                                      Slip Op. 19-103

                 UNITED STATES COURT OF INTERNATIONAL TRADE


 ARCHER DANIELS MIDLAND
 COMPANY, CARGILL,
 INCORPORATED, AND TATE & LYLE
 AMERICAS LLC,

                     Plaintiffs,                Before: Mark A. Barnett, Judge
                                                Court No. 18-00160
            v.

 UNITED STATES,

                     Defendant.


                                         OPINION

[Sustaining the U.S. Department of Commerce’s final negative determination.]

                                                                Dated: August 2, 2019

Patrick J. Togni and Stephen A. Jones, King & Spalding LLP, of Washington, DC, for
Plaintiffs.

Meen Geu Oh, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, for Defendant. With him on the brief were
Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, and
Reginald T. Blades, Jr., Assistant Director. Of counsel on the brief was Mykhaylo A.
Gryzlov, Senior Counsel, Office of the Chief Counsel for Trade Enforcement and
Compliance, U.S. Department of Commerce, of Washington, DC.

       Barnett, Judge: Plaintiffs, Archer Daniels Midland Company, Cargill,

Incorporated, and Tate & Lyle Americas LLC (collectively, “Archer Daniels”) move,

pursuant to U.S. Court of International Trade Rule 56.2, for judgment on the agency

record, challenging the U.S. Department of Commerce’s (“Commerce” or “the agency”)

final negative determination in the countervailing duty (“CVD”) investigation of citric acid

and certain citrate salts from Thailand. See Mot. for J. on the Agency R., ECF No. 19;
Court No. 18-00160                                                                    Page 2


Citric Acid and Certain Citrate Salts From Thailand, 83 Fed. Reg. 26,004 (Dep’t

Commerce June 5, 2018) (final negative countervailing duty determination, and final

negative critical circumstances determination) (“Final Determination”), ECF No. 15-1,

and accompanying Issues and Decision Mem., C-549-834 (May 29, 2018) (“I&D

Mem.”), ECF No. 15-2. 1

       Archer Daniels’ dispute stems from the importation of select equipment and

machinery (“the machinery”) from the People’s Republic of China (“China”) into Thailand

by COFCO Biochemical (Thailand) Co., Ltd. (“COFCO”); Niran (Thailand) Co., Ltd.

(“Niran”); and Sunshine Biotech International Co., Ltd. (“Sunshine”) (collectively,

“Respondents”). Respondents imported the machinery duty-free pursuant to Section 28

of Thailand’s Investment Promotion Act (“IPA Section 28”), a subsidy program

exempting certain imported machinery from payment of import duties when used in

specified projects. See I&D Mem. at 8-12. Commerce determined, however, that duty-

free importation of the machinery from China pursuant to IPA Section 28 conferred no

benefit because, absent IPA Section 28 eligibility, the duty rate on the machinery

imports would have been zero pursuant to the “ASEAN-China FTA.” 2 I&D Mem. at 11,

18.



1 The administrative record for this case is divided into a Public Administrative Record
(“PR”), ECF No. 15-3, and a Confidential Administrative Record (“CR”), ECF No. 15-4.
Parties submitted joint appendices containing record documents cited in their briefs.
See Public J.A. (“PJA”), ECF No. 28; Confidential J.A. (“CJA”), ECF No. 27. The court
references the confidential versions of the relevant record documents, unless otherwise
specified.
2 “ASEAN-China FTA” stands for “Association of Southeast Asian Nations (ASEAN)-

China Free Trade Area (FTA).” I&D Mem. at 2.
     Court No. 18-00160                                                                   Page 3


            Archer Daniels contends that Commerce’s determination is unsupported by

     substantial evidence and is otherwise not in accordance with law because the record

     shows that Respondents did not import the machinery pursuant to the ASEAN-China

     FTA and could not have complied with its requirements. See Pls.’ Rule 56.2 Br. in

     Supp. of Mot. for J. on the Agency R. (“Pls.’ Br.”) at 1-2, ECF No. 31. Defendant, United

     States (“the Government”), contends that Commerce’s determination is supported by

     substantial evidence and is otherwise in accordance with law because the record is

     “replete” with documents demonstrating that Respondents’ machinery “originated from

     China.” See Def.’s Corrected Resp. to Pls.’ Rule 56.2 Mot. for J. Upon the Agency R.

     (“Def.’s Resp.”) at 5, ECF No. 34. For the reasons discussed herein, Archer Daniels’

     motion is denied.

                                            BACKGROUND

I.          Legal Framework

            In order to offset the unfair competitive advantages created by foreign subsidies,

     “Commerce is required to impose countervailing duties on merchandise that is produced

     with the benefit of government subsidies” when it causes material injury to a domestic

     industry. Fine Furniture (Shanghai) Ltd. v. United States, 748 F.3d 1365, 1369 (Fed.

     Cir. 2014); see also Zenith Radio Corp. v. United States, 437 U.S. 443, 455-56 (1978)

     (discussing the purpose of CVD law); 19 U.S.C. § 1671(a). “Such a subsidy exists

     when (1) a foreign government provides a financial contribution (2) to a specific industry

     and (3) a recipient within the industry receives a benefit as a result of that contribution.”

     Fine Furniture (Shanghai), 748 F.3d at 1369 (citing 19 U.S.C. § 1677(5)(B)). In other
  Court No. 18-00160                                                                    Page 4


  words, to constitute a countervailable subsidy, a foreign government must provide “a

  specific financial contribution to a party and that party [must] benefit[] from the

  contribution.” Essar Steel Ltd. v. United States, 678 F.3d 1268, 1272 (Fed. Cir. 2012)

  (citing 19 U.S.C. § 1677(5)).

         A party benefits from the contribution when “taxes or import charges paid by a

  firm as a result of the program are less than the taxes the firm would have paid in the

  absence of the program.” 19 C.F.R. § 351.510(a)(1). Thus, in order to measure the

  value of the financial contribution, Commerce must calculate the taxes the firm would

  have paid absent the countervailable program. See Royal Thai Gov’t v. United States,

  32 CIT 97, 100, 534 F. Supp. 2d 1373, 1377 (2008) (“Royal Thai V”), aff’d sub nom.

  Royal Thai Gov’t v. U.S. Steel Corp., 312 F. App’x 342 (Fed. Cir. 2009). In furtherance

  of this inquiry, “Commerce must establish a benefit calculation benchmark, or more

  precisely, determine what tariff rate would have applied absent the alleged subsidy.

  Once this benchmark is established, Commerce will have a reference point from which

  it can determine the amount of benefit that has been conferred.” Id. It is Commerce’s

  selection of a benchmark that is at issue here.

II.      Factual and Procedural History

         On June 22, 2017, Commerce initiated a countervailing duty investigation into

  citric acid and certain citric salts from Thailand. See Citric Acid and Certain Citrate

  Salts From Thailand, 82 Fed. Reg. 29,836 (Dep’t Commerce June 30, 2017) (initiation

  of countervailing duty investigation). The period of investigation was January 1, 2016,

  through December 31, 2016. Id. at 29,837.
Court No. 18-00160                                                               Page 5


      Commerce selected COFCO, Niran, and Sunshine as mandatory respondents in

the investigation and issued them questionnaires. Selection of Respondents for the

Countervailing Duty Investigation on Citric Acid and Certain Citrate Salts from Thailand

(July 21, 2017) at 1, CR 11, PR 38, CJA Tab 3, PJA Tab 3; I&D Mem. at 2-3.

Commerce also issued a questionnaire to the Royal Thai Government (“the RTG”). I&D

Mem. at 2. Respondents reported receiving zero benefit for duty-exemptions applied to

the machinery because, absent IPA Section 28 eligibility, the machinery would have

been eligible for duty-free treatment pursuant to the ASEAN-China FTA. See Royal

Thai Gov’t, CVD Questionnaire Resp. (Sept. 8, 2017) (“RTG QR”) at 10, CR 55, PR 90,

CJA Tab 7, PJA Tab 7; Sunshine Biotech Int’l Co., Ltd. CVD Questionnaire Resp. (Sept.

8, 2017) (“Sunshine QR”) at 9, CR 15, PR 81, CJA Tab 4, PJA Tab 4; Initial

Questionnaire Resp. (Sept. 8, 2017) (“COFCO QR”) at 9, CR 44, PR 88, CJA Tab 5,

PJA Tab 5; Initial Questionnaire Resp. (Sept. 8, 2017) (“Niran QR”) at 10, CR 49, PR

89, CJA Tab 6, PJA Tab 6.

      The ASEAN-China FTA is a free trade agreement among the ten nations of the

Association of Southeast Asian Nations and China that establishes a free trade area

between its members. See Pet’rs’ Rebuttal Factual Information Submission Regarding

the 9/8/17 Initial Questionnaire Resps. (Sept. 22, 2017) (“Archer Daniels’ Rebuttal

Submission”) Ex. 1 at 275, CR 102, PR 131, CJA Tab 8, PJA Tab 8 (listing the ASEAN-

China FTA member states). This multilateral trade agreement, among other things,

exempts equipment and machinery imported into Thailand from China from ordinary

Thai import duties. I&D Memo. at 18; see also RTG QR at 10. The ASEAN-China FTA
Court No. 18-00160                                                                 Page 6


contains rules of origin that prescribe varying requirements depending on the type of

good. See Archer Daniels’ Rebuttal Submission, Ex. 1 at 261-272. Thai companies

may claim ASEAN-China FTA treatment by producing a certificate of origin issued

pursuant to the ASEAN-China FTA, which demonstrates that the goods originated in a

member country (i.e., China). See id., Ex. 1 at 265, 267-69. However, the issuance of

a certificate of origin does not necessarily confer ASEAN-China FTA preferential tariff

treatment on those imports, which remain subject to verification procedures

implemented by the importing member. See id., Ex. 1 at 270-272 (ASEAN-China FTA

Rules 16, 19 and 21).

       On November 3, 2017, Commerce preliminarily determined that certain Thai

producers of citric acid were not receiving countervailable subsidies. See Citric Acid

and Certain Citrate Salts From Thailand, 82 Fed. Reg. 51,216 (Dep’t of Commerce Nov.

3, 2017) (prelim. negative countervailing duty determination, prelim. negative critical

circumstances determination and alignment of final determination with final antidumping

duty determination); Decision Mem. for the Prelim. Negative Countervailing Duty

Determination, Prelim. Negative Critical Circumstances Determination and Alignment of

Final Determination with Final Antidumping Duty Determination (Oct. 30, 2017) (“Prelim.

Mem.”) at 1, PR 172, CJA Tab 10, PJA Tab 10. While Commerce found that IPA

Section 28’s duty exemptions, as applied to Respondents’ imported Chinese machinery,

“constitute[d] a financial contribution in the form of revenue foregone,” Commerce

further found that “such duty-free imports [did] not confer a benefit” because the duty

rates on the machinery “would have been zero” absent Respondents’ participation in the
Court No. 18-00160                                                                Page 7


IPA Section 28 program. Prelim. Mem. at 11. Commerce based its finding on evidence

indicating that the machinery would have alternatively qualified for duty-free treatment

pursuant to the ASEAN-China FTA. Id. Although Commerce countervailed other IPA

Section 28 duty-exemptions conferred upon Respondents’ non-ASEAN-China FTA

eligible machinery and equipment, Respondents’ preliminary subsidy rates were de

minimis. See id. at 11, 13.

      In November and December of 2017, Commerce conducted verification of

Respondents’ questionnaire responses. See Verification of the Questionnaire Resps. of

Sunshine Biotech Int’l Co., Ltd. (Jan. 19. 2018) at 1, CR 202, PR 228, CJA Tab 17, PJA

Tab 17 (“Sunshine Verification Report”); Verification of the Questionnaire Resps. Of

Niran (Thailand) Co., Ltd. (Jan. 18. 2018) at 1, CR 201, PR 227, CJA Tab 16, PJA Tab

16 (“Niran Verification Report”); Verification of the Questionnaire Resps. of COFCO

Biochemical (Thailand) Co., Ltd. (Jan. 18. 2018) at 1, CR 200, PR 226, CJA Tab 15,

PJA Tab 15 (“COFCO Verification Report”). Commerce found no evidence during

verification to undermine its preliminary determination to use the ASEAN-China FTA

tariff rate as the benchmark for determining the benefit conferred by the IPA Section

28’s duty-free treatment of Respondents’ machinery imported from China. See I&D

Mem. at 18 & n.89; Sunshine Verification Report at 6; Niran Verification Report at 7-8;

COFCO Verification Report at 7-8.

      On June 5, 2018, Commerce published its final determination. Final

Determination, 83 Fed. Reg. at 26,004. Commerce’s determination remained
Court No. 18-00160                                                              Page 8


unchanged with respect to the agency’s use of the ASEAN-China FTA as the

benchmark tariff rate. See I&D Mem. at 18. Commerce explained:

       [Respondents] have demonstrated, by means of import documentation
       verified by Commerce, that the imports in question were, in fact, Chinese
       origin and that, accordingly, the duty payable on the machinery and
       equipment in question would have been zero absent eligibility under
       Section 28 IPA program. Thus, based on the record, as verified, we find
       that had [Respondents] entered the machinery and equipment in question
       under the ASEAN-China FTA and submitted the requisite forms to
       demonstrate Chinese origin under that arrangement instead of under the
       Section 28 IPA program, the duty rates applied would have been zero.
       Accordingly, the amount of duty paid pursuant to the Section 28 IPA
       program and the amount of duty [R]espondents would have paid on the
       Chinese-origin machinery and equipment absent the Section 28 IPA
       program are the same. Thus, there is no countervailable benefit for this
       program for the imports of Chinese-origin and machinery.

Id. (footnotes omitted); see also id. at 18 n.89 (discussing verification).

       Commerce rejected Archer Daniels’ argument that Respondents would not have

qualified for preferential tariff treatment pursuant to the ASEAN-China FTA “because

they failed to submit an application under that program,” concluding that the argument

lacked legal authority. Id. at 18. Commerce reasoned that submitting an application

would have required Respondents “to enter the same Chinese-origin goods under both

the ASEAN-China FTA and the Section 28 IPA program for Commerce to determine

whether a benefit existed under the program,” and there was “no support for [that]

approach in [Commerce’s] regulations or practice.” Id. Because Respondents

continued to receive only nominal benefits for their respective non-ASEAN China FTA

eligible imports, Commerce calculated zero or de minimis final countervailable subsidy

rates for each respondent. Final Determination, 83 Fed. Reg. at 26,006; I&D Mem. at
Court No. 18-00160                                                                   Page 9


12. 3 Accordingly, Commerce issued a negative final determination and terminated the

investigation. See Final Determination, 83 Fed. Reg. at 26,005-06. On July 5, 2018,

Archer Daniels timely commenced this action. See Summons, ECF No. 1. Plaintiff

moved for oral argument and the court, after reviewing the Parties briefs filed pursuant

to USCIT Rule 56.2, denied the request for oral argument as unnecessary.

                          JURISDICTION AND STANDARD OF REVIEW

       The court has jurisdiction pursuant to § 516A(a)(2)(B)(ii) of the Tariff Act of 1930,

as amended, 19 U.S.C. § 1516a(a)(2)(B)(ii) (2012), 4 and 28 U.S.C. § 1581(c). 5 The

court will uphold an agency determination that is supported by substantial evidence and

otherwise in accordance with law. 19 U.S.C. § 1516a(b)(1)(B)(i). “Substantial evidence

is ‘such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.’” Huaiyin Foreign Trade Corp. (30) v. United States, 322 F.3d 1369, 1374

(Fed. Cir. 2003) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).



3 COFCO and Niran received final countervailable subsidy rates of zero percent, and
Sunshine received a de minimis final countervailable subsidy rate of 0.21 percent. Final
Determination, 83 Fed. Reg. at 26,006; I&D Mem. at 12.
4 All further citations to the Tariff Act of 1930, as amended, are to Title 19 of the U.S.

Code, 2012 edition, and all references to the United States Code are to the 2012
edition, unless otherwise stated.
5 To establish standing under Article III of the U.S. Constitution, a plaintiff must show,

inter alia, that its injury “is likely to be redressed by a favorable decision.” Hollingsworth
v. Perry, 570 U.S. 693, 704 (2013) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555,
560–561 (1992)). Archer Daniels’ complaint minimally addresses redressability. While
Archer Daniels’ requests a “remand . . . for reconsideration consistent with the [c]ourt’s
opinion,” Compl. ¶ 18, ECF No. 11, in its briefs, Archer Daniels avers that Commerce’s
use of a benchmark other than the ASEAN-China FTA would result in an above-de
minimis subsidy rate and the issuance of a CVD order. See Pls.’ Br. at 10; Confidential
Pls.’ Reply Br. (“Pls.’ Reply”), at 3-4, ECF No. 26. In the future, it would be more
appropriate to include such jurisdictional allegations in the complaint.
     Court No. 18-00160                                                                  Page 10


                                             DISCUSSION

I.      Parties’ Contentions

            Archer Daniels argues that “the record does not support Commerce’s claim that

     the reported entries would have alternatively qualified for the zero-rate tariff under the

     ASEAN-China FTA at the time of entry.” Pls.’ Br. at 19 (internal quotation marks

     omitted). Pointing to the procedural requirements underlying the issuance of the

     certificate of origin pursuant to the ASEAN-China FTA, Archer Daniels argues that there

     “is no evidence on the record indicating that any of Respondents’ imports complied with

     these requirements.” Id. at 14. Without this evidence, Archer Daniels contends,

     Commerce could not reasonably determine that the machinery would have been eligible

     for preferential ASEAN-China FTA treatment. Id. at 14; see also id. at 23-24.

            The Government contends that substantial record evidence—including

     submissions by all Respondents that “provided a detailed, itemized listing of all

     equipment originating from China along with the duty rates they would have received on

     the items even absent the IPA Section 28 Program” and statements from the RTG and

     Respondents that the machinery was of Chinese origin—supports Commerce’s

     determination. See Def.’s Resp. at 7. The Government also contends that evidence

     adduced at verification further supports the agency’s determination. Id. at 11-12

     (explaining that Commerce “spot-checked the information at verification, examined the

     pre-selected observations and additional observations randomly selected on site, and

     confirmed its determinations”). According to the Government, Archer Daniels has failed

     “to identify a single document that suggests that the country of origin might differ from
  Court No. 18-00160                                                              Page 11


  what the weight of record documents show,” i.e., China. Id. at 8. Additionally, the

  Government contends, Archer Daniels’ “position makes no sense” because it infers that

  “[R]espondents (for no practical reason) should have taken the added step of meeting

  every procedural element for origination outlined in the ASEAN-China FTA even though

  they agree that respondents had no obligation or reason to specifically apply for the

  program.” Id. at 10. 6

II.   Commerce’s Determination is Sustained

         The parties dispute whether it was reasonable for Commerce to select the

  ASEAN-China FTA duty-free rate as the benchmark against which to measure whether

  Respondents received a countervailable benefit for imports of machinery through the

  IPA Section 28 program. Archer Daniels argues that the ASEAN-China FTA is an

  inappropriate benchmark because the record does not indicate that Respondents

  complied with—or could have complied with—the trade agreement’s requirements. See

  Pls.’ Br. at 2, 13-17. Archer Daniels’ arguments lack merit.

         As Commerce explained, there is no support in its regulations or practice for

  requiring evidence of parallel compliance with ASEAN-China FTA procedural

  requirements as part of its identification of a suitable benchmark, I&D Mem. at 18, and



  6 The Government cites to Commerce’s determination in a separate proceeding to
  support this assertion. Def.’s Resp. at 10 (citing, inter alia, Issues and Decision Mem.
  for the Final Results in the Countervailing Duty Admin. Review of Certain New
  Pneumatic Off-the-Road Tires from the People’s Republic of China; 2014 (“Pneumatic
  Tires Mem.”) at 20); see also Letter from Patrick J. Togni, King & Spalding LLP, to the
  Court (July 26, 2019), ECF No. 38 (copy of Pneumatic Tires Mem.). That reference is
  not persuasive because it merely contains conclusions concerning the uncontested
  applicability of the ASEAN-China FTA. See Pneumatic Tires Mem. at 20.
Court No. 18-00160                                                                Page 12


Archer Daniels does not point to any. 7 The record reflects that Commerce reviewed

import documentation in order to assess the applicability of the ASEAN-China FTA.

Commerce is afforded latitude in determining whether the requirements of

countervailability have been met. Cf. Royal Thai Gov’t v. United States, 436 F.3d 1330,

1336 (Fed. Cir. 2006) (Commerce reasonably declined to engage in a transaction-by-

transaction review of an allegedly countervailable loan program because the agency

reasonably determined that the collection of the “necessary information to engage in the

extensive calculations contemplated by [the petitioner] was impracticable”). While

Archer Daniels is correct that the country of export may not be determinative of the

country of origin, Pls.’ Br. at 23, Archer Daniels has not identified any record evidence

demonstrating that Commerce’s assumption, based on its review of record evidence

and additional documentation at verification, was unreasonable. Commerce’s finding is

supported by substantial evidence of the machinery’s Chinese origin and Archer Daniels

has failed to identify evidence that fairly detracts from that conclusion. See I&D Mem. at

18 & n.89 (citations omitted). 8



7 For this reason, Archer Daniels’ argument that Commerce failed to consider the
degree to which each piece of machinery imported by Respondents individually
complied with the ASEAN-China FTA requirements is unpersuasive. See Pls.’ Br. at 16;
Pls.’ Reply at 9 (contending that duty-free treatment pursuant to the ASEAN-China FTA
is not automatic, and that every article must qualify in its own right).
8 Archer Daniels avers that Commerce’s determination is undermined by Niran’s

verification outline, which stated that, “[f]or purchases of machinery that Niran reported
duty free under non-[Thai Board of Investment (“BOI”)] related exemptions (such as the
ASEAN-China Agreement) or on imports of machinery that Niran reported it did not
receive an exemption, be prepared to demonstrate the accuracy of this information with
supporting documentation.” Pls.’ Reply at 13-14 (quoting Niran Verification Report at 8)
(asserting that the record lacks the requested evidence). However, at issue here are
Court No. 18-00160                                                                Page 13


       The case law upon which Archer Daniels relies is unpersuasive. Archer Daniels

argues that several decisions of this court confirm that origin statements on customs

documentation does not confer country of origin for purposes of free trade agreements,

including the ASEAN-China FTA. See Pl’s Br. at 17-20. Archer Daniels cites three

cases in support of this proposition, each of which is inapposite. See id. (citing Polly

U.S.A., Inc. v. United States, 33 CIT 1051, 637 F. Supp. 2d 1226 (2009); United States

v. Univar USA Inc., 42 CIT ___, 355 F. Supp. 3d 1225 (2018); Int’l Fid. Ins. Co. v.

United States, 41 CIT ___, ___, 227 F. Supp. 3d 1353, 1354 (2017)).

       Two of the three cases concern the domestic enforcement of free trade

agreements codified by Congress implicating statutory origin verification obligations.

See Polly, 33 CIT at 1053-54, 637 F. Supp. 2d at 1229; Int’l Fid., 227 F. Supp. 3d at

1371-72. Polly and International Fidelity concern the domestic statutory and regulatory

requirements necessary to establish the country of origin when foreign merchandise

enters the United States and the importer claims preferential duty treatment pursuant to

the North American Free Trade Agreement or the African Growth and Opportunity Act.

See Polly, 33 CIT at 1053-54, 637 F. Supp. 2d at 1229; Int’l Fid., 227 F. Supp. 3d at

1371-72. Here, there are no statutory or regulatory mandates that require Commerce to

adopt a specific methodology when evaluating a foreign free trade agreement for




Respondents’ machinery imports reported duty free pursuant to BOI-related (i.e., IPA
Section 28) exemptions, not non-BOI related exemptions. While Respondents reported
ASEAN-China FTA eligibility, see Sunshine QR at 9; COFCO QR at 9; Niran QR at 10,
Respondents did not report duty-free treatment under the ASEAN-China FTA. Thus,
Archer Daniels’ argument is unpersuasive.
Court No. 18-00160                                                                      Page 14


purposes of identifying a benchmark tariff rate. Univar, a case involving the collection of

allegedly unpaid duties and penalties pursuant to 19 U.S.C. § 1592, is further afield.

There, the court confined its discussion of certificates of origin to its analysis of

corresponding evidentiary disputes in the context of the underlying transshipment

allegation. See Univar, 355 F. Supp. 3d at 1262-63.

       Archer Daniels also relies on Royal Thai V to support the proposition that

Commerce does not engage in speculation when selecting a benchmark. Pls.’ Br. at

20-21 (citing Royal Thai V, 32 CIT at 97, 534 F. Supp. 2d at 1373). Royal Thai V

affirmed Commerce’s decision declining to find “countervailability because it lacked

information regarding applicable alternative tariff rates.” Royal Thai V, 32 CIT at 101-

02, 534 F. Supp. 2d at 1378-79. Here, however, Commerce relied on record

evidence—not speculation—to support its selection of the ASEAN-China FTA. See I&D

Mem. at 18-19 (reviewing unrebutted record evidence concerning Chinese origin and

determining that the machinery would have otherwise qualified for duty-free treatment

pursuant to the ASEAN-China FTA).

       Lastly, Archer Daniels relies on Government of Sri Lanka v. United States, 42

CIT ___, 308 F. Supp. 3d 1373 (2018), to support the proposition that Respondents’

duty-exemptions are countervailable because Commerce failed to adduce evidence that

the ASEAN-China FTA “nullified” any alleged benefit Respondents received from the

IPA Section 28 Program. Pls.’ Reply at 14-15. Archer Daniels misapplies Government

of Sri Lanka, which concerns the partial nullification of a countervailable benefit by the

imposition of a one-time “Super Gains Tax,” and does not otherwise address
Court No. 18-00160                                                               Page 15


Commerce’s selection of Sri Lanka’s standard corporate income tax rate as the

benchmark income tax rate. See Gov’t of Sri Lanka, 308 F. Supp. 3d at 1377-79. 9

       In sum, Archer Daniels would have Commerce base a countervailing duty order

on nothing more than Respondents’ failure to comply with paperwork requirements

necessary to qualify for a duty-free treatment program that would have permitted them

to import the machinery at the same duty-free rate as the program in question. Archer

Daniels has failed to identify any legal authority or record evidence suggesting that

Commerce’s refusal was unreasonable. Commerce’s decision to use the ASEAN-China

FTA tariff rate as the benchmark tariff rate is supported by substantial evidence and is

otherwise in accordance with law.




9 Archer Daniels argues that Commerce’s benefit calculation is “inconsistent with the
CVD Preamble” and the agency’s finding that IPA Section 28 duty exemptions are
contingent on export performance. Pls.’ Br. at 22 (citing Countervailing Duties, 63 Fed.
Reg. 65,348 (Nov. 25, 1998) (final rule)); see also I&D Mem. at 11 (concluding that IPA
Section 28 duty exemptions were “specific” when conditioned on export performance).
Archer Daniels suggests that Commerce found some portion of Respondents’ benefits
“related solely to ‘non-export-related criteria’” and did not include the program in its
benefit calculation for that reason. Pls.’ Br. at 22-23. Archer Daniels offers no support
for this assertion. The export contingency of the program is relevant to specificity rather
than benefit. I&D Mem. at 11. Commerce excluded IPA Section 28-related duty
exemptions respecting Respondents’ machinery from its benefit calculations because
the alternative tariff rate pursuant to the ASEAN-China FTA would have been zero. I&D
Mem. at 18-19.
Court No. 18-00160                                                          Page 16


                                        CONCLUSION

      For the foregoing reasons, the court sustains Commerce’s Final Determination.

Archer Daniels’ motion for judgment on the agency record is denied. Judgment will be

entered accordingly.



                                              /s/   Mark A. Barnett
                                              Mark A. Barnett, Judge

Dated: August 2, 2019
      New York, New York
