of 33.77 rupees per kilogram – a

significantly higher figure than the 22.91 rupees per kilogram established in the Final Results. See

Analysis for the Redetermination of Remand in the Administrative Review of the Antidumping Duty

Order on Fresh Garlic from the People’s Republic of China: Jinan Yipin Corporation, Ltd. (Remand

Pub. Doc. 19) at 2; Issues and Decision Memorandum at 39, 44, 47.

The Remand Determination concluded that the Azadpur APMC data constitute “the best

information available with which to value [the Chinese Producers’] garlic bulb,” even though –

much like the Agmarknet data – the Azadpur APMC data do not describe the physical characteristics

of the garlic to which they refer. See Remand Determination at 14; Azadpur APMC data. To

establish the “product specificity” of the Azadpur APMC data, the Remand Determination therefore

relied on the Market Research Report to find that grade “A” garlic has a bulb diameter of “[a]bove

40 mm (typically 40-55 mm).” See Remand Determination at 11; Market Research Report at 21.

Similarly, the Remand Determination relied on information submitted by the Domestic Producers

to find that the bulb diameter of “S.A.”-grade garlic is 55 mm or more. See Remand Determination

at 11; Domestic Producers’ Comments on New Surrogate Value Information (June 24, 2009)

(Remand Pub. Doc. 3) at 4 (explaining that “S.A.”-grade garlic has bulb diameter “greater than 5.5

cm”).12

Reiterating that a major determinant of the market price of garlic is bulb size, Commerce

12
At one point, the Remand Determination mistakenly states that “S.A.”-grade garlic has a
bulb diameter of “40 mm . . . and above.” See Remand Determination at 9; but see id. at 11 (noting
that bulb size of “S.A.”-grade garlic is “greater than 55 mm”).
Court No. 06-00189 Page 19

gave greater weight to bulb size and “product specificity” in choosing the surrogate value on

remand. See Def. Response at 7; Remand Determination at 8-9, 10-11, 14 (emphasizing significance

of bulb size and garlic prices); id. at 10, 14 (discussing relationship among criteria set forth in Policy

Bulletin 04.1). However, the Remand Determination also addressed other criteria set forth in Policy

Bulletin 04.1, and concluded that the Azadpur APMC data satisfy those too.

For example, the Remand Determination found that the Azadpur APMC data are “publicly

available,” noting that – although the Azadpur APMC Bulletins are not available online – the data

are “readily available to [the] intended audience,” and “are published on each trading day (six days

a week), [are] posted in the APMC’s facilities for public viewing, are electronically archived and

are available upon request.” See Remand Determination at 13-14 (discussing public availability of

Azadpur APMC data); see also id. at 58 (same).13

The Remand Determination further found that the Azadpur APMC data are sufficiently

“contemporaneous,” explaining that Commerce chose the data set beginning May 1, 2006 because

that is the date on which the Azadpur APMC market began differentiating between “A”- and “S.A.”-

grade garlic. See Remand Determination at 14, 58. Because the Azadpur APMC data thus post-date

the period of review by more than one-and-one-half years, Commerce deflated the Azadpur APMC

value to be contemporaneous with the period of review, using the International Monetary Fund

(“IMF”) “Wholesale Price Index.” See Remand Determination at 10, 14-15; Def. Response at 8; see

13
The Remand Determination states at one point that “the APMC bulletins are available daily
online at the Azadpur APMC’s website,” and that “historical bulletins are available upon request.”
See Remand Determination at 58. However, Commerce elsewhere states flatly that “the APMC
Bulletin is not obtainable on the Internet.” See id. at 13-14.
Court No. 06-00189 Page 20

generally Remand Determination at 14, 58 (discussing contemporaneity of Azadpur APMC data).

In addition, Commerce also deducted a 6% “market fee” that is assertedly charged on all sales made

at the Azadpur APMC market. See Remand Determination at 15, 59.14

Finally, while the Azadpur APMC data reflect only two-and-one-half months of information

(rather than the full year covered by the period of review), the Remand Determination nevertheless

found that the data “represent[] a broad market average of large-bulb garlic [prices],” reasoning,

among other things, that the Azadpur APMC market sells “agricultural products from all over

India,” and asserting that the data reflect “a substantial quantity of garlic.” See Remand

Determination at 12-13, 57; see generally id. at 12-13, 57-58, 58-59 (discussing “representativeness”

of Azadpur APMC data).

As detailed below, the Chinese Producers challenge the Remand Determination’s conclusion

that the Azadpur APMC data constitute the “best available information” for use in valuing garlic

bulb, highlighting this as Commerce’s “most critical surrogate value decision,” and attacking the

Azadpur APMC data on multiple fronts. See Remand Determination at 14; Pls. Reply Comments

at 3; see generally Pls. Comments at 2-18 (challenging Remand Determination as to valuation of

garlic bulb); Pls. Reply Comments at 2-12 (same). The Government defends Commerce’s use of

the Azadpur APMC data, arguing that “they were the most product-specific information on the

record and also met Commerce’s other preferred criteria for surrogate values,” and asserting that the

14
Although the Remand Determination refers to the 6% charge as a “market fee,” the
Azadpur APMC data on the record list the 6% charge as a “Commission,” in addition to a “Market
Fee” of 1%. See Azadpur APMC data (section captioned “Information at A Glance”). There is no
indication that the 1% charge has been accounted for, assuming that this information is correct.
Court No. 06-00189 Page 21

Remand Determination as to valuation of garlic bulb should therefore be sustained. See Def.

Response at 5, 9, 16; see generally id. at 4-16 (addressing Remand Determination as to valuation

of garlic bulb). The Domestic Producers support the Remand Determination’s use of the Azadpur

APMC data. See Def.-Ints. Reply Comments at 1-2.

1. “Contemporaneity” of Azadpur APMC Data

As discussed in the introduction to section III above, Policy Bulletin 04.1 sets forth

Commerce’s “well-established criteria for determining the appropriateness of surrogate values under

consideration.” See Remand Determination at 6; Policy Bulletin 04.1; see generally section III,

supra (discussing, inter alia, Policy Bulletin 04.1). According to that policy, “it is [Commerce’s]

stated practice to use . . . prices that are contemporaneous with the period of investigation or

review.” See Policy Bulletin 04.1 (emphasis added) (quoted in Remand Determination at 6). The

Remand Determination further states that “[i]n the selection of surrogate values for garlic bulbs,

[Commerce is] . . . seeking to select as a surrogate value a . . . price average that is . . .

contemporaneous with the period of review” (i.e., November 1, 2003 through October 31, 2004).

See Remand Determination at 6. Nevertheless, the Azadpur APMC data that Commerce ultimately

selected to value garlic bulbs on remand date from mid-2006. See Remand Determination at 14.

The Chinese Producers criticize the Remand Determination’s use of the Azadpur APMC

data, emphasizing that the data are “far from contemporaneous” and, indeed, are the least

contemporaneous of the four sets of data on this administrative record. See Pls. Comments at 12;

see generally Pls. Comments at 2-3, 12-13; Pls. Reply Comments at 8; Remand Determination at
Court No. 06-00189 Page 22

14, 53, 57-58; Def. Response at 13-14. The Chinese Producers note that the Remand Determination

candidly acknowledges that the APMC data are not contemporaneous, but that Commerce concludes

that, as adjusted, the APMC prices are the best available information, because the Azadpur APMC

data are – according to the Remand Determination – the most product-specific. See Pls. Comments

at 12; see also Pls. Reply Comments at 8; Remand Determination at 14.

Although the Chinese Producers stress that the Azadpur APMC data are from

“approximately two years after the mid-point of the period of review,” the Chinese Producers

significantly do not contest any aspect of the methodology that Commerce used to deflate the value

that Commerce derived based on the Azadpur APMC data from mid-2006 levels to be

contemporaneous with the period of review. See Pls. Comments at 2-3; see also Pls. Reply

Comments at 8 (arguing that Azadpur APMC data are “two years removed” from the period of

review) (emphasis omitted); see generally Pls. Comments at 12-13 (discussing contemporaneity of

Azadpur APMC data, but raising no challenge to deflation methodology); Pls. Reply Comments at

8 (same); Def. Response at 8 (stating that Commerce deflated Azadpur APMC data using the IMF

Wholesale Price Index).15

What the Chinese Producers do dispute – vigorously – is the Government’s assertion that the

Remand Determination “reasonably gave greater weight to product-specificity over

15
See also Remand Determination at 10, 14 (stating that, when data selected for surrogate
value post-date the period of review, Commerce’s “normal practice” is to deflate the data to be
contemporaneous); Letter from Commerce to All Interested Parties (July 6, 2009) (Remand Pub.
Doc. 6) (summarizing deflation methodology; explaining that Commerce placed on the record
“Indian price data obtained from the International Monetary Fund’s (‘IMF’) online database . . .
from November 1, 2003, to July 2006,” and used the IMF data to deflate the value that Commerce
calculated from the Azadpur APMC data to be contemporaneous with the period of review here).
Court No. 06-00189 Page 23

contemporaneity.” See Def. Response at 13-14 (citing, inter alia, Remand Determination at 14); id.

at 7, 8 (same); Pls. Reply Comments at 8; see also Pls. Comments at 12 (arguing that “Commerce’s

repeated argument that it must use the non-contemporaneous APMC prices because they are ‘more

specific’ . . . is unpersuasive”); Remand Determination at 14 (discussing trade-off between product

specificity and contemporaneity, and stating that Commerce “does not automatically disregard

surrogate value data which are the most specific . . . solely on the basis that they are post-[period of

review] data”). In particular, the Chinese Producers insist that “it is clear that the [Azadpur] APMC

prices are not specific to the intermediate input [garlic] bulb and are heavily inflated and distorted

by other unknown factors. A simple deflating of the [Azadpur APMC] prices does not remedy these

serious [product specificity] deficiencies.” See Pls. Comments at 12; see also Pls. Reply Comments

at 8.16

The Chinese Producers thus do not actually challenge the Remand Determination’s use of

the Azadpur APMC data on grounds of contemporaneity. But see n.21, infra (questioning Remand

Determination’s use of non-contemporaneous Azadpur APMC data to value garlic with a bulb size

of 40 mm or more, since the Remand Determination and the Market Research Report indicate that

16
According to the Chinese Producers, “the Indian import statistics and the Agmarknet prices
are fully contemporaneous with the [period of review] and provide a far more accurate
representation of the true market price in India during the [period of review].” See Pls. Comments
at 12. The NHRDF data also reflect one full year and are contemporaneous with the period of
review, except that they do not include data for October 2004 (the last month of the period of
review). See Factors Valuations for the Preliminary Results of the Administrative Review and New
Shipper Reviews (Admin. Record Pub. Doc. 400) at 5 (indicating that NHRDF data include
NHRDF quarterly newsletters for October-December 2003, January-March 2004, April-June 2004,
and July-September 2004).
Court No. 06-00189 Page 24

contemporaneous data were available).17 The Chinese Producers’ true, underlying concerns go to

the product specificity of the Azadpur APMC data, and are discussed in section III.A.3, below.

2. “Representativeness” of Azadpur APMC Data

Policy Bulletin 04.1, which sets forth Commerce’s “well-established criteria for determining

the appropriateness of surrogate values under consideration,” explains that “it is [Commerce’s]

stated practice to use . . . review period-wide price averages.” See Policy Bulletin 04.1 (emphasis

added) (quoted in Remand Determination at 6). Moreover, throughout the Remand Determination,

Commerce repeatedly reiterates that it has “historically chosen to use surrogate values that reflect

broad market averages and that cover a substantial time period over price data that are obtained

from so isolated a time frame as to be subject to temporary market fluctuations.” See, e.g., Remand

Determination at 44 (emphases added); id. at 48 (same).18 It is thus Commerce’s standard practice

17
Although the Chinese Producers do not raise a “contemporaneity” challenge to
Commerce’s reliance on the Azadpur APMC data (which postdate the period of review by roughly
two years), it is worth noting that the agency’s position here stands in stark contrast to its position
on the contemporaneity of the Chinese Producers’ price quotes for plastic jars and lids and cardboard
packing cartons (which are much more contemporaneous than the Azadpur APMC data). See
generally section III.D.4.b, infra (discussing the contemporaneity of the price quotes for plastic jars
and lids); section III.E, infra (discussing the contemporaneity of the price quotes for cardboard
packing cartons).
18
See also Remand Determination at 40 (noting that, pursuant to Policy Bulletin 04.1, it is
Commerce’s general practice “to use investigation or review period-wide price averages”) (internal
quotation marks omitted); id. at 42 (same); id. at 43 (asserting that Commerce cannot confirm that
price quotes for cardboard cartons are “representative of prices in the Indian market during the
[period of review]”); id. at 45 (stating that, in Synthetic Indigo from the People’s Republic of China,
Commerce could not determine that price quotes “were representative of the range of prices for the
input during the [period of review]”); id. at 46 (stating that Indian import statistics selected for use
in valuing cardboard cartons are “representative of a range of prices throughout the [period of
review]”); id. at 47 (criticizing price quotes for plastic jars and lids, asserting that they “are not
Court No. 06-00189 Page 25

to seek out values that are both temporally and geographically “representative” of the particular

input (here, raw garlic bulb) at issue. The Chinese Producers contend that, by using the Azadpur

AMPC data in the Remand Determination, Commerce failed on both counts. See Pls. Comments

at 23 (emphasizing that, inter alia, the Azadpur APMC data “are from a single market” and are

“taken from a very limited window of time”).19

a. Temporal Representativeness

Notwithstanding Commerce’s “well-established criteria” and its stated desire to “select as

a surrogate value a period-wide price average,” Commerce here elected on remand to calculate a

surrogate value for the Chinese Producers’ raw garlic bulb using the Azadpur APMC data, which

are not only non-contemporaneous (see section III.A.1, above), but, in addition, represent less than

a quarter of a year’s worth of data. See Remand Determination at 6 (emphasis added); see also id.

at 9 (noting that Azadpur APMC data cover period May 1, 2006 through July 14, 2006); id. at 71,

74 (acknowledging that Azadpur APMC data “encompass a limited time span” and do not represent

representative of prices throughout the [period of review]”); id. at 48 (stating that, on the existing
record, “it is impossible to confirm that the [price quotes for plastic jars and lids] are . . .
representative of prices in the Indian market during the [period of review]”); id. (asserting that “the
record does not demonstrate that the submitted price quotes [for plastic jars and lids] are
representative of . . . prices during the [period of review]”); id. at 49 (stating that, in Synthetic Indigo
from the People’s Republic of China, Commerce could not determine that price quotes “were
representative of the range of prices for the input during the [period of review]”); id. at 50
(concluding that Indian import statistics are best available data for use in valuing plastic jars and lids
because, inter alia, they are “representative of a range of prices throughout the [period of review]”).
19
In litigation challenging the twelfth “new shipper” reviews, the “representativeness” of the
Azadpur APMC data was sustained against arguments generally similar to some of the arguments
raised by the Chinese Producers here. See generally Jining Yongjia Trade Co., 34 CIT at ____,
2010 WL 5121964 * 13 (discussing “Broad Market Average of Super A Grade Garlic Values”).
Court No. 06-00189 Page 26

full year of data).20 To be sure, as the Remand Determination observes, “[t]here is no statutory or

regulatory requirement that [Commerce] use an entire year” of data. See id. at 57-58. However,

while the Remand Determination explains why Commerce selected non-contemporaneous data

(beginning May 1, 2006), and explains that the value that Commerce derived from the 2006 data was

deflated to be contemporaneous with the period of review at issue here, the Remand Determination

is silent as to why Commerce chose to use only two-and-one-half months of data, rather than

deflating and using data for an entire year. See id. at 58 (explaining that Azadpur APMC Bulletin

began listing prices for “S.A.”-grade garlic as of May 1, 2006).21

20
See also Remand Determination at 57 (noting Chinese Producers’ arguments that Azadpur
APMC data are “not sufficiently broad-based” because they “do[] not reflect an entire year” of data);
id. at 53 (same); Pls. Comments at 23 (emphasizing that “[t]he APMC prices are . . . taken from a
very limited window of time”). .

In contrast to the Azadpur APMC data on which the Remand Determination relies, the other
three data sets on the administrative record – i.e., the Agmarknet price data, the Indian import
statistics, and the NHRDF data – all reflect one full year of data, and all three are contemporaneous
with the period of review (with one minor exception as to the NHRDF data). See Factors Valuations
for the Preliminary Results of the Administrative Review and New Shipper Reviews (Admin.
Record Pub. Doc. 400) at 6 (stating that Agmarknet data on the record include India-wide data for
garlic values “for each day of the period of this review”); id. (stating that Indian import statistics on
the record cover “the period November 2003 through October 2004”); id. at 5 (stating that NHRDF
data on the record consist of NHRDF quarterly newsletters for October-December 2003, January-
March 2004, April-June 2004, and July-September 2004, thus covering one full year, and the entire
period of review with the exception of October 2004, the last month of the period of review).
21
The Remand Determination states that Commerce “chose to use price data from the
Azadpur APMC starting on May 1, 2006, because that was the date at which the Azadpur APMC
began denoting large size garlic bulb sales into ‘A’ and ‘Super-A’ values.” See Remand
Determination at 58. The Remand Determination thus makes it clear that May 1, 2006 was not the
first day on which what is now known as “S.A.”-grade garlic was sold at the Azadpur APMC, or the
first day on which large-bulb garlic was sold at the Azadpur APMC, but – rather – that May 1, 2006
was the first day on which large-bulb garlic was separated into grade “A” and grade “S.A.” garlic.
The Market Research Report confirms that, before that date, all such large-bulb garlic was sold
Court No. 06-00189 Page 27

The Remand Determination similarly fails to explain how Commerce has assured itself that

data “obtained from so isolated a time frame as to be subject to temporary market fluctuations” in

fact are not distorted by such “fluctuations.” See, e.g., Remand Determination at 44; id. at 48

(same). Indeed, the Market Research Report seems to indicate that garlic prices in India are subject

to seasonal fluctuation:

Being a seasonal crop, the price of garlic (at both the wholesale and retail level) is
determined by demand-supply factors. Prices generally remain low during the peak
supply period (February to May) when the new crop arrives and begin to rise
thereafter peaking towards the end of the year (October-December).

Market Research Report at 19; see also id. at 26 (noting that “garlic is a seasonal crop,” and that

simply as grade “A.” See, e.g., Market Research Report at 21 (indicating that, as of 2003, “Grade
A” garlic was garlic with a bulb diameter of anything “Above 40 mm (typically 40-55 mm)”). As
such, it is entirely unclear why the May 1, 2006 date has any significance for Commerce’s selection
of data for this review, since Commerce here decided to rely on data for grade “A” garlic, as well
as garlic graded “S.A.”

In other words, if (as the Remand Determination and the Market Research Report indicate)
what was sold as grade “S.A.” garlic on May 1, 2006 was being sold in 2003 (up through April
2006) as grade “A” garlic, and given Commerce’s determination that both “A”- and “S.A.”-grade
garlic should be used in valuing the raw garlic bulb here, there would appear to be no reason for
Commerce to use non-contemporaneous data from the Azadpur APMC market. All other things
being equal, Commerce could (and should) have used contemporaneous Azadpur APMC data for
grade “A” garlic for the actual period of review (November 1, 2003 through October 31, 2004),
because – according to the Remand Determination and the Market Research Report – those
contemporaneous data would include what (as of May 1, 2006) became known as grade “A” and
grade “S.A.” garlic. It is worth underscoring that, in support of its claims concerning the “public
availability” of the Azadpur APMC data, the Remand Determination notes several times that
Azadpur APMC data for past years are “electronically archived” and readily “available upon
request.” See, e.g., Remand Determination at 13-14, 58.

For a variety of reasons discussed herein, Commerce’s selection of a surrogate value for raw
garlic bulb must be remanded for a second time. This particular issue obviously should be clarified
and addressed by the agency on remand.
Court No. 06-00189 Page 28

“domestic garlic prices tend to rise” from “August-December”); id. at 19-20, 22 (charting wholesale

and retail price trends); Pls. Reply Comments at 8 (referring to “drastic fluctuations of the available

‘A’ and ‘S.A.’ garlic prices from 1000 Rupees to 2425 within the span of just a few months”).22

The Remand Determination acknowledges that the Azadpur APMC data cover a mere two-

and-one-half months, but maintains that the data are nevertheless “broad-based” because the data

reflect “a substantial quantity of garlic.” See Remand Determination at 57; see also id. at 71, 74

(stating that Azadpur APMC data reflect “an extremely high volume of sales”); Def. Response at

22
Commerce’s action in turning a blind eye to the problem of the temporal representativeness
of garlic prices here is difficult to square with its position on the price quotes that the Chinese
Producers have submitted for plastic jars and lids and for cardboard packing cartons.

As noted above, there is affirmative record evidence of significant seasonal fluctuation in
garlic prices; and – even if there were no such affirmative evidence – seasonal fluctuation in the
prices of agricultural produce is the norm. See Market Research Report at 19, 20, 22 (documenting
seasonal fluctuations in Indian prices for fresh garlic); section III.D.4.b, infra (noting that not all
commodities or factors of production are equally susceptible to price fluctuations, and that
agricultural produce in particular is frequently subject to seasonal fluctuation). Nevertheless,
Commerce expressed no concern about distortion resulting from “temporary market fluctuations”
in the price of garlic.

On the other hand, Commerce has expressed major concerns about the temporal
representativeness of the price quotes for plastic jars and lids and cardboard packing cartons. See,
e.g., Remand Determination at 58-59 (asserting that prices of jars and lids and cardboard cartons are
“substantially more vulnerable to abnormal market fluctuations” than garlic prices); id. at 57-58
(seeking to contrast “the volume of sales” reflected in the Azadpur APMC data with price quotes
for cartons and jars); id. at 71, 74 (asserting that prices of cartons and jars and lids are “highly
susceptible to market fluctuations”). Yet, unlike fresh garlic, there is no affirmative record evidence
of fluctuation in the prices of plastic jars and lids and cardboard packing cartons. Nor is there any
obvious reason why, unlike fresh garlic, the prices of jars and lids and cardboard cartons would be
subject to any significant fluctuation over the course of a year. See section III.D.4.b, infra
(analyzing Commerce’s criticisms of the “representativeness” of price quotes for jars and lids);
section III.E, infra (analyzing Commerce’s criticisms of the “representativeness” of price quotes for
cardboard cartons); see also Remand Determination at 57-58, 58-59, 71, 73-74; Pls. Comments at
23, 29; Def. Response at 26, 28-29.
Court No. 06-00189 Page 29

26 (same). The Remand Determination thus seeks to buttress Commerce’s claims that the Azadpur

APMC data are temporally “representative” by asserting that a high volume of garlic sufficiently

compensates for the lack of temporal “representativeness.” As the Chinese Producers demonstrate,

however, the Remand Determination’s claims as to the representativeness and significance of the

Azadpur APMC data cannot withstand scrutiny. See generally Pls. Comments at 9-10; Pls. Reply

Comments at 5-6.

The Remand Determination’s analysis of the representativeness of the Azadpur APMC data

(and, to some extent, the related sections of the Government’s brief) are replete with both

fundamental errors in logic and flagrant mistakes of fact. For example, as quoted above, the

Remand Determination states that, although the Azadpur APMC data cover only two-and-one-half

months, the data “contain a substantial quantity of garlic.” See Remand Determination at 57. As

a matter of pure logic, however, the lack of temporal representativeness cannot be cured by the

quantity of the commodity or the number of data points reflected in the limited time period.

Assume, for example, that a party proffered to Commerce data from some source that reflected 5,000

sales of “S.A.”-grade garlic, or data from some source that reflected 50 sales of “S.A.”-grade garlic

of 100 pounds each, but those sales were on a single day. In such a case, no matter how great the

total quantity of the commodity sold or the total number of sales reflected in the data, those data

logically could not reflect seasonal or other price fluctuations, and therefore could not “represent”

a full year of data. The statement in the Remand Determination is thus illogical, because it equates

volume or number of sales with temporal representativeness. This flaw in logic pervades and taints

the Remand Determination’s entire analysis of representativeness. Commerce’s analysis of temporal
Court No. 06-00189 Page 30

representativeness is built on quicksand.

The statement from the Remand Determination quoted above is illogical for a second,

equally important reason. Even assuming (as the Remand Determination does) that the volume or

number of sales compensates (in some fashion) for a lack of temporal representativeness (which it

does not), the issue at hand is whether the Azadpur APMC data are sufficiently representative of

prices for grades “A” and “S.A.” garlic. However, the statement quoted above asserts simply that

the Azadpur APMC data “contain a substantial quantity of garlic,” without reference to grade. See

Remand Determination at 57. Thus, as a matter of pure logic, the statement in the Remand

Determination does nothing to support the Remand Determination’s claims concerning the

representativeness of the Azadpur APMC data as to the specific grades of garlic at issue here.

Other statements in the Remand Determination reflect egregious factual errors, and

demonstrate that Commerce does not understand either the meaning of the Azadpur APMC data or

their limitations. Careful review of the Azadpur APMC data reveals that those data tell Commerce

absolutely nothing about the volumes of “A”- and “S. A.”-grade garlic that were delivered to the

Azadpur APMC market during the two-and-one-half month period, because all Azadpur APMC data

on volume are aggregate data for all grades of garlic as a whole. In other words, the Azadpur

APMC data on volume are not broken down by grade of garlic. From the Azadpur APMC data on

the existing record, it is therefore simply not possible to determine the quantity of grades “A” and

“S.A.” garlic that were delivered to the Azadpur APMC market during the two-and-one-half month

period. See Azadpur APMC data; Remand Determination at 53, 58 (noting Chinese Producers’

point that Azadpur APMC data specifies only total aggregate volume of garlic, and does not break
Court No. 06-00189 Page 31

that figure down by grades of garlic); Pls. Comments at 5, 9-10; Pls. Reply Comments at 6.23

Moreover, even as to all grades of garlic as a whole, the Azadpur APMC data tell Commerce

nothing whatsoever about actual garlic sales (except to the extent that one assumes that all garlic

delivered to the Azadpur APMC market eventually sells, at some price), because the Azadpur

APMC data provide no specific information on sales, and instead document only arrivals (deliveries)

of garlic at the market. See Azadpur APMC data; see also Remand Determination at 53, 58 (noting

Chinese Producers’ point that Azadpur APMC data does not document sales, and instead documents

only volume of garlic delivered to market); Pls. Comments at 5, 9 (same).24 But, in any event, even

23
On each market day, the Azadpur APMC data report the total volume (in tons) of garlic of
all grades that arrived at the market the preceding market day, in a column captioned “Arrival
Variety in Tons.” See Azadpur APMC data; Letter from Commerce to All Interested Parties (June
5, 2009) (Remand Pub. Doc. 1) (stating that Azadpur APMC Bulletins include data from “the
previous trading day”). Another column, captioned “Grade/Size,” lists the grades of garlic offered
for sale on that day. See Azadpur APMC data. However, the volume of garlic arriving at the market
is not broken down by grade of garlic. See id. Thus, from the Azadpur APMC data on the record,
it is impossible to determine the volume of grade “A” and/or “S.A.” garlic delivered to the Azadpur
APMC market on any given day, or even the aggregate volume of grades “A” and “S.A.” garlic
delivered during the entire two-and-one-half month period reflected in the data that Commerce
placed on the record.
24
As noted above, for each market day, the Azadpur APMC data report the total volume (in
tons) of garlic of all grades that arrives at the Azadpur APMC market, in a column captioned
“Arrival Variety in Tons.” See Azadpur APMC data. Another column, captioned “Grade/Size,”
lists the grades of garlic offered for sale on that day. See id. And the day’s offer prices for each
grade are specified in columns captioned “Mini” (minimum), “Maxi” (maximum), and “Modal.”
See id. However, the Azadpur APMC data include no data whatsoever on actual garlic sales – not
even data on aggregate sales, and certainly no data on specific, individual sales. See id. Thus, from
the Azadpur APMC data on the record, it is impossible to determine the volume of garlic sold on
any particular day – or even the total volume of garlic sold during the two-and-one-half month
period reflected in the data that Commerce placed on the record here.

The Remand Determination asserts (in essence) that it is reasonable to assume that all garlic
delivered to the Azadpur APMC market was sold. See Remand Determination at 58; Def. Response
Court No. 06-00189 Page 32

the assumption that all garlic delivered to the market is eventually sold (at some price) does not

permit Commerce to derive any information whatsoever as to the volume of sales of “A”- and

“S.A.”-grade garlic, because (as discussed immediately above) the Azadpur APMC data provide no

information on the volume of “A”- and “S.A.”-grade garlic delivered to the market. See Azadpur

APMC data; Pls. Comments at 5, 9-10; Pls. Reply Comments at 6. Further, even the assumption that

all garlic delivered to the market is eventually sold (at some price) does not permit Commerce to

derive from the Azadpur APMC data any information about the actual dates on which any or all

sales were made, or the prices paid for those sales. Numerous statements in the Remand

Determination indicate that Commerce fails to grasp even these most basic facts.

For example, the Remand Determination states that the Azadpur APMC data “contain[] a

list of all fruit and vegetable sales on any particular day at the [Azadpur] APMC [market].” See

Remand Determination at 9 (emphasis added). As discussed above, however, the Azadpur APMC

data in fact include no information whatsoever on any specific sales – much less “a list of all . . .

[individual] vegetable sales on any particular day,” as the Remand Determination states. See

Azadpur APMC data. The statement in the Remand Determination is thus flatly incorrect – as is the

at 12-13. However, even that assumption is of no real use to Commerce. First, all garlic delivered
to the market on a particular date was not necessarily sold on that date. As the Azadpur APMC data
indicate, garlic was offered for sale at the Azadpur market even on days when no garlic was
delivered. See Azadpur APMC data (for example, data for May 8, 2006, listing offer prices for
garlic, but indicating that no garlic arrived at the market on that date); see also Pls. Comments at 9-
10 (noting that “some [Azadpur APMC] bulletins do not show any arrival amount for garlic but still
show [offer price] data”). There is thus no way to correlate garlic volume with daily sale prices,
since there is no way to ascertain the day on which any particular volume of garlic was sold.
Moreover, even more fundamentally, as discussed above, the volume of garlic delivered to the
market is not broken down by grade. There is thus no way to correlate garlic volume with garlic
grade (much less the price for that grade on any assumed day of sale).
Court No. 06-00189 Page 33

Government’s claim that the Azadpur APMC data “included ‘numerous specific garlic sales.’” See

Def. Response at 7-8 (citation omitted).

The Remand Determination further states that the Azadpur APMC data “note[] the weight

of each sale, the region from which the produce originates, and the grade or size of the product.”

See Remand Determination at 9 (emphases added). But, again, the Azadpur APMC data provide

absolutely no sales-specific information, much less information on “each [individual] sale.” The

Azadpur APMC data emphatically do not provide information on “the weight,” the “region” of

origin, and the “grade or size” of “each sale.” See Azadpur APMC data; Pls. Comments at 9

(explaining that Azadpur APMC data “offer no sales-specific details regarding grades of garlic”).25

25
The Azadpur APMC data include two types of “weight” information for fresh garlic. As
discussed above, the data identify, for each market day, the aggregate volume of all grades of garlic
delivered to the market, under a column captioned “Arrival Variety in Tons.” In addition, the data
identify the unit of measure by which garlic is offered for sale at the market, under the column
captioned “Weight in Kg.” As the Azadpur APMC data indicate, garlic is sold in “40 kg. katta[s],”
or jute bags. See Azadpur APMC data (under column, “Weight in Kg,” for garlic); Market Research
Report at 20 (noting that garlic is sold in jute bags). Significantly, neither of these two types of
“weight” data are sales data, much less data on specific, individual sales as the Remand
Determination states. Thus, contrary to the Remand Determination’s claim, the Azadpur APMC
data emphatically do not “note[] the weight of each sale.” See Remand Determination at 9.

Similarly, the Azadpur APMC data indicate where garlic that was delivered to the market
arrived from, under a column captioned “Name of the Comm. & State.” See Azadpur APMC data
(under column, “Name of the Comm. & State,” for garlic). Yet again, however, that information is
not correlated in any way to sales, much less specific, individual sales. Thus, contrary to the
Remand Determination’s claim, the Azadpur APMC data clearly do not specify for “each sale,” “the
region from which the produce originates.” See Remand Determination at 9.

As indicated above, the Azadpur APMC data also note the various grades of garlic offered
for sale on each market day, under a column captioned “Grade/Size.” See Azadpur APMC data
(under column captioned “Grade/Size,” for garlic). But, once again, that information is not
correlated in any way with any information on sales, much less data on specific, individual sales.
Accordingly, contrary to the Remand Determination’s claim, the Azadpur APMC data plainly do
Court No. 06-00189 Page 34

The statement in the Remand Determination is thus demonstrably untrue. Indeed, it is difficult to

conceive that such statements could be made by anyone who gave the Azadpur APMC data even

the most cursory review.

In addition, the Remand Determination states that the Azadpur APMC data “provide[] a

minimum, maximum, and a modal price for each commodity sold.” See Remand Determination at

9. As discussed above, however, the Azadpur APMC data provide no specific data at all concerning

actual individual sales. See Azadpur APMC data. The Azadpur APMC data themselves do not

establish (except by inference) that any garlic of any grade was actually sold at the Azadpur APMC

market, much less the price that was actually paid for any particular sale. Certainly the data say

nothing about any actual sales (much less actual prices paid) for garlic graded “A” and “S.A.” – the

only grades of garlic that are at issue here.

Elsewhere, the Remand Determination asserts that the Azadpur APMC data are “largely

comprised of numerous specific garlic sales from several of the northern long-day growing regions,

including Himachal Pradesh, Punjab, and Haryana”26 (i.e., several of the regions where – according

to the Market Research Report – larger-bulbed garlic is grown). See Remand Determination at 12

(emphases added); Def. Response at 7-8; Market Research Report at 16 (stating that India’s “‘Long

Day’ Zone” includes “Himachal Pradesh, Jammu and Kashmir, Punjab, Haryana, Uttaranchal, [and]

not indicate “the grade or size of the product” for “each sale.” See Remand Determination at 9.
26
The Remand Determination similarly asserts that “the Azadpur APMC dataset . . . us[ed]
to generate a surrogate value [in the Remand Determination] . . . is overwhelmingly made up of
garlic grown in [the “long-day”] regions.” See Remand Determination at 54-55 (emphasis added).
However, just as there is no basis on the record for concluding that the Azadpur APMC data are
“largely comprised” of “garlic sales from several of the northern long-day growing regions” (see
id. at 12), so too there is no basis on the record for reaching this related conclusion.
Court No. 06-00189 Page 35

Northern Parts of Uttar Pradesh”).27 Yet again, the Remand Determination refers to “sales,” even

though, as discussed above, the Azadpur APMC data provide no sales-specific information

whatsoever – much less information on any “specific [individual] garlic sales,” as the Remand

Determination asserts. See Remand Determination at 12 (emphasis added); Pls. Comments at 9

(noting that Azadpur APMC data “offer no sales-specific details regarding . . . the region in which

the garlic was grown”); see also id. at 5.

Further, even the data on the aggregate total volume of garlic delivered to the Azadpur

market are not broken down by the state from which that garlic arrived. See Azadpur APMC data;

Pls. Comments at 5 (explaining that the Azadpur APMC data do not indicate “the amount [of garlic]

received [at the market] from each particular state”); Pls. Reply Comments at 6 (same).28 It thus

goes without saying that there is also no basis whatsoever for the Remand Determination’s claim

that the Azadpur APMC data are “largely comprised” of sales from the states of Himachal Pradesh,

Punjab, and Haryana. See Remand Determination at 12 (emphasis added).

Moreover, to the extent that the Remand Determination seeks to suggest that any sales from

the specified states (i.e., Himachal Pradesh, Punjab, and Haryana) would be, by definition, sales of

larger-bulbed garlic, that notion is dispelled by the Azadpur APMC data themselves. One of the

27
The Market Research Report makes it clear that the so-called “long-day” zone includes
Himachal Pradesh, Jammu and Kashmir, Punjab, Haryana, Uttaranchal, and Uttar Pradesh. See
Market Research Report at 10-11, 16; but see id. at 17-18 (discussing “long-day” zone, but omitting
reference to Uttar Pradesh). The Remand Determination states that the “long-day” zone “primarily”
includes Uttar Pradesh (as well as Himachal Pradesh, Punjab, Uttaranchal, and Haryan), but omits
any reference to Jammu and Kashmir. See Remand Determination at 54.
28
In addition, as discussed below, the record does not establish that the state from which the
garlic was delivered is in fact the state where the garlic was grown. See section III.A.2.b, infra.
Court No. 06-00189 Page 36

relatively few things that can be said with certainty based on the Azadpur APMC data is that they

clearly list prices for garlic from Himachal Pradesh, Punjab, and Haryana not only for higher, larger-

bulbed grades (i.e., grades “A” and “S.A.”), but also for garlic of lower grades as well. See Azadpur

APMC data (garlic data for, inter alia, July 3, 2006, listing offer prices for grades “B” and “C,” as

well as “A” and “S.A.,” from Himachal Pradesh (“HP”), Punjab (“PUN”), and Haryana (“HAR”),

as well as other states).

In addition, the Remand Determination states that the Azadpur APMC data “for super-A and

A grades of garlic contains 198 points of data, representing over one thousand tons of garlic sold

over a period of several months.” See Remand Determination at 13; see also Def. Response at 12

(same); Remand Determination at 71, 74 (asserting that Azadpur APMC data “include hundreds of

data points”); Def. Response at 26 (same). This statement too is riddled with inaccuracies.29

29
Elsewhere, the Remand Determination asserts that the Azadpur APMC data “represent[]
an extremely high volume of sales.” See Remand Determination at 71, 74; see also Def. Response
at 26 (same). Quite apart from the fact that the Azadpur APMC data in fact include no “sales”-
specific data (as noted repeatedly herein), it is unclear whether the quoted statement is intended to
refer to “sales” of garlic in general, or to “sales” of garlic graded “A” and “S.A.” If the reference
is to garlic in general, the statement is not relevant to the issue of the “representativeness” of the
Azadpur APMC data. On the other hand, if the reference is to garlic graded “A” and “S.A.,” then
the statement lacks support in the administrative record, because the Azadpur APMC data do not
break down by grade the volume of garlic delivered to the Azadpur market. Further, even if sales
figures for “A”- and “S.A.”-grade garlic were available on the record, it would be difficult to credit
the Remand Determination’s claim that the volume of such sales at the Azadpur market is
“extremely high” absent data on the total sales of such garlic nationwide, or at least at other markets,
to put the Azadpur figures in proper context. See generally Jining Yongjia Trade Co., 34 CIT at
____, 2010 WL 5121964 * 13 (noting representation, in litigation challenging twelfth “new shipper”
reviews for period November 1, 2006 to April 30, 2007, that garlic sales at the Azadpur APMC
market “accounted for 5.583 percent of all garlic transactions across India in 2006”).

The Remand Determination makes the point that “the overall value [or volume] of the garlic
sold” at the Azadpur APMC market is “irrelevant” – because, the Remand Determination
Court No. 06-00189 Page 37

As a threshold matter, the claimed “198 points of data” is virtually meaningless. Although

the Remand Determination offers no explanation of the provenance of the “198” figure, close review

of the Azadpur APMC data reveals that it is nothing more than the total number of offer prices for

“A”- and “S.A.”-grade garlic listed (two, three, or four per day) for the two-and-one-half month

period. In other words, the Azadpur APMC Bulletin page for May 1, 2006 lists prices for “A”- and

“S.A.”-grade garlic for “UP/HAR” (i.e., Uttar Pradesh and Haryana), which Commerce counts as

two “points of data”; and, in addition, the same page of the APMC Bulletin also lists prices for “A”-

and “S.A.”-grade garlic for “MP/RAJ/KOTA (NC)” (i.e., Madhya Pradesh, Rajasthan, and

(apparently) the city of Kota), which Commerce counts as another two “points of data,” for a total

of four “points of data” for May 1, 2006. Commerce continued this same counting process,

reviewing the Azadpur APMC data for each market day in the two-and-one-half month period, and

came up with the total of “198 points of data.”30 As discussed above, however, these “points of

data” correlate only to offer prices. As such, the number of “points of data” – whether 198 or even

199,888 – says nothing whatsoever about how many (if any) sales of “A”- and “S.A.”-grade garlic

were actually made during the two-and-one-half month period, or the prices actually paid in any

such sales. Any implication that the figure reflects 198 sales of “A”- and “S.A.”-grade garlic is

underscores, “what matters is the data with respect to the ‘A’ and ‘Super-A’ garlic grades.” See
Remand Determination at 58; see also Def. Response at 13 (discussing same point). The Remand
Determination’s assessment is spot-on; but it is precisely that information which is missing from the
Azadpur APMC data on the record.
30
Careful review of the Azadpur APMC data suggests that the Remand Determination may
have missed several “points of data” (as the Remand Determination refers to them), and that the
actual count should be not 198, but instead 205. See Azadpur APMC data.
Court No. 06-00189 Page 38

absurd.31

The Remand Determination’s assertion that the “198 points of data” for “super-A and A

grades of garlic” represent “over one thousand tons of garlic sold over a period of several months”

is even more inaccurate. See Remand Determination at 13. First, the Remand Determination again

suggests that the Azadpur APMC data include actual sales figures, which they do not. Moreover,

the reference to “over one thousand tons” of “super-A and A grades of garlic” is a reference to the

page of the Azadpur APMC data that is captioned “Prices of Garlic, S.A. Grade, May 1st-July 14th

2006,” which lists at the bottom of the column “Tons” the total “1,032.” See Remand Determination

at 13; Azadpur APMC data. As the caption on the page itself indicates, the price data reflected there

are limited solely to “S.A.”-grade garlic – and to “S.A.”-grade garlic from the state of Himachal

Pradesh, at that. See Azadpur APMC data (page captioned “Prices of Garlic, S.A. Grade, May 1st-

July 14th 2006,” listing “HP” (Himachal Pradesh) under column captioned “State”).

Thus, contrary to Commerce’s representations in the Remand Determination, the page of

Azadpur APMC data at issue includes no data whatsoever on grade “A” garlic; and, even as to grade

31
The number in the Remand Determination would be no more meaningless if Commerce had
tripled the number of “points of data” by counting each grade “A” and “S.A.” listing three times (for
a total of 615 “points of data”) – to reflect the “Mini” (minimum) offer price, the “Maxi”
(maximum) offer price, and the “Modal” offer price. See Azadpur APMC data. Whether the
number of “points of data” is 198, 205, or 615, the figure is largely artificial and meaningless.

The actual number of garlic sales made at the Azadpur APMC market during the two-and-
one-half month period could be either higher or lower than 198, 205, or 615; there is simply no way
to ascertain the actual number of sales from the Azadpur APMC data on the record. The critical
point is that the Azadpur APMC data include no specific sales information of any sort – no specific
sales data whatsoever – and the “points of data” that Commerce is counting reflect nothing more
than offer prices, not specific, individual sales.
Court No. 06-00189 Page 39

“S.A.” garlic, the page does not include all “S.A.”-grade garlic, but, rather, only that “S.A.”-grade

garlic which came from one particular state. Finally, and most importantly, the figure that the

Remand Determination touts – “over one thousand tons” (or 1,032 tons, to be exact) – has no

relationship to the grade “S.A.” garlic from Himachal Pradesh that is the subject of the page, or to

any other specific grade of garlic. Instead, each of the figures in the “Tons” column represents the

total tonnage of garlic of all grades that was delivered to the Azadpur APMC market on the 30 days

listed on the page, which totals 1,032 tons.

In sum, while the Remand Determination claims that the referenced Azadpur APMC data

document the sales of “over one thousand tons” of “super-A and A grades of garlic” over a period

of two-and-one-half months (see Remand Determination at 13), the facts are that: (a) the Azadpur

APMC volume figures are for deliveries of garlic to the Azadpur APMC market, not for sales; (b)

the specific Azadpur APMC data to which the Remand Determination refers do not cover grade “A”

garlic, but, rather, are limited to grade “S.A.” – and, in fact, are confined to grade “S.A.” garlic from

the state of Himachal Pradesh; and (c) the “over one thousand tons” figure that Commerce trumpets

is actually for all grades of garlic (not grades “S.A.” and/or “A”) delivered to the Azadpur APMC

market and, moreover, reflects only those deliveries made on those days when grade “S.A.” garlic

from Himachal Pradesh was offered for sale. The Remand Determination thus evidences shockingly

little comprehension of the Azadpur APMC data.

b. Geographic Representativeness

As discussed above, the existing administrative record cannot support the Remand

Determination’s conclusion that the Azadpur APMC data are temporally representative of the
Court No. 06-00189 Page 40

Chinese Producers’ raw garlic bulb. As to geographic representativeness, the Remand

Determination emphasizes that it is Commerce’s practice to use “country-wide data” rather than

“regional data,” whenever possible. See Remand Determination at 12; see also Def. Response at

6 (stating that Commerce seeks data that are “representative of broad market average prices in

India”). But, much like its claims as to the temporal representativeness of the Azadpur APMC data,

so too the Remand Determination’s claims that the Azadpur APMC data are geographically

representative lack adequate support in the existing record. See generally Remand Determination

at 12-13, 54-55, 58 (discussing representativeness of Azadpur APMC data); see also Def.-Ints.

Reply Comments at 2 (asserting that Azadpur APMC data reflect “a broad market average in

India”).

A number of the Remand Determination’s statements are simply not relevant to the issue of

geographic representativeness. The Remand Determination states, for example, that the Azadpur

APMC market has been designated a “Market of National Importance.” See Remand Determination

at 13. Without more, however, that fact is meaningless. There is no indication that designation as

a “Market of National Importance” is anything other than some sort of honorary recognition of the

market’s historical significance. Certainly there is no indication that the designation is evidence of

any fact that bears on the “representativeness” of the data on “A”- and “S.A.”-grade garlic at issue

here.

Similarly, the Remand Determination’s representation that, as of 2003, the Azadpur APMC

market was “not only the largest APMC [market] in India, but . . . also the largest in Asia” says

nothing whatsoever that is specific to garlic, much less garlic of the particular grades at issue here.
Court No. 06-00189 Page 41

See Remand Determination at 13 (citing Market Research Report at 21). The same is true of the

Government’s assertion that the Azadpur APMC market is “the largest fruit and vegetable market

in Asia.” See Def. Response at 12. The statement says nothing about garlic, not to mention garlic

that is graded “A” or “S.A.”

The Remand Determination’s finding that the Azadpur APMC market is “India’s ‘National

Distribution Centre’ for several agricultural products, including garlic” at least refers to garlic in

general; but, again, the statement is not specific to grades “A” and “S.A.,” and thus is entitled to

little, if any, weight in evaluating the representativeness of the Azadpur APMC data. See Remand

Determination at 13; see also id. at 71, 74 (asserting that Azadpur market is “major distribution

center” of unspecified types of produce).32

The Remand Determination further asserts that the Azadpur APMC market “covers broad

territory in India,” and that “agricultural products from all over India are sold” at the Azadpur

market. See Remand Determination at 13. However, it is unclear what is meant by the claim that

the market “covers broad territory,” and – in any event – the statement is in no way specific to garlic

as a whole, not to mention “A”- or “S.A.”-grade garlic. Similarly, even assuming (without

accepting) that the second quoted statement is true as phrased, “agricultural products” in general are

32
According to the Remand Determination, Commerce took both the statement that the
Azadpur APMC market is a “National Distribution Centre” and the statement that it is a “Market
of National Importance” from the Azadpur APMC’s website. See Remand Determination at 13
(internal quotation marks omitted). But the Remand Determination does not indicate when
Commerce consulted the website. It seems unlikely that Commerce would have done so before the
Azadpur APMC data were first placed on the record of the 2004-2005 review (in August or
September 2006); and it may have been much later. It is thus unclear whether the two statements
were true at the time of the period of review (i.e., November 1, 2003 through October 31, 2004).
Court No. 06-00189 Page 42

not at issue in this action. Even if true, the statement says nothing about the sales of “A”- and

“S.A.”-grade garlic at the Azadpur APMC market.

Any implication that grade “A” and “S.A.” garlic “from all over India [is] sold at the APMC

[market]” is contradicted by another statement in the Remand Determination, which indicates that

“the total data set for super-A and A grades of garlic” used on remand “comes from a broad array

of seven Indian states.” See Remand Determination at 13. But, despite the reference to “seven

Indian states,” the sentence actually lists only five states – specifically, “Uttar Pradesh, Rajasthan,

Madhya Pradesh, Haryana, and Himachal Pradesh.” See id. In any event, an independent review

indicates that the Azadpur APMC data list six states as origins of grades “A” and/or “S.A.” garlic

– including the five states listed immediately above, as well as Punjab, plus “KOTA” (which appears

to refer to a city). Given that India comprises no fewer than 28 states (as well as a number of official

“territories,” including the National Capital Territory of Delhi, where the Azadpur APMC market

is located) and given that several major garlic-producing states are not reflected in the Azadpur

APMC data, it is clear that “A”- and “S.A.”-grade garlic “from all over India” is not sold at the

Azadpur APMC market. See Market Research Report at 7, 9; Azadpur APMC data.33

33
This same analysis disposes of the Government’s claim that “garlic from a broad number
of Indian states is sold at the Azadpur market.” See Def. Response at 12. As discussed above, the
Azadpur APMC data indicate that garlic is delivered to the Azadpur market from six states, as well
as “KOTA.” See Azadpur APMC data. And, even more to the point, garlic in general is not
relevant; what matters is garlic that is graded “A” and “S.A.”

The record does not specifically identify the number of Indian states that grow grade “A”
and/or “S.A.” garlic. However, the Market Research Report states that garlic production is
concentrated in six states which are reflected in the Azadpur APMC data (i.e., Madhya Pradesh,
Rajasthan, Punjab, Haryana, Himachal Pradesh, and Uttar Pradesh), but also in four states that are
not reflected in those data (i.e., Gujarat, Maharashtra, Orissa, and Uttaranchal). See Market
Court No. 06-00189 Page 43

Further, the Remand Determination seems to assume that the origin listed in the Azadpur

APMC data is the place where the produce (including garlic) was grown. As the Chinese Producers

note, however, it does not appear that the location listed in the Azadpur APMC data is necessarily

the place where the produce was grown. See Pls. Comments at 9; Azadpur APMC data (column

captioned “Name of the Comm. & State”). Certainly there is no record evidence to affirmatively

establish that the origin listed in the Azadpur APMC data is the place where the produce was

actually grown. And, in fact, there is evidence that appears to indicate to the contrary. For example,

the Remand Determination notes that the Market Research Report states that garlic imported from

China is sold at the Azadpur APMC market. See Remand Determination at 55; Market Research

Report at 21-22, 29. But nowhere do the Azadpur APMC data show China as the origin of any of

the garlic listed there. See Azadpur APMC data (column captioned “Name of the Comm. & State”).

More to the point, however, the proper focus of Commerce’s geographic

“representativeness” criterion is not on matters such as where the garlic was grown, where the garlic

was located before it arrived at the Azadpur APMC market, or where the Azadpur APMC market

Research Report at 7; Azadpur APMC data. The Market Research Report indicates that the four
states of Madhya Pradesh, Gujarat, Maharashtra, and Rajasthan accounted for 68% of national garlic
production. See Market Research Report at 7; Azadpur APMC data. But two of those states –
Gujarat and Maharashtra – are not reflected in the Azadpur APMC data. See Azadpur APMC data.
The Market Research Report further states that the “North Indian garlic belt” accounted for roughly
15% of the country’s garlic production and is “the only garlic producing belt in India where garlic
is grown under ‘long-day’ conditions.” See Market Research Report at 7. The states in the “long-
day” zone include Punjab, Haryana, Himachal Pradesh, and Uttar Pradesh (which are reflected in
the Azadpur APMC data); but the zone also includes Jammu and Kashmir and Uttaranchal – states
which are not reflected in the data. See id. at 10-11, 16; Azadpur APMC data. Finally, the Market
Research Report also identifies “[k]ey garlic producing districts” in the states of Bihar, Tamil Nadu,
and Karnataka, as well as a “pocket” in the state of Kerala, none of which are reflected in the
Azadpur APMC data. See Market Research Report at 6-9; Azadpur APMC data.
Court No. 06-00189 Page 44

is located within India (or in relation to anything else). The issue is not the geographic

“representativeness” of the Azadpur APMC market itself or the geographic “representativeness” of

the garlic or other produce marketed there. Rather, the proper focus of geographic

“representativeness” here is whether the prices reflected in the Azadpur APMC data are

“representative” of prices across India (and are not, for example, aberrational or distorted local or

regional prices).34

As the Chinese Producers point out, “Commerce itself acknowledges that Azadpur is just one

of numerous APMC markets throughout India.” See Pls. Comments at 10; see also id. at 2, 23

(emphasizing that Azadpur APMC data reflect prices for only a single market); Remand

Determination at 53 (noting Chinese Producers’ argument that data reflect prices for only a single

market); Market Research Report at 1-2 (noting that Agricultural Produce Marketing Committees

(“APMCs”) have “wholesale markets spread across India,” including markets in Maharashtra,

Haryana, Chandigarh, and Himachal Pradesh); id. at 3 (referring to “wholesale garlic markets across

the country”); id. at 21 (referring to APMC “wholesale markets across the country”); Jining Yongjia

Trade Co. v. United States, 34 CIT ____, ____, 2010 WL 5121964 * 13 (2010) (noting

representation, in litigation challenging twelfth “new shipper” reviews, that there are “7,000 APMCs

throughout India”).35 There is, however, no record evidence to indicate how the prices for “A”- and

34
Of course, factors such as where the Azadpur APMC market is located and where the garlic
sold there is grown may well affect prices at the market. But the actual issue that Commerce must
decide is whether the Azadpur APMC data are “representative” of prices across India. The Remand
Determination never directly addresses that issue.
35
See also Taian Ziyang Food Company Ltd. and Taian Fook Huat Tong Kee Foodstuffs Co.,
Ltd. Surrogate Value Submission (Admin. Record Pub. Doc. 83), Exh. 1 (Agmarknet data, including
India-wide garlic values for entire period of review, and listing locations of numerous markets
Court No. 06-00189 Page 45

“S.A.”-grade garlic listed in the Azadpur APMC data compare to prices for such garlic at the

numerous other APMC markets “spread across India.” See Market Research Report at 1. Nor is

there any other record evidence to substantiate the geographic representativeness of the Azadpur

APMC data on which Commerce relies in the Remand Determination.

c. Conclusion

Despite Commerce’s professed preference for a “period-wide price average” that reflects

“country-wide” data, the Azadpur APMC data that the agency selected to value raw garlic bulb in

the Remand Determination “encompass a limited time span” and are from “a single APMC market.”

See Remand Determination at 6 (quoting Policy Bulletin 04.1); id. at 12, 71, 74; Pls. Comments at

2. The Remand Determination fails to explain Commerce’s reason for using a mere two-and-one-

half months of data, rather than deflating and using data for an entire year.36 Nor does the Remand

Determination explain the basis for the agency’s apparent confidence that such time-limited data are

not distorted by seasonal or other “temporary market fluctuations.” See generally Remand

Determination at 44, 48. Similarly, the Remand Determination fails to demonstrate that the Azadpur

APMC data are representative of prices throughout India, and do not reflect local or regional

aberrations.

The Remand Determination is full of broad, sweeping, conclusory assertions concerning both

the temporal and geographic “representativeness” of the Azadpur APMC data. As discussed above,

throughout India from which garlic values were obtained).
36
Indeed, as discussed above, the Remand Determination fails to explain why Commerce did
not use a full year of contemporaneous data. See section III.A.2.a, supra.
Court No. 06-00189 Page 46

however, the data simply do not back them up. Certainly the Remand Determination does not

support Commerce’s hyperbolic claim that the Azadpur APMC data “represent[] a broad market

average of large-bulb garlic and [are] inclusive of all possible data.” See Remand Determination

at 12 (emphasis added).

The outlined concerns about the “representativeness” of the Azadpur APMC data alone

would warrant another remand of the surrogate value for raw garlic bulb. There are, however,

additional problems with the Azadpur APMC data, as discussed elsewhere throughout this section.

See generally section III.A, passim.

3. “Product Specificity” of Azadpur APMC Data

Commerce’s “well-established criteria for determining the appropriateness of surrogate

values under consideration,” set forth in Policy Bulletin 04.1, address not only the

“contemporaneity” and “representativeness” of potential data sources (both of which are discussed

above), but also the “product specificity” of those sources – a critical consideration. See generally

section III.D.6, infra (explaining that other criteria (e.g., contemporaneity, representativeness, and

public availability) are irrelevant if data are not sufficiently product-specific). In particular, Policy

Bulletin 04.1 explains that “it is [Commerce’s] stated practice to use . . . prices specific to the input

in question.” See Policy Bulletin 04.1 (emphasis added) (quoted in Remand Determination at 6).

In the case at bar, the Remand Determination emphasizes that, “[i]n the selection of surrogate

values for garlic bulbs, [Commerce is] . . . seeking to select as a surrogate value . . . [a price] that

is highly specific to the product in question” – specifically, garlic bulb with a diameter of between

50 mm and 65 mm. See Remand Determination at 6, 11; see also Issues and Decision Memorandum
Court No. 06-00189 Page 47

at 42-43 (noting that Chinese garlic exported to U.S. has “bulb diameter above 40 millimeters”);

Remand Determination at 8-9 (same); Market Research Report at 29 (noting that bulb size of

Chinese garlic exported to India generally is “ , 40 mm (typically . . . ranges between 50-65 mm)”).37

37
Commerce and the Government repeatedly underscore both the importance of “product
specificity” and the fact that, in this review, that translates to the diameter of the garlic bulb.

As to the importance of product specificity, see, e.g., Remand Determination at 7 (noting that
Commerce rejected Indian import statistics as surrogate value because “they were deemed
insufficiently specific”); id. at 15 (same); id. at 8 (stating that “the quality and detail of any data used
to obtain a surrogate value for garlic bulbs is of importance”); id. at 9 (stating that “any data that fail
to identify the size and quality of the garlic [described in the data] are ultimately insufficient”); id.
(stating that “[a]ny data used to represent Chinese garlic bulb prices must fit the particular
characteristics of Chinese garlic, which is a large, high yield, high quality variety”); id. at 10 (stating
that “in choosing the most appropriate surrogate value, [Commerce] considers several important
attributes,” including the “specificity” of the “source information”); id. at 12 (same); Def. Response
at 9 (noting that Indian import data were rejected “as being insufficiently product-specific to the
bulb size”); id. at 13 (stating that “what mattered for Commerce’s determination was that the
[Azadpur APMC data] were product-specific”).

As to the significance of bulb diameter, see, e.g., Remand Determination at 8 (stating that
“the size of a garlic bulb is a factor in the ultimate price paid” and “a strong determinant of the grade
and price of garlic”); id. at 9 (stating that “the size of a garlic bulb often drives garlic prices in the
marketplace”); id. (stating that “[a]ny data used to represent Chinese garlic bulb prices must fit the
particular characteristics of Chinese garlic, which is a large, high yield, high quality variety”); id.
at 10 (stating that Commerce “has concluded in several recent reviews that the size of . . . garlic
bulbs [is] given significant value in the marketplace”); id. at 11 (emphasizing importance of basing
surrogate value on Indian sales of “garlic bulbs of similar diameter to that of [the Chinese
Producers’] merchandise”); id. at 14 (stating that “bulb size significantly affects all [factors of
production] and drives the selling price,” such that “bulb size is a key element in valuing the raw
garlic bulb input”); Def. Response at 7 (asserting that “bulb size is the most important factor
concerning the ultimate market price”); id. at 9 (noting that Indian import data were rejected “as
being insufficiently product-specific to the bulb size”); id. at 11 (stating that “[a]s Commerce
explained, . . . the most important factor concerning product-specificity is garlic bulb size”); id. at
13 (stating that “garlic bulb size affects all factors of production and controls the ultimate sale price
of the finished product”).

The Government asserts that, in selecting the Azadpur APMC data from among the various
sets of data on the record, Congress gave product specificity the greatest weight from among the
Court No. 06-00189 Page 48

The Remand Determination similarly emphasizes that Commerce “is seeking a surrogate value that

is . . . as similar as possible to the intermediate input” that the agency is valuing – specifically, raw

garlic bulb as it exists at the “farm gate” (i.e., the raw garlic bulb as it is harvested), with no further

processing or handling, and including no additional charges. See Remand Determination at 56

(emphasis added); Issues and Decision Memorandum at 14 (noting need to value “the garlic [bulb]

that is pulled from the ground . . . [and] not the final product”); id. at 13 (noting need to value “the

raw garlic bulb that is harvested from the ground”); see also, e.g., Remand Determination at 57

(stating that Azadpur APMC data for “A”- and “S.A.”-grade garlic “best approximate the

intermediate input in India”); Issues and Decision Memorandum at 42 (stating that “[Commerce’s]

objective here is to find the best available surrogate value to value garlic bulb (i.e., the intermediate

product)”).38

criteria set forth in Policy Bulletin 04.1. See, e.g., Def. Response at 7 (asserting that “[b]ecause .
. . bulb size is the most important factor concerning the ultimate market price . . . , Commerce
reasonably gave more weight to product-specificity when selecting a surrogate value for garlic
bulb”); id. at 8 (stating that, although Azadpur APMC data are not contemporaneous, “Commerce
concluded that these data were the best available information . . . because the benefit in product-
specificity outweighed the flaw in contemporaneity”); id. at 13 (arguing that “Commerce reasonably
determined that the product-specificity of the [Azadpur APMC data] made [those data] better
information” than other sources of data on the record); id. at 13-14 (arguing that “Commerce
reasonably gave greater weight to product-specificity over contemporaneity and determined that the
highly product-specific [Azadpur APMC data] were the best available information”).

As outlined herein, however, the claims of Commerce and the Government concerning the
product specificity of the Azadpur APMC data are not borne out by the existing administrative
record.
38
In the Remand Determination, “farmgate” prices are described as prices for produce that
goes “straight from the farm to the customer, without intermediary distributors.” See Remand
Determination at 52.
Court No. 06-00189 Page 49

Commerce states that the “A”- and “S.A.”-grade garlic reflected in the Azadpur APMC data

used in the Remand Determination is “highly similar to [the Chinese Producers’] intermediate

input.” See Remand Determination at 56; see also id. at 10-11, 14, 15, 54-55, 56, 57, 59 (same);

Def.-Ints. Reply Comments at 2 (asserting that Azadpur APMC data reflect “garlic bulbs of a size

that correspond to the large-sized garlic bulbs grown by the [Chinese Producers]” and “are specific

to the product being valued”). But the Chinese Producers contest Commerce’s claims of product

specificity.

Specifically, the Chinese Producers contend that there is no unbiased evidence to establish

the bulb size of the “A”- and “S.A.”-grade garlic reflected in the Azadpur APMC data. See

generally Pls. Comments at 3-5; Pls. Reply Comments at 2-3. In addition, the Chinese Producers

argue that there are unexplained disparities between the Azadpur APMC data and other prices for

large-bulb garlic that are on the record; and, according to the Chinese Producers, those disparities

illustrate that the Azadpur APMC data reflect costs that render the Azadpur APMC data

insufficiently specific to the Chinese garlic at issue here. See generally Pls. Comments at 6-8; Pls.

Reply Comments at 4-5.

In particular, the Chinese Producers suggest that the relatively high prices reflected in the

Azadpur APMC data may be attributable to the cost of special seed used to grow large-bulb garlic

in India. See generally Pls. Comments at 13-16; Pls. Reply Comments at 9-10. The Chinese

Producers also suggest that the prices reflected in the Azadpur APMC data may be inflated due to

transportation costs and commission payments and other similar expenses associated with the sales

of garlic at the Azadpur APMC market. See generally Pls. Comments at 10-12; Pls. Reply
Court No. 06-00189 Page 50

Comments at 6-8. According to the Chinese Producers, the inclusion of such costs and expenses

means that the Azadpur APMC data do not constitute “farm gate” prices and thus are not product-

specific to the “intermediate product” that Commerce purportedly valued here. See generally Pls.

Comments at 10-12; Pls. Reply Comments at 6-8.39

a. Descriptions of “A”- and “S.A.”-Grade Garlic

Two key facts underpinning the Remand Determination’s findings that the Azadpur APMC

data are product-specific to the Chinese Producers’ garlic are Commerce’s determinations that the

Azadpur APMC data’s references to grade “A” garlic and grade “S.A.” garlic are to garlic with bulb

diameters of 40 to 55 mm, and 55 mm or more, respectively. See Pls. Comments at 3; Remand

Determination at 11 (concluding that “the two larger Indian varieties – super-A [“S.A.”], which is

defined . . . as having bulbs greater than 55 mm in diameter . . . , and A, which is defined as having

bulbs between 40 and 55 mm in diameter – [are] most similar to the garlic Chinese Respondents

produce”); see also Pls. Comments at 4-5; Pls. Reply Comments at 2-3.

The Chinese Producers correctly note that the Azadpur APMC data themselves do not

describe or define the various grades of garlic. See Pls. Comments at 3; Azadpur APMC data.

According to the Chinese Producers, Commerce’s two “critical findings” on the size of grades “A”

and “S.A.” garlic are “based merely on the unsupported claims of [the Domestic Producers] and their

consultant rather than any objective evidence.” See Pls. Comments at 3-4; Pls. Reply Comments

at 3; see generally Pls. Comments at 3-5; Pls. Reply Comments at 2-3; see also Def. Response at 10-

39
Some of the issues addressed in the analysis of the “representativeness” of the Azadpur
APMC data go to the product specificity of those data as well. See generally section III.A.2, supra.
Court No. 06-00189 Page 51

11; Remand Determination at 51, 53-54 (summarizing, and responding to, Chinese Producers’

arguments; noting that Chinese Producers “claim that the grades of garlic . . . are not described by

any unbiased sources on the record”).

In particular, the Chinese Producers note that Commerce’s finding on the size of grade “A”

garlic is based on a statement in the Market Research Report, which the Chinese Producers

characterize as “a statement by [the Domestic Producers’] paid consultant in a market research study

generated specifically for this case.” See Pls. Reply Comments at 2-3;40 see also Market Research

Report at 21 (stating that, in June 2003, garlic with bulb diameter of greater than 40 mm was

classified as grade “A”). The Chinese Producers dismiss the Market Research Report as a “private

market study commissioned by [the Domestic Producers], which is neither an official nor an

objective source.” See Pls. Comments at 3; see also Remand Determination at 51. The Chinese

Producers further note that the Market Research Report makes no mention of garlic graded “S.A.,”41

and claim that the basis for Commerce’s finding on the size of “S.A.”-grade garlic “amounts to . .

. a statement by [the Domestic Producers] themselves in a letter to Commerce.” See Pls. Reply

40
Contrary to the Chinese Producers’ claim, the Market Research Report was not “generated
specifically for this case.” See Pls. Reply Comments at 2-3. As the Remand Determination notes,
the Domestic Producers first submitted the Market Research Report on the record of the 2001-2002
(eighth) administrative review. See Remand Determination; see also Domestic Producers’ Surrogate
Value Submission (Admin. Record Pub. Doc. 417), Exh. 33 (“Market Research Report”) (indicating
that Exh. 33 was “attached as Exhibit 7 to petitioners’ June 30, 2003 submission in the [2001-2002
Administrative Review]”). The Market Research Report was also placed on the record in the ninth
review – the review immediately preceding the review at issue here. See Taian Ziyang II, 35 CIT
at ____, 2011 WL 3024720 * 6 (citing Market Research Report).
41
The Azadpur APMC market did not begin classifying garlic as grade “S.A.” until May 1,
2006, but the Market Research Report is dated June 2003. See Remand Determination at 58; Market
Research Report. The Market Research Report therefore does not refer to grade “S.A.” garlic.
Court No. 06-00189 Page 52

Comments at 3; Domestic Producers’ Comments on New Surrogate Value Information (June 24,

2009) (Remand Pub. Doc. 3) at 4 (explaining that the Azadpur APMC data “differentiate between

prices for Grade A garlic (bulbs with a diameter of 4.0 to 5.5 cm) and Grade Super A garlic (bulbs

with a diameter greater than 5.5 cm)”).

The Chinese Producers conclude that there is a “serious lack of evidence to support the size

and nature of ‘A’ and ‘S.A.’ garlic.” See Pls. Reply Comments at 3-4 (emphasis added). However,

the gravamen of the Chinese Producers’ argument actually is not that there is an absence of

evidence, but, rather, that the sources on which Commerce relies are not – for lack of a better word

– “disinterested,” and that Commerce’s findings concerning the bulb sizes of “A”- and “S.A.”-grade

garlic are thus not supported by substantial evidence. See id. at 3; Pls. Comments at 5. There is no

merit to this claim.42

As a threshold matter, it strains credulity to suggest (as the Chinese Producers implicitly do)

that the Chinese Producers do not know the descriptions of grade “A” and “S.A.” garlic. See

generally Pls. Comments at 3-5; Pls. Reply Comments at 2-3; see also Remand Determination at 51,

53-54 (summarizing, and responding to, Chinese Producers’ arguments). Chinese garlic producers

are exporting significant quantities of garlic to India. See, e.g., Market Research Report at 28

42
Similarly without merit is the Chinese Producers’ claim that there is no evidence that
“Super A”-grade and “S.A.”-grade garlic are one and the same. See Pls. Comments at 3-4; Pls.
Reply Comments at 3; Remand Determination at 51 (referring to Chinese Producers’ argument).
It is of no moment whether or not “S.A.” stands for “Super A.” The critical fact is the bulb size of
grade “S.A.” garlic as that grade is used in the Azadpur APMC data. See Remand Determination
at 53-54; Domestic Producers’ Comments on New Surrogate Value Information (June 24, 2009)
(Remand Pub. Doc. 3) at 4 (explaining that Azadpur APMC data differentiate between grade “A”
garlic, with bulb diameter of 40 to 55 mm, and grade “S.A.” garlic, with bulb diameter of greater
than 55 mm).
Court No. 06-00189 Page 53

(noting that, during a twelve-month period in 2001-2002 alone, approximately 34,200 metric tons

of garlic were exported from China to India). As such, the notion that Chinese producers lack even

the most basic knowledge about how garlic is graded in India is somewhat difficult to swallow.

It is also worth noting that – although data from the Azadpur APMC market have been used

to value garlic bulb in subsequent reviews – the Chinese producers have not questioned the size of

the various grades of garlic in the more recent proceedings. See, e.g., Issues and Decision

Memorandum for the Final Results of the 15th Administrative Review of Fresh Garlic from the

People’s Republic of China, 76 ITADOC 37,321 (June 20, 2011), at Comment 3 (no reference to

any dispute over size of various grades of garlic); Fresh Garlic from the People’s Republic of China:

Issues and Decision Memorandum for the Final Results of the New Shipper Review of Qingdao Sea-

line Trading Co., Ltd., 75 ITADOC 61,130 (Sept. 24, 2010), at Issue 2 (same); Fresh Garlic from

the People’s Republic of China: Issues and Decision Memorandum for the Final Results of the

[Thirteenth] New Shipper Reviews and Rescission, In Part, of the [Thirteenth] New Shipper

Reviews, 74 ITADOC 50,952 (Sept. 24, 2009) (same).

Moreover, to the extent that the Chinese Producers here harbor any real doubts about the

sizes of “A”- and “S.A.”-grade garlic as those grades are used in the Azadpur APMC data on the

record of this proceeding, the Chinese Producers were obligated to raise their questions in a timely

fashion in the course of the remand, to afford Commerce and the Domestic Producers a proper

opportunity to address them before the evidentiary record closed.43 Although Commerce placed the

43
The Chinese Producers bristle at Commerce’s observation that the Chinese Producers
should have come forward with their own evidence of the description of “S.A.”-grade garlic if the
Chinese Producers dispute the description (i.e., garlic with a bulb diameter of greater than 55 mm)
Court No. 06-00189 Page 54

Azadpur APMC data on the record and invited the parties’ comments, the Chinese Producers’

submission did not question the sizes of “A”- and “S.A.”-grade garlic. See Letter from Commerce

to All Interested Parties (June 5, 2009) (Remand Pub. Doc. 1) (placing on the record Azadpur

APMC data and inviting parties’ comments); Respondents’ Comments Regarding New Surrogate

Value Placed on the Record for the Remand (June 24, 2009) (Remand Pub. Doc. 4) (objecting to use

of Azadpur APMC data in remand results, but raising no issue as to size of garlic bulb grades “A”

and “S.A.”); Remand Determination at 2-3 (summarizing Chinese Producers’ comments on Azadpur

APMC data).44 The Chinese Producers raised the issue of the descriptions of the various grades of

provided in the Domestic Producers’ June 24, 2009 submission. See Remand Determination at 54
(emphasizing that Chinese Producers “have . . . not provided any evidence to counter the
descriptions of the size of ‘S.A.’ grade garlic”); Pls. Comments at 4; Domestic Producers’
Comments on New Surrogate Value Information (June 24, 2009) (Remand Pub. Doc. 3) at 4.

The Chinese Producers insist that Commerce “misses the point,” and asserts that it is the
Chinese Producers’ “position . . . that there is no reliable evidence about what ‘S.A.’ garlic is or is
not.” See Pls. Comments at 4. But the Chinese Producers’ claim that there is no such “reliable
evidence” cannot be credited. “S.A.”-grade garlic is listed in the Azadpur APMC data; clearly,
“S.A.”-grade means something. If the Chinese Producers believe that the term “S.A.”-grade (as it
is used in the Azadpur APMC data) means something other than garlic with a bulb diameter of
greater than 55 mm, then the Chinese Producers should have proffered proof to that effect. If, on
the other hand, the Chinese Producers believe that the term does not have a consistent definition (or
that the definition is somehow ambiguous), then they should have proffered proof to that effect.
44
To be sure, Commerce’s letter placing the Azadpur APMC data on the record on remand
did not state that the Remand Determination would later use those data as the basis to calculate the
surrogate value for garlic bulb. See Letter from Commerce to All Interested Parties (June 5, 2009)
(Remand Pub. Doc. 1). However, at the time of Commerce’s letter, data from the Azadpur APMC
market already had been used to value garlic bulb in the

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/817880. Public record. Not legal advice.