Shenzhen Xinboda Industrial Co. Ltd. v. United States

Slip Op. 21-13
UNITED STATES COURT OF INTERNATIONAL TRADE
Before: Claire R. Kelly, Judge
Court No. 12-00174
OPINION
[Sustaining 	the 	results 	of 	the 	U.S. 	Department 	of 	Commerce’s 	remand
redetermination in the sixteenth administrative review of the antidumping duty
order covering fresh garlic from the People’s Republic of China.]
Dated: February 8, 2021
Gregory S. Menegaz, J. Kevin Horgan, and Alexandra H. Salzman, deKieffer &
Horgan, PLLC, of Washington, DC, for plaintiff.
Richard P. Schroeder, Trial Attorney, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, of Washington, DC, for defendant. Also on the brief was
Reginald T. Blades, Jr., Assistant Director, Jeanne E. Davidson, Director, Jeffrey
Bossert Clark, Acting Assistant Attorney General. Of counsel was Brendan Saslow,
Attorney, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S.
Department of Commerce, of Washington, DC.
SHENZHEN XINBODA INDUSTRIAL
CO., LTD.,
Plaintiff,
v.
UNITED STATES,
Defendant,
and
FRESH GARLIC PRODUCERS
ASSOCIATION ET AL.,
Defendant-Intervenors.
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Michael 	J. 	Coursey and 	John 	M. 	Herrmann, 	Kelley 	Drye 	& 	Warren 	LLP, 	of
Washington, DC, for defendant-intervenors Fresh Garlic Producers Association,
Christopher Ranch L.L.C., The Garlic Company, Valley Garlic, and Vessey and
Company, Inc.
Kelly, 	Judge: 	Before 	the 	court 	is 	the 	U.S. 	Department 	of 	Commerce’s
(“Commerce”) remand redetermination pursuant to the court’s order in Shenzhen
Xinboda Indus. Co. v. United States, 44 CIT __, __, 456 F. Supp. 3d 1272, 1291–92
(2020) (“Shenzhen Xinboda I”). See also Final Results of Redetermination Pursuant
to Ct. Remand Order in [Shenzhen Xinboda I], July 16, 2020, ECF No. 56-1 (“Remand
Results”). 	In Shenzhen Xinboda I, the court remanded in part Commerce’s final
determination in the sixteenth administrative review of the antidumping duty
(“ADD”) order covering fresh garlic from the People’s Republic of China (“PRC”). See
Shenzhen Xinboda I, 44 CIT at __, 456 F. Supp. 3d at 1291–92. The court ruled that
Commerce’s explanation for choosing Tata Tea’s financial data was unreasonable
because Commerce did not confront evidence that the company is or may be the
beneficiary of subsidies. See id. at 1290. Moreover, the court held that if Commerce’s
practice is to rely on the financial statement of a company that is or may be the
beneficiary of subsidies, so long as those subsidies were not previously found to be
countervailable by Commerce, Commerce should affirm its practice and explain why
it is reasonable, particularly in this case where there is evidence that the 	financial
statements 	contain 	countervailable 	subsidies. 	See 	id. 	at 	1291. 	On 	remand,
Commerce reconsiders its decision to rely on Tata Tea’s unconsolidated financial
statements 	to 	calculate 	Plaintiff, 	Shenzhen 	Xinboda 	Industrial 	Co., 	Ltd.’s
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(“Xinboda”), surrogate financial ratios. See generally Remand Results. Nonetheless,
Commerce continues to rely on Tata Tea’s financial statements, explaining that its
practice is to disregard a financial statement only when the financial statement
shows that the company received a previously determined countervailable subsidy,
and that neither Tata Tea’s financial statements, nor the loan documentation
Xinboda 	submitted, 	show 	that 	Tata 	Tea 	received 	a 	previously 	determined
countervailable subsidy. See id. at 5–9, 12–14, 16–18. Commerce also explains why
the application of its practice is reasonable in this case. 	See id. at 6–9. 	For the
following reasons, the court sustains Commerce’s remand redetermination.
BACKGROUND
The court presumes familiarity with the facts of this case, as set out in its
previous remand order, and now recounts the facts relevant to disposition of this
action. 	See Shenzhen Xinboda I, 44 CIT at __, 456 F. Supp. 3d at 1276–78. 	On
December 28, 2010, Commerce initiated its sixteenth administrative review of the
ADD order on fresh garlic from the PRC, for the period of review November 1, 2009
through October 31, 2010 (“POR”), at the request of FGPA and its individual
members. 	See Initiation of Antidumping and Countervailing Duty Admin. Reviews
and Request for Revocation in Part, 75 Fed. Reg. 81,565, 81,568–69 (Dep’t Commerce
Dec. 	28, 	2010). 	Commerce 	selected 	Xinboda 	and 	Golden 	Bird 	as 	mandatory
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respondents. 1 	See Fresh Garlic from [the PRC], 76 Fed. Reg. 76,375, 76,376 (Dep’t
Commerce Dec. 7, 2011) (prelim. results of the 2009-2010 [ADD] admin. review)
(“Prelim. Results”), and accompanying Issues & Decision Memo for the [Prelim.
Results], A-570-831, PD 134, (Nov. 30, 2011), ECF No. 54 (“Prelim. Decision Memo”). 2
On June 11, 2012, Commerce published its final results. See Fresh Garlic from
the [PRC], 77 Fed. Reg. 34,346 (Dep’t Commerce June 11, 2012) (final results of the
2009-2010 admin. review of the [ADD] order) (“Final Results”), and accompanying
Issues 	& 	Decision 	Memo 	for 	the 	[Final 	Results], 	A-570-831,
PD 220, (June 4, 2012), ECF No. 54 (“Final Decision Memo”). Given that Commerce
considers the PRC to be a non-market economy (“NME”), Commerce calculated
normal value by using India as the primary surrogate country to value factors of
production (“FOPs”). See Prelim. Decision Memo at 10; Final Decision Memo at 3–6.
Commerce relied on garlic prices from the APMC Bulletin, to value the garlic bulb
input, because the APMC Bulletin prices were publicly available, specific to the input,
1 Initially, Commerce selected three additional exporters as mandatory respondents,
but, following petitioners’ withdrawals of their requests for review, Commerce
rescinded review with respect to those exporters. 	See Prelim. Results, 76 Fed. Reg.
at 76,375–76.
2 During the sixteenth administrative review, Commerce switched from manual to
electronic filings of the administrative record. Therefore, there are two indices, one
manual and the other electronic, for the public and confidential documents. 	On
February 	19, 	2020, 	Defendant 	electronically 	filed 	indices 	to 	the 	public 	and
confidential administrative records underlying Commerce’s remand redetermination,
on the docket, at ECF Nos. 54 and 53, respectively. All further references to
administrative 	record 	documents 	are 	identified 	by 	the 	numbers 	assigned 	by
Commerce in those indices and preceded by “PD” and “CD” to denote public or
confidential documents.
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largely contemporaneous with the POR, tax and duty exclusive, and represented a
broad market average. See Final Decision Memo at 11–36. 	In addition, Commerce
used Tata Tea’s financial statements to calculate Xinboda’s surrogate financial ratios,
finding that its production processes—albeit of tea—were most similar to Xinboda’s
fresh garlic processing. 	See Final Decision Memo at 40–45. 	Commerce found no
evidence in the financial statements that indicated the company was in receipt of
subsidies that Commerce previously determined to be countervailable. 	See Final
Decision Memo at 42.
On 	April 	17, 	2020 	the 	court 	remanded 	aspects 	of 	Commerce’s 	final
determination for further explanation or reconsideration. 	See Shenzhen Xinboda I,
44 CIT at __, 456 F. Supp. 3d at 1291–92. Shenzhen Xinboda I held that Commerce’s
explanation for relying on Tata Tea’s financial statements was not reasonable in light
of evidence that indicated Tata Tea may have received subsidies. 	See id. at 1290.
The court also remanded for Commerce to explain whether it has a practice to rely on
the financial statement of a company that is or may be the beneficiary of subsidies,
so 	long 	as 	those 	subsidies 	were 	not 	previously 	found 	by 	Commerce 	to 	be
countervailable; and, if so, why it is reasonable to rely on such financial statements
in this case, where there is evidence of countervailable subsidies in Tata Tea’s
financial statements. See id. at 1291.
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On 	remand, 	Commerce 	continues 	to 	rely 	on 	Tata 	Tea’s 	unconsolidated
financial statements to calculate Xinboda’s surrogate financial ratios. 	Commerce
explains that its practice is to only disregard financial statements when they contain
explicit evidence of previously determined countervailable subsidies, see Remand
Results at 5, and that here, there is no explicit evidence of previously determined
countervailable subsidies in Tata Tea’s financial statements. 	See id. at 10–11.
Nonetheless, Commerce considers the documentation Xinboda submitted as evidence
of countervailable subsidies, and finds that those documents do not undermine its
determination to use Tata Tea’s financial statements. See id. at 11–18.
In response, Xinboda argues Commerce “shall” disregard financial statements
where 	it 	has 	a 	“reason 	to 	believe 	or 	suspect” 	that 	the 	company 	received
countervailable subsidies. 	See Pl. [Xinboda’s] Cmts. Opp. Commerce’s Remand
Redetermination at 7, Aug. 17, 2019, ECF No. 58 (“Xinboda’s Br.”). 3 	According to
Xinboda, Commerce’s stated practice of only disregarding financial statements that
contain explicit evidence of countervailable subsidies is inconsistent with the reason
to believe or suspect standard provided by the relevant legislative history. 	See id.
Xinboda 	claims 	that 	the 	documentation 	it 	submitted 	(containing 	loan 	or
hypothecation agreements) is more than sufficient as evidence to provide a reason to
believe or suspect that Tata Tea received countervailable subsidies. See id. at 8–9.
3 Xinboda also argues that Commerce is incorrect to rely on the revised statutory
scheme, as amended by 19 U.S.C. § 1677b(c)(5). See Xinboda’s Br. at 4–7.
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JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction pursuant to section 516A(a)(2)(B)(iii) of the Tariff
Act of 1930, as amended 19 U.S.C. § 1516a(a)(2)(B)(iii) (2012), 4 and 28 U.S.C.
§ 1581(c) (2012), 5 which grant the court authority to review actions contesting the
final determination in an administrative review of an ADD order. 	The court will
uphold Commerce’s determination 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)(i). “The results of a redetermination pursuant to court remand are
also reviewed ‘for compliance with the court’s remand order.’” 	Xinjiamei Furniture
(Zhangzhou) Co. v. United States, 38 CIT __, __, 968 F. Supp. 2d 1255, 1259 (2014)
(quoting Nakornthai Strip Mill Public Co. v. United States, 32 CIT 1272, 1274, 587
F. Supp. 2d 1303, 1306 (2008)).
DISCUSSION
On remand, Commerce continues to rely on Tata Tea’s financial statements
because Commerce did not find explicit evidence of a subsidy program previously
determined 	to 	be 	countervailable 	in 	the 	financial 	statements, 	or 	in 	the 	loan
documentation 	Xinboda 	submitted. 	See 	Remand 	Results 	at 	6–18. 	Xinboda
challenges Commerce’s stated practice, as well as the sufficiency of the evidence
4 Further citations to the Tariff Act of 1930, as amended, are to the relevant
provisions of Title 19 of the U.S. Code, 2012 edition.
5 Further citations to Title 28 of the U.S. Code are to the 2012 edition.
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supporting Commerce’s conclusion. 	See Xinboda’s Br. at 4–20. 	For the following
reasons, the court sustains Commerce’s determination.
In an NME, Commerce determines normal value based upon the best available
information from a market economy country for the value of FOPs used in producing
merchandise, plus an amount for general expenses and profit. 	See 19 U.S.C.
§§ 1677b(c)(1), (c)(3). 	Relevant legislative history indicates that Commerce should
“avoid using any prices which it has reason to believe or suspect may be dumped or
subsidized prices” when valuing FOPs. See Omnibus Trade and Competitiveness Act
of 1988, Conference Report to Accompany H.R. 3, H.R. Rep. No. 100-576 at 590–91
(1988) (Conf. Rep.), reprinted in 1988 U.S.C.C.A.N. 1547, 1623–24; see also Nation
Ford Chemical v. United States, 166 F.3d 1373, 1378 (Fed. Cir. 1999). Nonetheless,
Commerce is not expected “to conduct a formal investigation to ensure that such
prices are not dumped or subsidized,” but is instead to “base its decision [as to
whether there is ‘reason to believe or suspect’] on information generally available to
it at that time.” H.R. Rep. No. 100-576 at 590–91, 1988 U.S.C.C.A.N. at 1623–24.
In Shenzhen Xinboda I, the court instructed Commerce to state whether its
practice is to rely on the financial statement of a company that is or may be the
beneficiary of subsidies, so long as those subsidies were not previously found
countervailable by Commerce, and explain why such practice is reasonable here,
where there is evidence suggesting Tata Tea’s statements contain subsidized prices.
See id. at 1291. 	In its remand determination Commerce states that its practice is,
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and has been, to rely on the financial statement of a company that is or may be the
beneficiary of subsidies, so long as those subsidies have not previously been found to
be countervailable. See Remand Results at 5–8 (citing e.g., Clearon Corp. v. United
States, 35 CIT 1685, 1688, 800 F. Supp. 2d 1355, 1359 (2011)); Certain Frozen Fish
Fillets from the Socialist Republic of Vietnam, 74 Fed. Reg. 29,473 (Dep’t Commerce
June 22, 2009) (final results of the third new shipper reviews), and accompanying
Issues & Decisions Memo For the Final Results of the 3rd New Shipper Reviews:
Certain Frozen Fish Fillets from the Socialist Republic of Vietnam at 4–5, A-552-801,
(June 15, 2009); Certain New Pneumatic Off-The-Road Tires from the People’s
Republic 	of 	China, 	73 	Fed. 	Reg. 	40,485 	(July 	15, 	2008) 	(final 	affirmative
determination of sales at less-than-fair-value and partial affirmative determination
of critical circumstances), and accompanying Issues & Decision Memo at 37–40, A-
570-912, (July 7, 2008). Since the Final Results at issue here, Congress has codified
Commerce’s practice in 19 U.S.C. § 1677b(c)(5). 6 Commerce explains in its Remand
6 In its remand redetermination, in addition to invoking its practice, Commerce
invokes Section 505 of the Trade Preferences Extension Act of 2015 (“TPEA”), which
added 19 U.S.C. § 1677b(c)(5), claiming it applies to its Remand Results. Commerce
invokes the amendment because the remand redetermination was a determination
made after the effective date of the TPEA, because § 1677b(c)(5) codified the agency’s
prior practice, and, because the court in its opinion cited to § 1677b(c)(5) as being
applicable. 	See Remand Results at 5–11; Shenzhen Xinboda I, 44 CIT at __, 456 F.
Supp. 3d at 1289. Shenzhen Xinboda I did not need to reach the question of whether
the amendment applies to remand determinations decided after the amendment in a
case 	where 	the 	final 	results 	were 	issued 	prior 	to 	the 	amendment, 	as
(footnote continued)
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Results that, pursuant to its practice, Commerce looks to its past countervailing duty
(“CVD”) findings as evidence that a company received a countervailable subsidy. See
Remand Results at 5–6. 	If the financial statements or other documents refer to “a
specific subsidy program found to be countervailable in a formal CVD determination,”
only 	then 	will 	Commerce 	exclude 	the 	company’s 	financial 	statements 	from
consideration. See Remand Results at 8.
Commerce 	explains 	that 	its 	view 	that 	it 	will 	only 	disregard 	financial
statements where there is explicit evidence of a subsidy previously determined to be
countervailable comes from the use of the phrase “reason to believe or suspect” in the
legislative history. 7 Commerce defends the reasonableness of its practice, explaining
the amendment codifies the agency practice. See Jacobi Carbons AB v. United States,
42 CIT __, __, 313 F. Supp. 3d 1308, 1331 & n.32 (2018); Weishan Hongda Aquatic
Food Co. v. United States, 41 CIT __, __, 273 F. Supp. 3d 1279, 1286 & n.7 (2017).
Therefore, the court, sua sponte, reconsiders its decision to cite § 1677b(c)(5), see
Shenzhen Xinboda I, 44 CIT at __, 456 F. Supp. 3d at 1289, and determines that doing
so was unnecessary because Commerce’s practice prior to the amendment was the
same as the standard set forth in § 1677b(c)(5). Accordingly, the court did not need
to reach the issue of whether the statute would apply to a remand determination of
final results issued prior to the amendment. 	See USCIT R. 60 (“The court may
correct. . . a mistake arising from oversight. . . whenever one is found in a judgment,
order, or other part of the record. The court may do so on motion or on its own, with
or without notice.”). Moreover, because the applicable standards before and after the
amendment are the same, the court’s error in citing the statute was a harmless error
and does not affect the court’s prior remand order. See USCIT R. 60 (“At every stage
of the proceeding, the court must disregard all errors and defects that do not affect
any party's substantial rights.”).
7 Commerce explains that financial statements, which are guided by Generally
Accepted Accounting Principles are the best evidence of a company’s receipt (or non-
receipt) of previously determined countervailable subsidies. See Remand Results at
6–7. Accordingly, Commerce examines financial statements for evidence of a subsidy
program that Commerce has previously countervailed. See id. at 7.
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that this phrase is the same “standard for making a preliminary affirmative
determination of countervailable subsidies in a CVD investigation.” Remand Results
at 7 (citing 19 U.S.C. § 1671b(b)(1) which states that “the administering authority
shall make a determination, based upon the information available to it at the time of
the determination, of whether there is a reasonable basis to believe or suspect that a
countervailable subsidy is being provided with respect to the subject merchandise.”).
The 	combination 	of 	the 	particular 	standard 	used 	for 	an 	affirmative 	CVD
determination combined with the admonition that Commerce was not to conduct a
formal investigation leads Commerce to its conclusion that it was to only disregard
statements that had previously been determined as countervailable. 8 	See id.
8 Plaintiff argues that the post-TPEA statutory scheme grants greater discretion to
Commerce than Congress permitted Commerce to exercise before the amendment,
and therefore claims that under the statute in effect at the time of the Final Results,
Commerce 	lacks 	discretion 	to 	require 	explicit 	evidence 	of 	subsidies 	prior 	to
disregarding financial statements. Plaintiffs argue:
Congress initially mandated that Commerce “shall” disregard financial
statements 	tainted 	by 	subsidization, 	but 	subsequently 	broadened
Commerce’s discretion to “may disregard” such financial statements.
[Compare] H.R. Rep. No. 100-576, at 590-91 (1988) (Conf. Rep.) (“In
valuing [the factors of production], Commerce shall avoid using any
prices which it has reason to believe or suspect may be dumped or
subsidized prices’”, [with] 19 U.S.C. § 1677b(c)(5) (“In valuing the factors
of production…, the administering authority may disregard price or cost
values without further investigation if the administering authority has
determined that broadly available export subsidies existed or particular
instances 	of 	subsidization 	occurred.”). 	Since 	the 	contested
administrative review final results were issued prior to the passing of
(footnote continued)
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Commerce’s parsing of these two provisions in the legislative history is logical and
the court cannot say that Commerce acted unreasonably in light of the statutory
provision under which Commerce acted to reach its Final Results.
Commerce 	further 	explains 	that 	its 	practice 	of 	only 	rejecting 	financial
statements 	that 	evidence 	a 	previously 	determined 	countervailed 	subsidy 	is
reasonable because, if Commerce had to reject every financial statement which
mentioned a subsidy—as opposed to only rejecting those with explicit evidence of a
previously determined countervailable subsidy—some circumstances might require
Commerce to resort to less appropriate financial statements, leading to inaccuracies.
TPEA in 2015, Commerce must, as indicated in the word “shall” in the
legislative history, disregard Tata Tea’s financial statement because it
has “reason to believe or suspect” that Tata Tea’s price was a subsidized
price. [See Remand Results] at 13 (admitting that “Tata Tea may have
received subsidies under a previously countervailed program.”).
Xinboda’s Br. at 6. 	Plaintiff’s argument is mistaken. First, Plaintiff compares the
language of the TPEA amendment to the language of the legislative history to
different 	subsections 	of 	§ 	1677b. 	Commerce’s 	discretion 	to 	identify 	the 	best
information available to value factors of production derives from § 1677b(c)(1), (c)(3)
(providing for the calculation of normal value in NMEs generally using FOPs).
Whether Commerce’s interpretation is reasonable is informed by the legislative
history. 	Moreover, 	in 	adopting 	its 	interpretation 	Commerce 	explains 	its
interpretation flows from the language in the legislative history which invokes a
“reason to believe or suspect standard” which Commerce claims requires that there
have been an already determined countervailable subsidy. 	Remand Results at 7.
Commerce then invokes the “may” language in TPEA as a confirmation of the
discretion previously exercised by Commerce. Remand Results at 10.
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See Remand Results at 8–9. 9 Moreover, Commerce explains that if, in the course of
an ADD review, it had to conduct a full investigation of whether a company received
a countervailable subsidy, it would not be able to meet its deadlines. 	See Remand
Results at 7.
As 	requested 	by 	the 	court, 	Commerce 	further 	explains 	its 	practice 	as
reasonable 	in 	this 	case. 	Here, 	Commerce 	re-examined 	Tata 	Tea’s 	financial
statements and determined that the financial statements contain no evidence of a
previously countervailed subsidy program. See Remand Results at 10–11. Commerce
further explains that Xinboda’s proffered loan documentation does not demonstrate
that Tata Tea received a previously determined countervailable subsidy. 	See id. at
14–16; Shenzhen Xinboda I, 44 CIT at __, 456 F. Supp. 3d at 1290–91. 	Rather, in
order to verify whether the loan agreements relate to a countervailable subsidy,
9 Commerce states that:
[I]f the “reason to believe or suspect” standard, and by extension section
773(c)(5) 	of 	the 	Act, 	requires 	Commerce 	to 	reject 	every 	financial
statement that merely mentions the word ‘subsidy,’ or even words that
could 	be 	interpreted 	as 	naming 	a 	recognized 	subsidy 	program,
Commerce would, in many circumstances, have no record financial
statements from which to calculate surrogate financial ratios. This
would likely require Commerce to resort to less desirable financial
statements which may lead to inaccuracies in calculating financial
ratios. In this review, if the “reason to believe or suspect standard” from
the 1988 legislative history were interpreted to require such a practice,
there would be no financial statements on the record from which to
determine surrogate ratios.
Remand Results at 8–9.
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“Commerce would need to conduct a full investigation of these loans.” 	See Remand
Results at 14.
Commerce also confronts evidence that it has previously found certain export
credits and packing credits—the type of financial assistance that is the subject of the
loan or hypothecation agreements—to be countervailable. See Remand Results at 15
(citing Polyethylene Terephthalate Film, Sheet, and Strip (“PET Film”) from India,
73 Fed. Reg. 75,672 (December 12, 2008) (final results of [CVD] admin. rev.), and
accompanying Issues & Decision Memo in the Final Results of the [CVD] Admin. Rev.
of [PET] Film from India at 4–11, C-533-825, (Dec. 5, 2008) (“PET Film from India”);
Certain Hot-Rolled Carbon Steel Flat Products from India, 74 Fed. Reg. 20,923 (May
6, 2009) (final results and partial rescission of [CVD] admin. rev.), and accompanying
Issues & Decision Memo: Final Results and Partial Rescission of [CVD] Admin. Rev.
at Cmt. 4, C-533-821, (Apr. 29, 2009) (“Hot-Rolled Carbon Steel from India”)).
Nonetheless, Commerce explains that export and packing credits are not always
countervailable as they are considered a type of short-term credit. 	See Remand
Results 	at 	15–16. 10 	In 	this 	case, 	Commerce 	distinguishes 	the 	hypothecation
agreements invoked by Xinboda from the Government of India’s Pre- and Post-
Shipment Program, previously found to be countervailable by Commerce. 	See
10 	Moreover, 	Commerce 	explains, 	not 	only 	are 	export 	credits 	not 	always
countervailable, but also, here, it is unclear whether Tata Tea was merely eligible for
the export credits, or whether it actually received them. 	See Remand Results at 8,
14–16.
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Remand Results at 16–18. The loan or hypothecation agreements provide collateral
for the packing and export credits and there is no evidence that they relate to a
program Commerce has previously found to be countervailable. 11
Xinboda argues that although the record may lack evidence that the programs
involved were previously countervailed, there is sufficient evidence to meet the
“reason to believe or suspect standard.” 	Xinboda Br. at 11. 	Yet, Xinboda does not
point to any evidence that Commerce’s application of its practice in this instance is
unreasonable. 	Commerce addresses the record evidence that the programs are
countervailable finding that evidence inconclusive. Specifically, Commerce addresses
the court’s concern that at least one of the loans was provided at below market rate,
11 Xinboda argues that the hypothecation agreements specifically reference “pre-
shipment and post-shipment credits[,]” 	Xinboda’s Br. at 15, and asserts that “it is
simply untenable for Commerce to argue that these loan agreements . . . do not relate
to the Pre- and Post-Shipment program previously found to be countervailable.” See
id. at 17. Despite Xinboda’s protestations, Commerce’s position is not unreasonable.
There may be various types of pre- and post-shipment credits that are distinct from
the specific Pre- and Post-Shipment Program Commerce has previously determined
to be countervailable. The hypothecation agreements quoted by Xinboda do not
specifically refer to the Government of India’s Pre- and Post-Shipment Program;
rather they state
[I]n consideration of the Bank having granted . . . by way of overdrafts,
cash 	credits, 	term 	loans, 	pre-shipment 	and 	post-shipment 	credits,
opening of letters of credits, issuing of guarantees including deferred
payment guarantees and indemnities, negotiations and discounting of
demand and or usance bills and cheques inland as well as foreign and
such other facilities as may be agreed[.]
Xinboda’s Br. at 15 (citing Xinboda Surrogate Value Submission – Final at Ex. 33,
PD 149-151, 155, (Jan. 6, 2012)). 	Commerce is within its discretion to find such
language insufficient to establish that a previously determined countervailable
subsidy was at issue in Tata Tea’s financial statements.
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Court No. 12-00174 	Page 16
see Shenzhen Xinboda I, 44 CIT at __, 456 F. Supp. 3d at 1290, explaining that on
the record provided the provision of loans at below market rate cannot actually be
verified. 	See Remand Results at 17. 	Although, Xinboda can point to evidence that
might 	support 	an 	alternative 	conclusion, 	the 	court 	must 	sustain 	Commerce’s
determination if the record reasonably supports it. 	See King Supply Co., LLC v.
United States, 674 F.3d 1343, 1348 (Fed. Cir. 2012) (“King Supply Co.”) (noting that
“even if it is possible to draw two inconsistent conclusions from evidence in the record,
such a possibility does not prevent Commerce's determination from being supported
by substantial evidence.” (citations omitted)).
Conversely, Xinboda continues to argue that Garlico is the “most suitable”
Indian company to rely on as a surrogate for Xinboda. 	See Xinboda’s Br. at 20–25.
Even 	if 	Xinboda 	can 	identify 	financial 	statements 	that 	would 	be 	reasonable
alternatives for Commerce to select, it is not this court’s role to identify the most
suitable choice. See King Supply Co., 674 F.3d at 1348 (Fed. Cir. 2012). This court
is tasked with determining whether Commerce’s choice was reasonable. Xinboda has
not identified any evidence that undermines the reasonableness of Commerce’s
choice. 	In sum, Commerce’s continued reliance on Tata Tea’s financial statement
based on its practice to only exclude relevant financial statements from consideration
where such statements have evidence of previously determined countervailable
subsidies is reasonable.
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Court No. 12-00174 	Page 17
Xinboda 	also 	argues 	that 	if 	Commerce 	may 	use 	Tata 	Tea’s 	financial
statements, then it should also use other statements it chose to disregard. 	See
Xinboda’s Br. at 17. Yet, Commerce specifically found that some of these statements
did contain previously countervailed subsidies. See Final Decision Memo at 43–45 &
n.198. 	Xinboda challenges the reasonableness of those determinations given the
evidence at issue. 	See Xinboda’s Br. at 18–19. 	In doing so, Xinboda is asking this
court to reweigh the evidence which this court cannot do. 	See Downhole Pipe &
Equipment, L.P. v. United States, 776 F.3d 1369, 1376–77 (Fed. Cir. 2015).
CONCLUSION
For the foregoing reasons, Commerce’s Remand Results are supported by
substantial evidence and comply with the court’s order in Shenzhen Xinboda I, and
are therefore sustained. Judgment will enter accordingly.
/s/ Claire R. Kelly
Claire R. Kelly, Judge
Dated: 	February 8, 2021
New York, New York
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