Baoding Yude Chemical Industry Co. v. United States

Slip Op. 01-117

United States Court of International Trade

BAODING YUDE CHEMICAL INDUSTRY
CO., LTD.; BAODING ZHENXING
CHEMICAL CO., LTD.; P.H.T.
INTERNATIONAL, INC.

Plaintiffs,

v.
Before: Pogue, Judge
UNITED STATES,
Court No.: 00-04-00162
Defendant,
Public Version
and

NATION FORD CHEMICAL CO.,

Defendant-Intervenor.

[Plaintiffs’ Rule 56.2 Motion for Judgment on the Agency Record
denied.]

Decided: September 26, 2001

Garvey, Schubert & Barer (William E. Perry, John C. Kalitka) for
Plaintiffs.

Robert D. McCallum, Jr., Assistant Attorney General, David M.
Cohen, Director, Janene M. Marasciullo, Attorney, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice; Edna
Boyle-Lewicki, Attorney, Office of the Chief Counsel for Import
Administration, U.S. Department of Commerce, for Defendant.

Pepper Hamilton LLP, (Gregory C. Dorris, Benjamin M. Kahrl), for
Defendant-Intervenor.
Court No. 00-04-00162 Page 2

OPINION

Pogue, Judge: This action is before the Court on Plaintiffs’ motion

for judgment on the agency record pursuant to USCIT Rule 56.2.

Plaintiffs, Baoding Yude Chemical Industry Co., Ltd., Baoding

Zhenxing Chemical Co., Ltd., and P.H.T. International., Inc.

(collectively “Plaintiffs”), contest the final results of the

administrative review for the period August 1, 1997 through July

31, 1998 by the International Trade Administration of the U.S.

Department of Commerce (“Commerce” or the “Department”) of the

antidumping order covering sulfanilic acid imported from the

People’s Republic of China (“PRC”). See Sulfanilic Acid from the

People’s Republic of China, 65 Fed. Reg. 13,366 (Dep’t Commerce

March 13, 2000) (final results)(“Final Results”). Specifically,

Plaintiffs challenge Commerce’s decision to use the Indian domestic

price of aniline, rather than the price of aniline imported into

India, as a surrogate value in determining the cost of production

of sulfanilic acid exported from the PRC.

Sulfanilic acid is “a chemical intermediate used world wide to

make whitening agents for paper, yellow food colors, concrete

additives and speciality dyes.” Letter From ECS to Sec. of

Commerce, Petitioner’s Factual Info., P.R. Doc. No. 950 at Ex. 1

(Aff. of John Dickson at 1), Def.’s Public App. at Ex. C (Jan. 20,

1999)(“Petitioner’s Factual Info.”). Aniline is the principal raw

material used in the production of sulfanilic acid. See Pl.’s Mem.
Court No. 00-04-00162 Page 3

Supp. Mot. J. Agency R. at 2. The court has jurisdiction pursuant

to 28 U.S.C. § 1581(c)(1994).

Background

Commerce calculates an antidumping duty margin by comparing an

imported product’s price in the United States to the normal value

(“NV”) of comparable merchandise. 19 U.S.C. §1677b(a)(1994). NV

typically is based upon the domestic price of the product in the

exporting country. 19 U.S.C. § 1677b(a)(1)(B). When the exporting

country is a nonmarket economy (“NME”) country,1 however, under

certain circumstances Commerce must apply section 1677b(c) to

determine the NV. This provision reads as follows:

(1) In general. If--

(A) the subject merchandise is exported from
a nonmarket economy country, and

(B) [Commerce] finds that available
information does not permit the normal
value of the subject merchandise to be
determined under subsection (a) of this
section,[Commerce] shall determine the
normal value of the subject merchandise
on the basis of the value of the factors
of production utilized in producing the
merchandise . . . . The valuation of the
factors of production shall be based on
the best available information regarding

1
The term "nonmarket economy country" is defined by statute
as "any foreign country that the administering authority
determines does not operate on market principles of cost or
pricing structures, so that sales of merchandise in such country
do not reflect the fair value of the merchandise." 19 U.S.C.
§1677(18)(A).
Court No. 00-04-00162 Page 4

the values of such factors in a market
economy country or countries considered
to be appropriate by [Commerce].

19 U.S.C. §1677b(c). In valuing the factors of production, the

statute nonexclusively instructs Commerce to determine the cost of

labor, raw materials, utilities and capital costs. 19 U.S.C.

§1677b(c)(3). The purpose of section 1677b(c) is to construct the

product’s NV as it would have been if the NME country were a market

economy country, using the best available information regarding

surrogate values for the factors of production in a market economy

country. See Air Products & Chemicals, Inc. v. United States, 22

CIT 433, 435, 14 F. Supp. 2d 737, 741 (1998)(citing Timken Co. v.

United States, 16 CIT 142, 144, 788 F. Supp. 1216, 1218 (1992);

Tianjin Mach. Import & Export Corp. v. United States, 16 CIT 931,

940, 806 F. Supp. 1008, 1018 (1992));2 see also Nation Ford Chem.

Co. v. United States, 166 F.3d 1373, 1375 (1999)3(“Commerce’s task

[is] to assess the ’price or costs’ of factors of production of

sulfanilic acid in India in an attempt to construct a hypothetical

2
These cases, regarding Commerce’s NME methodology, were
decided under the pre-Uruguay Round version of the antidumping
statute. However, this aspect of the statute was not changed by
the Uruguay Round amendments. Compare 19 U.S.C. §1677b(c)(1988)
with 19 U.S.C. §1677b(c)(1994).
3
We refer frequently to three cases entitled Nation Ford
Chemical Co. v. United States . These references will be
abbreviated in chronological order. See Nation Ford Chem. Co. v.
United States, 21 CIT 1371, 985 F. Supp. 138 (1997)(" Nation Ford
I"), aff’d, 166 F.3d 1373 (1999); Nation Ford Chem. Co. v. United
States, 21 CIT 1378, 985 F. Supp. 138 (1997)(" Nation Ford II");
Nation Ford Chem. Co. v. United States , 166 F.3d 1373
(1999)("Nation Ford III").
Court No. 00-04-00162 Page 5

market value of that product in China.”).

Pursuant to section 1677b(c), Commerce found the PRC to be a

NME country4 and chose India as the surrogate market economy

country.5 To construct a surrogate NV for sulfanilic acid,

Commerce assigned a value to aniline, a major factor of production.

See Final Results at 13,367; Pl.’s Mem. Supp. Mot. J. Agency R. at

2 (“Aniline is the principal raw material of six inputs used in the

production of sulfanilic acid, constituting approximately 90

percent of the total unit cost.”). While there is no material

difference in quality or kind between domestic and imported

aniline, see Nation Ford I, 21 CIT at 1372, 985 F. Supp. at 135,

historically, Indian aniline producers have been protected by high

import tariffs. See Issues and Decision Memo for the

Administrative Review of Sulfanilic Acid from the People’s Republic

of China (PRC) from August 1, 1997 through July 31, 1998, P.R. Doc.

No. 1057 at 7, Pl.’s App. at Ex. 6 (Mar. 6, 2000) (“Decision

4
"In every case conducted by the Department involving the
PRC, the PRC has been treated as a nonmarket economy."
Sulfanilic Acid From the People’s Republic of China , 64 Fed. Reg.
48,788, 48,791 (Dep’t Commerce Sept. 8, 1999)(prelim.
results)("Preliminary Results").
5
Finding India to be at a level of economic development
comparable to the PRC and a significant producer of sulfanilic
acid, Commerce selected India as the surrogate market economy
country in accordance with 19 U.S.C. §1677b(c)(4). See
Preliminary Results at 48,791. No party challenges the use of
India as the surrogate market economy. See Pl.’s Mem. Supp. Mot.
J. Agency R. at 3; Memo from Analyst/IA to File, Selection of
Significant Producer Info., P.R. Doc. No. 990 at 1, Def.’s Pub.
App. at Ex. E (August 31, 1999)("Selection of Significant
Producer").
Court No. 00-04-00162 Page 6

Memo”). Accordingly, in the original antidumping investigation as

well as the following four administrative reviews, Commerce

calculated the surrogate NV using the imported price of aniline.6

See Sulfanilic Acid From the People’s Republic of China, 57 Fed.

Reg. 29,705 (Dep’t Commerce July 6, 1992)(final determ.);

Sulfanilic Acid From the People’s Republic of China, 61 Fed. Reg.

53,711 (Dep’t Commerce Oct. 15, 1996)(final results); Sulfanilic

Acid From the People’s Republic of China, 61 Fed. Reg. 53,702

(Dep’t Commerce Oct. 15, 1996)(final results and partial

recission); Sulfanilic Acid From the People’s Republic of China, 62

Fed. Reg. 48,597 (Dep’t Commerce Sept. 16, 1997)(final results);

Sulfanilic Acid From the People’s Republic of China, 63 Fed. Reg.

63,834 (Dep’t Commerce Nov. 17, 1998)(final results).

However, for the period of review at issue, August 1, 1997 to

July 31, 1998, Commerce departed from its prior practice and

calculated the surrogate NV using the domestic price of aniline.

See Decision Memo at 9. The sole issue before the Court is

Plaintiffs’ challenge to this decision.

6
Nation Ford Company, the sole domestic producer of
sulfanilic acid, challenged the final results of the
administrative reviews covering August 1, 1993 to July 31, 1994
and August 1, 1994 to July 31, 1995. See Nation Ford I, 21 CIT
1371, 985 F. Supp. 133; Nation Ford II, 21 CIT 1378, 985 F. Supp.
138. This Court sustained Commerce’s final decisions in both
cases. See Nation Ford I, 21 CIT 1371, 985 F. Supp. 133; Nation
Ford II, 21 CIT 1378, 985 F. Supp. 138. The Court of Appeals for
the Federal Circuit ("CAFC") affirmed this Court’s decision for
the administrative review covering August 1, 1993 to June 31,
1995. See Nation Ford III, 166 F.3d 1373.
Court No. 00-04-00162 Page 7

Standard of Review

The Court must uphold a final determination by Commerce in an

antidumping investigation unless it is “unsupported by substantial

evidence on the record, or otherwise not in accordance with law .

. . .” 19 U.S.C. § 1516a(b)(1)(B)(1994).

Substantial evidence is “more than a mere scintilla. It means

such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Consolidated Edison Co. v.

NLRB, 305 U.S. 197, 229 (1938). “[T]he possibility of drawing two

inconsistent conclusions from the evidence does not prevent an

administrative agency’s finding from being supported by substantial

evidence.” Consolo v. Federal Mar. Comm’n, 383 U.S. 607, 620

(1966). Thus, the Court’s function is not to reweigh the evidence

but rather to ascertain whether Commerce’s determination is

supported by substantial evidence on the record. Matushita Elec.

Indus. Corp. v. United States, 750 F.2d 927, 936 (1984).

Discussion

Plaintiffs make two claims. First, Plaintiffs argue that

Commerce’s determination is contrary to law in that the agency

failed to adequately justify its departure from prior practice.

See Pl.’s Mem. Supp. Mot. J. Agency R. at 20. Second, Plaintiffs

maintain that Commerce’s conclusion that the domestic price
Court No. 00-04-00162 Page 8

constitutes the best available information in this circumstance is

unsupported by substantial evidence on the record. See id. at 21-

30. For the reasons discussed below, the Court rejects both claims

and sustains Commerce’s decision to use the domestic price of

aniline as a factor of production.

I. Commerce Adequately Justified Its Departure From
Prior Practice

Plaintiffs, in their briefs, outline the original antidumping

investigation concerning sulfanilic acid from the PRC and the four

subsequent administrative reviews. See id. at 7-16. As Plaintiffs

correctly note, “in almost ten years of initial investigations and

administrative review investigations of sulfanilic acid from the

PRC, as well as the preliminary determination in this review, the

Department used the data for the lower priced imported aniline . .

. .” Id. at 3 (internal citations omitted). Plaintiffs argue that

this departure from previous practice is an abuse of discretion.7

See id. at 20.

More specifically, Plaintiffs argue that Commerce failed to

comply with Allegheny Ludlum Corporation v. United States’, 24 CIT

7
Plaintiffs point out that the preliminary results of the
administrative review at issue, which used the import price of
aniline in its calculations, followed Commerce’s prior practice.
See Pl.’s Mem. Supp. Mot. J. Agency R. at 3. Commerce, however,
is not obligated to calculate the values of factors of production
as they were calculated by Commerce during the preliminary
investigation. See Coalition for the Preservation of Am. Brake
Drum and Rotor Aftermarket Mfrs. v. United States , 23 CIT __, __,
44 F. Supp. 2d 229, 259 (1999)(" Coalition").
Court No. 00-04-00162 Page 9

__, __, 112 F. Supp. 2d 1141, 1147 (2000), ruling that “an agency

must either conform its actions to its prior decisions or explain

the reasons for its departure.” See Pl.’s Mem. Supp. Mot. J.

Agency R. at 20. We agree that the principle stated in Allegheny

is controlling. The Decision Memo, adopted by Commerce in the

Final Results, however, clearly refutes Plaintiffs’ allegation that

Commerce failed to articulate its reasons for departing from prior

practice.

In the Decision Memo, Commerce reviewed the parties’ arguments

concerning the appropriate selection of a surrogate value. See

Decision Memo at 7-9 (summarizing in length the parties’

arguments). Commerce outlines four specific and independent

grounds upon which it based its decision to use the domestic price

of aniline. See id. at 9. First, Commerce concluded that the

reduction in the high Indian tariff rate effectively removed the

previous distortions in the domestic price. See id. Second,

Commerce concluded that the increased exports of aniline products

from India suggested that Indian manufacturers and exporters no

longer depended on imported aniline. See id. Third, Commerce

further concluded from the decrease in domestic price “to a level

comparable to the published export price,” that during the period

of review Indian manufacturers and exporters used domestically

produced aniline. Id. Finally, Commerce noted that the record

contains information from which the domestic price of aniline could
Court No. 00-04-00162 Page 10

be adjusted accurately for excise and local taxes.8 See id.

Commerce’s articulation of these four independent grounds for

its departure from prior practice satisfies the principle set forth

in Allegheny. Therefore, we reject Plaintiffs’ contention and hold

that Commerce acted in accordance with law. Allegheny provides

Commerce with some flexibility, recognizing that “‘[e]xperience is

often the best teacher, and agencies retain a substantial measure

of freedom to refine, reformulate, and even reverse their

precedents in the light of new insights and changed

circumstances.’” Cultivos Miramonte S.A. & Flores Mocari S.A. v.

United States, 21 CIT 1059, 1064, 980 F. Supp. 1268, 1274 n.6

(1997)(emphasis added)(quoting Davila-Bardales v. INS, 27 F.3d 1,

5 (1st Cir. 1994)).

The CAFC affirmed Commerce’s original decision to use the

import price of aniline due to the distortions caused by the

abnormally high tariff rate of 85 percent. See Nation Ford III,

166 F.3d at 1377-78. The reduction in the tariff rate eliminated

the original, primary reason for using the import price. Thus,

8
The articulation of these four reasons for selecting the
domestic price of aniline effectively dispels the Plaintiff’s
claim that Commerce’s decision is "arbitrary and capricious."
See Pl.’s Mem. Supp. Mot. J. Agency R. at 20. The arbitrary and
capricious standard is extremely deferential. See Motor Vehicle
Mfrs. Assoc. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43
(1983). It requires only that Commerce articulate a satisfactory
explanation for its action including a "rational connection
between the facts found and the choice made." Motor Vehicle
Mfrs. Assoc., 463 U.S. at 43(quoting Burlington Truck Lines, Inc.
v. United States, 371 U.S. 156, 168 (1962)). The four separate
reasons articulated by Commerce meet this threshold.
Court No. 00-04-00162 Page 11

Commerce’s articulated reasons, if supported by substantial

evidence, appropriately adapt an existing methodology for

determining the surrogate NV of sulfanilic acid to the change in

circumstances in the Indian domestic aniline market.

II. Commerce’s Articulated Reasons Are Supported By Substantial
Evidence

Section 1677b(c)(1)(B) requires Commerce to calculate factors

of production on the basis of the best available information. The

statute, however, leaves the phrase “best available information”

undefined. See Shandong Huarong Gen. Corp., slip op. 01-88, at 12

(CIT July 23, 2001). For this reason, the Court has recognized

that “the process of constructing foreign market value for a

producer in a nonmarket economy country is difficult and

necessarily imprecise.” Nation Ford III, 166 F.3d at 1377

(internal citations omitted). Providing Commerce with only

guidelines, Section 1677b(c) grants Commerce substantial discretion

in the valuation of the factors of production. See id.

The purpose of the statute necessarily curtails Commerce’s

otherwise wide discretion. See Coalition, 23 CIT at __, 44 F.

Supp. 2d at 258 (citing GMN Georg Muller Nurnberg AG v. United

States, 15 CIT 174, 178, 763 F. Supp. 607, 611 (1991)). More

specifically, Commerce must “estimate as accurately as possible

what the market price of aniline would have been in the PRC ’if

such prices were . . . determined by market forces.’” Nation Ford
Court No. 00-04-00162 Page 12

I, 21 CIT at 1373, 985 F. Supp. at 135 (internal citations

omitted); see also Writing Instrument Mfrs. Ass’n, Pencil Section

v. United States, 21 CIT 1185, 1191, 984 F. Supp. 629, 637

(1997)(“The Court finds that the paramount objective of the statute

is to obtain the most accurate determination of dumping margins

utilizing the best information available within the broad outlines

of the statute.”). “Commerce [however] need not prove that its

methodology was the only way or even the best way to calculate

surrogate values for factors of production as long as it was a

reasonable way.” Coalition, 23 CIT at __, 44 F. Supp. 2d at 258

(internal citations omitted); see also Shandong Huarong Gen. Corp.,

slip op. 01-88, at 12.

Plaintiffs appear to argue that despite the change in

circumstances the price of imported aniline remained the best

available information for the administrative review at issue, as

was the case in past administrative reviews. See Pl.’s Mem. Supp.

Mot. J. Agency R. at 23. Plaintiffs challenge the evidentiary

support for three of the four factors upon which Commerce relied in

making its decision that the domestic price of aniline constituted

the best available information.9 See Pl.’s Reply Mem. Supp. Mot.

J. Agency R. at 5. Plaintiffs submit that this decision is not

supported by substantial evidence and therefore cannot meet the

9
Plaintiffs do not challenge Commerce’s assertion that
information on the record enables the accurate adjustment of the
domestic price to account for local and excise taxes. See Pl.’s
Mem. Supp. Mot. J. Agency R. at 16-17.
Court No. 00-04-00162 Page 13

standard of review for sustaining Commerce’s determinations. See

id. at 4-5.

Commerce, however, correctly notes that simply because the

price of imported aniline constituted the best available

information for the preceding reviews does not prove that such

price remains the best available information for the review now at

issue. See Def.’s Mem. Opp’n Mot. J. Agency R. at 34. Rather,

what information is the best available information “will

necessarily depend on the circumstances . . . .” See id. at 17, 34

(citing Nation Ford III, 166 F.3d at 1377). Commerce maintains,

and we agree, that the record demonstrates that there exist

substantial changes in the Indian aniline market which support

Commerce’s decision that the domestic price of aniline constitutes

the best available information.10

10
Commerce, in its briefs, proffers three additional reasons
for rejecting the price of imported aniline. First, there is
evidence suggesting that the price of aniline imports was a
consequence of dumping. See Def.’s Mem. Opp’n to Mot. J. Agency
R. at 32. Second, the record reveals that prices in the world
aniline market are dependent on production facilities. See
Letter From ECS to Sec. of Commerce, Petitioner’s Factual Info.,
C.R. Doc. No. 949 at Momentum Consultants’ Report on World
Aniline Prices, Dec. 1998 at 000054(“Confidential Info.”).
Third, the record contains evidence that most imported aniline is
sold in bulk quantities greatly in excess of the quantity
purchased by Indian sulfanilic acid producers. See Br. From Law
Firm of Hogan Hartson to Sec. of Commerce, Petitioner’s Case Br.,
P.R. Doc. No. 1046 at 28-29, Def.’s Pub. App. at Ex. G (Jan. 14,
2000)("Hogan Hartson")(internal citations omitted). This
evidence has not been specifically cited by Commerce as a factor
in its decision. Commerce is "presumed . . . to have considered
all pertinent information sought to be brought to its attention .
. . [and] there is no statutory requirement that [Commerce]
explicitly discuss every piece of record evidence that is put
before it in an investigation." Allegheny Ludlum Corp , 24 CIT at
Court No. 00-04-00162 Page 14

A. The Import Duty Rate Decline for Aniline
Effectively Removed Distortions

Throughout previous administrative reviews of sulfanilic acid,

Commerce determined that India’s Advance License Program protected

its domestic aniline industry from global competition by imposing

an 85 percent ad valorem tariff rate on aniline imports. See e.g.

Nation Ford III, 166 F.3d at 1375. This high protective tariff, a

classic example of a nonmarket force, see Nation Ford I, 21 CIT at

1374, 985 F. Supp. at 135-36, greatly inflated the cost of

domestically produced aniline. See Nation Ford III, 166 F.3d at

1375. Heeding Congress’ directive to avoid such distortions,

Commerce, in the prior reviews, therefore used the price of aniline

imported into India to determine the surrogate value in the PRC.

See H.R. Conf. Rep. No. 100-576 at 590 (1988), reprinted in 1988

U.S.C.C.A.N. 1547, 1623.

For the period of review covered by this case, however, India

had reduced the rate of duty on aniline imports from 85 percent to

30 percent. See Decision Memo at 9. Because all parties agree

that during this period of review the import tariff was 30 percent,

__, 112 F. Supp. 2d at 1165. Nonetheless, this Court cannot rely
on these reasons for Commerce’s decision because they were not
relied upon by the agency in its decision. See U.S. Steel Group
v. United States, 24 CIT __, ___, 123 F. Supp. 2d 1365, 1369,
(2000); see also Burlington Truck Lines , 371 U.S. 156, 168-69
("The Courts may not accept . . . counsel’s post hoc
rationalizations for agency action; [ SEC v. Chenery Corp. , 332
U.S. 194, 196 (1947),] requires that an agency’s discretionary
order be upheld, if at all, on the same basis in the order by the
agency itself.").
Court No. 00-04-00162 Page 15

the issue is whether Commerce properly accorded significance to

this duty reduction in relying on the domestic price of aniline.11

Plaintiffs argue that, while notable, the reduction in the tariff

rate did not eliminate the pricing distortions in the Indian

aniline market. See Pl.’s Reply Mem. Supp. Agency R. at 5. The

United States, as noted by the Plaintiffs, imposes a tariff rate of

only 9.3 percent on imported aniline. See Pl.’s Mem. Supp. Agency

R. at 22 (internal citations omitted). Invoking a comparison with

the Indian import tariff, Plaintiffs declare that 30 percent is

still a relatively high tariff rate and therefore Commerce should

have continued to use the price of imported aniline in its cost

analysis. See id.

Commerce argues that the reduction in the tariff rate

effectively removed the distortions in the domestic price caused by

the previously “abnormally high” rate of 85 percent. See Decision

Memo at 9. Such a reduction is significant in this case because of

the role the “abnormally high” tariff rate played in the previous

administrative reviews. This abnormally high tariff rate was

previously identified as the primary reason that Commerce chose the

11
Plaintiffs attribute some significance to the fact that
India may increase the import tariff sometime in the future. See
Pl.’s Mem. Supp. Mot. J. Agency R. at 22. The administrative
review at hand covers only the period from August 1, 1997 to July
31, 1998. Consequently, the possibility of an increase in the
import tariff is irrelevant. See Torrington Co. v. United
States, 24 CIT __, __, 116 F. Supp. 2d 1206, 1213 (2000); Sanyo
Electric Co., Ltd. v. United States , 22 CIT 304, 309-10, 9 F.
Supp. 2d 688, 694 (1994).
Court No. 00-04-00162 Page 16

price of imported aniline as the surrogate value for the PRC

product rather than the domestic price. See Nation Ford III, 166

F.3d at 1377-78. The CAFC sustained Commerce’s prior selection of

the import price primarily because the domestic price was

“distorted by the tariff”. See id. at 1377-78. Accordingly,

“when the tariff rates changed dramatically, the rationale for

using the import prices dissipated as well.” Def.-Int.’s Mem.

Opp’n to Mot. J. Agency R. at 11; see also Decision Memo at 9.

Additionally, the current tariff rate of 30 percent “equals the

rate applicable to two other inputs for which we have used domestic

prices as surrogate values (sulfuric acid and sodium bicarbonate).”

Decision Memo at 9.

Furthermore, as Commerce argues, the United States tariff rate

should not be used as a point of reference for evaluating surrogate

values because the United States and India are not on similar

levels of economic development. See Petitioner’s Factual Info. at

17; Def.’s Mem. Opp’n to Mot. J. Agency R. at 27; cf. 19 U.S.C.

§1677b(c)(4). Aniline prices are country specific, i.e., the price

of aniline varies according to the level of production at each

country’s facilities. See Def.’s Mem. Opp’n to Mot. J. Agency R.

at 28 n.6; Confidential Info. at 000054. The United States, at an

advanced level of production relative to India, is able to produce

aniline at a lower cost, and the import tariff reflects this fact.

See Def.’s Mem. Opp’n to Mot. J. Agency R. at 28 n.6; Confidential
Court No. 00-04-00162 Page 17

Info. at 000054. Therefore, the United States, able to produce

aniline cheaply, does not need to protect its domestic industry

with a high import tariff. Here, the United States is not the

surrogate for the PRC; India is. See Selection of Significant

Producer at 1.12

Moreover, section 1677b(c)(1)(B) grants Commerce substantial

discretion to choose the best information available. Inherent in

this discretion is Commerce’s ability, within the confines of

section 1677b(c)’s guidelines, to decide that an 85 percent tariff

distorts the domestic prices while a 30 percent tariff does not.

This type of line-drawing exercise is precisely the type of

12
Plaintiffs further argue that Commerce should have used
the import price as "it is the Department’s practice, when the
data are equal in terms of specificity, contemporaneity, and
representativeness, to use an import price over a domestic price
because the former is reported on a duty-exclusive, tax exclusive
basis, while the latter almost always is not." Pl.’s Reply Mot.
J. Agency R. at 11 (quoting Sulfanilic Acid From the People’s
Republic of China, 63 Fed. Reg. 63,834, 63,838). This Court,
however, has upheld Commerce’s use of domestic prices to
determine the surrogate normal value when the domestic price is
more indicative of actual value than the import price. See
Kerr-McGee Chem. Corp. v. United States , 21 CIT 1353, 1365, 985
F. Supp. 1166, 1177 (1997); see also Pure Magnesium from the
People’s Republic of China , 63 Fed. Reg. 3,085, 3,087 (Dep’t
Commerce Jan. 21, 1998); Certain Cut-To-Length Carbon Steel Plate
from the People’s Republic of China , 62 Fed. Reg. 61,964, 61,966
(Dep’t Commerce Nov. 20, 1997); Brake Drums and Brake Rotors from
the People’s Republic of China , 62 Fed. Reg. 9,160, 9,163 (Dep’t
Commerce Feb. 28, 1997) . Here, Commerce found, and Plaintiffs do
not challenge, that the domestic price can be accurately adjusted
for local and excise taxes. Once adjusted, Commerce determined
that the domestic price is the best available information for
constructing what the cost of aniline in the PRC would be if it
was a market economy. Therefore, the policy behind Commerce’s
preference, expressed in Sulfanilic Acid From the People’s
Republic of China, is not relevant in this case.
Court No. 00-04-00162 Page 18

discretion left within the agency’s domain. There are no set rules

for determining best available information; rather, Commerce makes

the decision on a case-by-case basis, attempting to obtain the most

accurate determination for each specific case. See Nation Ford

III, 116 F.3d at 1377. Best information available is dependent on

the circumstances during the POI. See id. Commerce then takes

into account any factors that may distort either the import or

domestic price thereby not making it useful surrogate data or the

best information available. This Court had previously held that an

85 percent tariff was too high. See Nation Ford II, 21 CIT 1378,

985 F. Supp. 138. At some point between 85 percent and no tariff,

Commerce has the ability, as long as this decision is supported by

substantial evidence, to determine that the tariff rate is no

longer distorting the domestic data. Here, Commerce used this

discretion to determine that a 30 percent tariff no longer

distorted the domestic price, and this decision is supported by

substantial evidence.13

13
Plaintiffs further argue that when the weight-averaged
Indian domestic price of 40.0641 Rs/kg is discounted by the
tariff rate, the result is equal to the import price. See Pl.’s
Reply at 10. According to Plaintiffs, this demonstrates that the
domestic price is distorted by the tariff rate. See id. It is
more appropriate, however, to look at the import price of 28.04
Rs/kg, see id., and adjust that price by the tariff rate. The
result is 36.452 Rs/kg. This price is lower than the domestic
price, supporting Commerce’s decision that the 30 percent tariff
does not distort the domestic price.
Court No. 00-04-00162 Page 19

B. India is a Net Exporter of Aniline

The Decision Memo states “the dramatic growth in aniline

exports prior to and during the [period of review] as evidenced by

the Monthly Statistics of the Foreign Trade of India (MSFTI),

suggests that Indian manufacturers and exporters are no longer

reliant on imported aniline to produce sulfanilic acid.” Decision

Memo at 9. Plaintiffs, asserting that this statement is merely an

assumption without any evidentiary support, argue that the

continued existence of India’s Advance License Program reveals that

Indian sulfanilic acid producers still use imported aniline. See

Pl.’s Reply Mem. Supp. Mot. J. Agency R. at 12-13. Plaintiffs

further speculate that the growth in Indian exports of aniline is

the result of dumping. See id. at 13. Finally, Plaintiffs argue

that “reasonable Indian manufacturers of sulfanilic acid for export

would use only the lower-priced imported aniline to produce for

export.” Id.

Commerce’s determination that there was a significant increase

in aniline exports prior to and during the period of review is

supported by substantial evidence. Specifically, evidence in the

record demonstrates that between 1996 and 1999 Indian aniline

production has tripled. See Hogan Hartson at 22-23 (internal

citation omitted). During this same period, Indian aniline exports

increased ten-fold. See id. at 23. Evidence suggests that at

least 59 percent of aniline derivatives exported from India were
Court No. 00-04-00162 Page 20

made with domestically produced aniline. See id.; see also

Confidential Information at 000041 [

]. While it is true that no evidence was

submitted to indicate how much sulfanilic acid was produced with

domestically produced aniline, Plaintiffs submitted no evidence to

suggest that sulfanilic acid differed from the other aniline

derivatives. Here, although the evidence supports conclusions

other than those reached by Commerce, there is also sufficient

evidence to support Commerce’s determination. See Consolo, 383

U.S. at 620.

C. The Decline in the Domestic Price of Aniline

While Plaintiffs concede that Indian domestic prices for

aniline would fall as the tariff rate applied to such imported

merchandise declines, they seemingly are unwilling to accept

Commerce’s conclusion that domestic prices for aniline have in fact

fallen. See Pl.’s Reply Mem. Supp. Mot. J. Agency R. at 14-15

(referring to the “purported downward trend”). Commerce, however,

cites evidence submitted by the Plaintiffs themselves which reveals

that domestic prices have demonstrably declined. See Def.’s Mem.

Opp’n to Mot. J. Agency R at 27-28; Aniline Market Prices. Because

the record demonstrates a downward trend in the price of domestic

aniline, it is the Plaintiffs’ second argument concerning the
Court No. 00-04-00162 Page 21

decrease in price which warrants examination.

Accepting, arguendo, that the domestic price has fallen

considerably, Plaintiffs maintain that the domestic price of

aniline continues to be distorted due to the remaining 30 percent

import tariff. See Pl.’s Reply Mem. Supp. J. Agency R. at 14.

Thus, Plaintiffs charge that Commerce should conclude that the

price reduction has resulted in the continued use of imported

aniline for export of sulfanilic acid. See id. Plaintiffs assert

that from a “pure economics/common sense” perspective Indian

producers must continue to use the cheaper, imported aniline. Id.

at 15.

Specifically, Plaintiffs make a comparison between the average

Indian export price of sulfanilic acid during 1996-1997, which is

46.22 Rs/Kg, and the lowest average per unit Indian domestic

aniline price during 1996-1997, which is 48.5 Rs/Kg. See id. at 16

(internal citations omitted). From this comparison, Plaintiffs

conclude that the only rational conclusion is that Indian producers

of sulfanilic acid use imported aniline given the continued

existence of the Advance License Program. See Pl.’s Mem. Supp.

Mot. J. Agency R. at 24-25. As Commerce notes, however, the

average price of sulfanilic acid exported to the United States from

India during the period of review was 72.29 Rs/kg. See Def.’s Mem.

Opp’n Mot. J. Agency R. at 29-30; Letter From Law Firm Williams,

Mullen, Clark & Dobbins, Respondents’ Surrogate Data, P.R. Doc. No.
Court No. 00-04-00162 Page 22

965 at Table of Exports of Sulfanilic Acid, Pl.’s App. at 4 (July

14, 1999)(“Exports of Sulfanilic Acid”). Thus, Commerce rationally

concludes that Indian exporters of sulfanilic acid could use

domestic aniline and still make a profit. Commerce argues, and we

agree, that it may appropriately rely on this comparison because

the ultimate question is to construct “what price the PRC would

have paid for aniline used to produce sulfanilic acid for export to

the United States.” Def.’s Mem. Opp’n Mot. J. Agency R. at 30 n.7.

Assuming, arguendo, that some Indian exports of sulfanilic

acid may be produced from imported aniline, the Plaintiffs’

reliance on this fact is nonetheless misplaced. The “factors of

production” methodology does not require Commerce to calculate the

surrogate NV on the basis of what Indian producers use. See Nation

Ford III, 166 F.3d at 1377. Rather, in selecting surrogate values,

Commerce is guided by the purpose of the factors of production

methodology, which “is not to construct the cost of manufacturing

the subject merchandise in India per se, but to use data from one

or more surrogate countries to construct what the cost of

production would have been in China were China a market economy

country.” Tapered Roller Bearings From the People’s Republic of

China, 62 Fed. Reg. 6,189, 6,193 (Dep’t Commerce Feb. 11,

1997)(final results); see also Tianjin Machinery Import & Export

Corp. v. United States, 16 CIT at 940, 806 F. Supp. at 1018; Nation

Ford III, 166 F.3d at 1375 (“Commerce’s task [is] to assess the
Court No. 00-04-00162 Page 23

’price or costs’ of factors of production of sulfanilic acid in

India in an attempt to construct a hypothetical market value of

that product in China.”).

For the case at hand, Commerce attempted to construct the cost

of aniline in the PRC as if the PRC were a market economy country.

To be affirmed, Commerce “need not prove that its methodology was

the only way or even the best way to calculate surrogate values for

factors of production as long as it was a reasonable way.”

Coalition, 23 CIT at __, 44 F. Supp. 2d at 258. The domestic

price of aniline has demonstrably declined. See Def.’s Mem. Opp.’n

to Mot. J. Agency R. at 27-28; Aniline Market Prices. The record

also contains evidence which indicates that at least 59 percent of

aniline derivatives exported from Indian are produced with

domestically produced aniline. See Hogan Hartson at 23 (internal

citations omitted). This evidence led Commerce to decide that the

lower tariff rate enabled domestic aniline to be used in the

production of sulfanilic acid for export. Thus, the Court finds

that Commerce’s determination is supported by substantial evidence.
Court No. 00-04-00162 Page 24

CONCLUSION

The record clearly reveals numerous changes in the Indian

domestic aniline market, notably, that for the entire period of

review at issue the import tariff on aniline was reduced from 85

percent to 30 percent. Examining these changes, Commerce concluded

that the domestic price of aniline constituted best available

information. By articulating a reasonable rationale for departing

from prior practice, Commerce acted in accordance with law.

Morever, the totality of the changes in the Indian domestic aniline

market provide a reasonable basis for Commerce’s decision and the

premises in Commerce’s analysis are supported by substantial

evidence. For these reasons, the Court sustains Commerce’s

decision to use the domestic price of aniline in constructing the

surrogate NV. Accordingly, Plaintiffs’ Rule 56.2 Motion for

Judgement on the Agency Record is denied. Judgment will be entered

accordingly.

Donald C. Pogue
Judge

Dated: September 26, 2001
New York, New York
 Slip Op. 01-117

United States Court of International Trade

BAODING YUDE CHEMICAL INDUSTRY
CO., LTD.; BAODING ZHENXING
CHEMICAL CO., LTD.; P.H.T.
INTERNATIONAL, INC.

Plaintiffs,

v.
Before: Pogue, Judge
UNITED STATES,
Court No.: 00-04-00162
Defendant,

and

NATION FORD CHEMICAL CO.,

Defendant-Intervenor.

Judgment

This action has been duly submitted for decision, and this

Court, after due deliberation, has rendered a decision herein; now,

in conformity with that decision, it is hereby

ORDERED that Plaintiff’s motion for judgment on the agency

record is denied; and it is further
 ORDERED the Department of Commerce’s final results for

Sulfanilic Acid from the People’s Republic of China, 65 Fed. Reg.

13, 366 (Dep’t Commerce March 13, 2000) is sustained in its

entirety.

Donald C. Pogue
Judge

Dated: September 26, 2001
New York, New York