Slip Op. 13

UNITED STATES COURT OF INTERNATIONAL TRADE 

OPINION AND ORDER 

[The court remands the Department of Commerce’s final results of an administrative review of 

an antidumping duty order on preserved mushrooms from the People’s Republic of China.] 

Dated: November 14, 2013 

Ronald M. Wisla and Lizbeth R. Levinson, Kutak Rock LLP, of Washington, DC, for 

plaintiff.

Melissa M. Devine, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. 

Department of Justice, of Washington, DC, for defendant. With her on the brief were Stuart F. 

Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. 

McCarthy, Assistant Director. Of counsel on the brief was Devin S. Sikes, Office of the Chief 

Counsel for Import Administration, U.S. Department of Commerce, of Washington, DC. 

Michael J. Coursey and John M. Herrmann, Kelley Drye & Warren LLP, of Washington, 

DC, for defendant-intervenor. 

BLUE FIELD (SICHUAN) FOOD 

INDUSTRIAL CO., LTD., 

Plaintiff, 

v. 

UNITED STATES, 

Defendant,

and 

MONTEREY MUSHROOMS, INC.,

Defendant-Intervenor.

Before: Richard W. Goldberg, Senior Judge 

Court No. 12-00320 

PUBLIC VERSION 
Court No. 12-00320 Page 2 

Goldberg, Senior Judge: Plaintiff Blue Field (Sichuan) Food Industrial Co., Ltd. (“Blue 

Field”) contests a final determination of the Department of Commerce (“Commerce”) in the 

twelfth periodic administrative review of an antidumping duty order on preserved mushrooms 

from the People’s Republic of China. Compl. ¶ 1, ECF No. 5; Certain Preserved Mushrooms 

from the People’s Republic of China, 77 Fed. Reg. 55,808 (Dep’t Commerce Sept. 11, 2012) 

(final admin. review) (“Final Results”). In the review, Commerce assigned Blue Field a 308.33% 

dumping margin, increased from 2.17% in the eleventh review. Final Results at 55,809; see also 

Certain Preserved Mushrooms from the People’s Republic of China, 76 Fed. Reg. 70,112, 

70,113 (Dep’t Commerce Nov. 10, 2011) (amended final admin. review). 

In this appeal, Blue Field claims Commerce failed to ground its dumping margin in 

substantial evidence. More specifically, Blue Field argues Commerce selected aberrational 

surrogate values for rice straw and cow manure, two inputs in Blue Field’s mushroom 

cultivation. The court is asked to remand the action to Commerce to reconsider the contested 

surrogate values and recalculate the dumping margin. Compl. 5. 

The facts of the case are dense and technical. To guide the reader through the 

administrative jungle, the court divides its analysis into four parts. In Part I, the court explains 

Commerce’s antidumping review procedures for products from nonmarket economies. The court 

also lists key events that occurred during the twelfth administrative review and summarizes 

relevant record data. In Part II, the court decides whether Blue Field exhausted its administrative 

remedies respecting a number of arguments made on appeal. In Part III, the court determines 

whether Commerce grounded its surrogate values for rice straw and cow manure in substantial 
Court No. 12-00320 Page 3 

evidence. The court provides remand orders in Part IV. Section 201 of the Customs Courts Act 

of 1980, 28 U.S.C. § 1581(c) (2006),1

 gives the court jurisdiction to hear the case. 

I. BACKGROUND

Blue Field exports preserved mushrooms of the species Agaricus bisporus and Agaricus

bitorquis, known otherwise as common table mushrooms. Final Results, 77 Fed. Reg. at 55,809. 

Since 1999, an antidumping order has covered these wares whether imported whole, sliced, 

diced, or as stems and pieces. Certain Preserved Mushrooms from the People’s Republic of 

China, 64 Fed. Reg. 8308 (Dep’t Commerce Feb. 19, 1999) (antidumping duty order). This case 

concerns an administrative review Commerce conducted for subject merchandise exported 

between February 1, 2010 and January 31, 2011 (the “period of review”). See Final Results, 77 

Fed. Reg. at 55,808. 

A. The Administrative Review Process for Nonmarket Economy Goods 

To calculate antidumping duty rates, Commerce applies the arithmetic outlined in Section 

731 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1673 (2006).2

 Under the statute, 

Commerce subtracts a foreign product’s “export price” (the product’s price in the United States) 

or “constructed export price” from its “normal value” (the product’s price or value in the 

producer’s home country). The difference between these two values is the dumping margin 

Commerce assigns the product. 19 U.S.C. § 1677(35)(A); see also Mittal Steel Galati S.A. v. 

United States, 31 CIT 1121, 1122–23, 502 F. Supp. 2d 1295, 1297 (2007).3

1

 Further citations to the Customs Courts Act of 1980 are to the relevant portions of Title 28 of the U.S. 

Code, 2006 edition. 

2

 Further citations to the Tariff Act of 1930 are to the relevant portions of Title 19 of the U.S. Code, 2006 

edition. 

3

 The calculation can be very complicated when there are below-cost sales, multiple models, and some sales 

above rather than below normal value. These problems do not arise in this case. 
Court No. 12-00320 Page 4 

The calculus grows considerably more complicated, however, when Commerce 

determines dumping margins for goods made in nonmarket economies. Goods produced in 

market economies usually carry a “normal value” equal to the goods’ sale price in the country of 

manufacture. 19 U.S.C. § 1677b(a). The law tacitly assumes these prices are set by market forces 

of supply and demand. In nonmarket economies, however, product prices are determined not 

solely by consumer tastes, but presumably by some government action. Hence, to determine the 

normal value of nonmarket economy goods for use in comparison to prices in the United States, 

Commerce disregards sales prices and estimates the market economy value of the nonmarket 

good’s factors of production (or “inputs”). It then adds up those values, includes an amount to 

represent general expenses, profit, and other expenses, and adopts the sum as the good’s 

constructed normal value. See id. § 1677b(c). The prices assigned to the inputs are called 

“surrogate values.”

When calculating surrogate values, Commerce first gathers production and sales data 

from the parties to an administrative review. See 19 C.F.R. § 351.221 (2013). Commerce then 

selects surrogates from among data meeting certain statutory requirements: To the extent 

possible, surrogate values must (1) come from a market economy country that is (2) a significant 

producer of the subject good and (3) economically comparable to the foreign producer’s country. 

See 19 U.S.C. § 1677b(c)(4). Commerce’s chosen surrogate must also constitute “the best 

available information” on the record regarding input prices. Id. § 1677b(c)(1).4

 In other words, 

4

 Commerce employs certain nonbinding preferences when choosing the “best available information” to 

value inputs. In general, Commerce tries to select surrogate values that are: product-specific, representative of a 

broad market average, publicly available, contemporaneous with the period of review, free of taxes and duties, and 

from an approved surrogate country. Certain Preserved Mushrooms from the People’s Republic of China, 77 Fed. 

Reg. 13,264, 13,268 (Dep’t Commerce Mar. 6, 2012) (prelim. results); see also 19 C.F.R. § 351.408(c)(2) (“[T]he 

Secretary normally will value all factors in a single surrogate country.”). 
Court No. 12-00320 Page 5 

the surrogates must be suitable to yield accurate dumping margins. See Rhone Poulenc, Inc. v. 

United States, 899 F.2d 1185, 1191 (Fed. Cir. 1990). 

Commerce may also review “benchmark” data to ensure the surrogate values it selects 

are reasonable. A benchmark is a product whose price roughly correlates with the price of an 

input assigned a surrogate value. Unlike surrogate values, however, benchmarks need not reflect 

the actual price of the inputs into foreign merchandise. Furthermore, benchmark data need not 

come from an economy comparable to the foreign producer’s. See Peer Bearing Co.-Changshan 

v. United States, 35 CIT __, __, 752 F. Supp. 2d 1353, 1372 (2011). Benchmarks, of course,

become less informative the greater the difference in the levels of development of the countries 

from which the data derive. See, e.g., Anshan Iron & Steel Co. v. United States, 27 CIT 1234, 

1248 (2003). In sum, Commerce may use benchmark data if these data prove helpful in 

determining whether a surrogate value is aberrational, or, to quote the statute, not “the best 

available information” for valuing an input. Zhejiang Native Produce & Animal By-Prods. Imp. 

& Exp. Grp. Co. v. United States, 32 CIT 673, 681 (2008). 

After combing through the parties’ proposed surrogates and benchmarks, Commerce 

decides which data to use to value the exporter’s inputs. Then it adds the surrogate values of all 

the inputs into the subject good, including costs, and produces the good’s constructed normal 

value. Commerce next publishes its findings in preliminary results, to which parties respond in 

case briefs and rebuttals. 19 C.F.R. §§ 351.221 (review procedures), 351.309 (written argument). 

Final dumping margins issue after the record closes to additional arguments and information. See

id. § 351.221. 
Court No. 12-00320 Page 6 

B. The Twelfth Administrative Review of the 1999 Antidumping Order 

Following the pattern above, Commerce requested information from foreign and 

domestic producers during the twelfth administrative review. See Initiation of Antidumping Duty 

Administrative Reviews, 76 Fed. Reg. 17,825 (Dep’t Commerce Mar. 31, 2011). In May 2011, 

Commerce selected Blue Field as a mandatory respondent. Respondent Selection Memorandum, 

PD I 23 (May 18, 2011), ECF No. 18 (Nov. 20, 2012). Blue Field, in turn, produced U.S. sales 

data and other information. Blue Field Questionnaire Response, PD I 44 (July 6, 2011), ECF No. 

18 (Nov. 20, 2012) (“PD I 44”). 

The following January, Monterey Mushrooms, Inc., a domestic producer and “interested 

party” under 19 U.S.C. § 1677(9), proposed surrogate prices for Blue Field’s straw and manure 

inputs. Petitioner’s Surrogate Comments at Exs. 3, 5, PD II 24 at bar code 3049889-01 (Jan. 6, 

2012), ECF No. 18 (Nov. 20, 2012) (“PD II 24”). Monterey Mushrooms based its proposed 

surrogates on Colombian import prices listed in the Global Trade Atlas (“GTA”). The GTA 

valued cereal husk and fertilizer—each a substitute for rice straw or cow manure—at $1350.88 

and $1337.94 per metric ton, respectively. See id. (prices in Colombian pesos); Pl.’s Reply Br. 

8–9, ECF No. 36 (prices in U.S. dollars). Blue Field responded by proposing alternative 

surrogate values in two rebuttal submissions. Blue Field’s Rebuttal Surrogate Comments at Ex. 

1, PD II 35 at bar code 3051313-01 (Jan. 17, 2012), ECF No. 18 (Nov. 20, 2012) (“PD II 35”); 

Blue Field’s Rebuttal Surrogate Comments at Ex. 1, PD II 43 at bar code 3059154-01 (Feb. 24, 

2012), ECF No. 18 (Nov. 20, 2012) (“PD II 43”). It argued that Monterey Mushrooms’ data were 

inferior to Blue Field’s proposed surrogates, which provided prices specific to rice straw and 

cow manure. See PD II 43 at 3. 
Court No. 12-00320 Page 7 

Notwithstanding Blue Field’s efforts, Commerce adopted Monterey Mushrooms’ 

Colombian surrogates in its preliminary results. See Certain Preserved Mushrooms from the 

People’s Republic of China, 77 Fed. Reg. 13,264, 13,268 (Dep’t Commerce Mar. 6, 2012) 

(prelim. results) (“Preliminary Results”). A flurry of statistics, letters, and arguments followed. 

On April 9, 2012, Blue Field submitted nearly three-hundred pages of surrogate and benchmark 

information to prove Commerce’s surrogate values were aberrantly high. Blue Field’s Surrogate 

Data, PD II 55–57 at bar code 3068251-01 to -03 (Apr. 9, 2012), ECF No. 18 (Nov. 20, 2012) 

(“PD II 55–57”). The parties then turned in their case briefs and rebuttals. In its case brief, Blue 

Field asked Commerce to use its alternative Indian or Indonesian surrogates in light of 

irregularities in the Colombian data.5

 Blue Field’s Case Brief at 7–14, PD II 58 at bar code 

3070213-01 (Apr. 19, 2012), ECF No. 18 (Nov. 20, 2012) (“PD II 58”). Monterey Mushrooms, 

in turn, discredited Blue Field’s benchmarks and proposed new benchmarks to corroborate the 

Colombian surrogates.6

 Petitioner’s Rebuttal Surrogate Submission, PD II 60 at bar code 

3070232-01 (Apr. 19, 2012), ECF No. 18 (Nov. 20, 2012) (“PD II 60”). Blue Field then 

countered by asking Commerce to reject Monterey Mushrooms’ benchmarks under 19 C.F.R. 

§ 351.301(c)(1), which permits Commerce to refuse untimely filed data. Blue Field’s Rebuttal

Brief at 1–2, PD II 61 at bar code 3071202-01 (Apr. 24, 2012), ECF No. 18 (Nov. 20, 2012) 

(“PD II 61”). Monterey Mushrooms responded by attacking Blue Field’s benchmarks and 

5

 Blue Field specifically referenced the following data in its case brief: a 2007 Indonesian USAID report, 

U.S. cereal straw import data, a USDA national report on cereal products, U.S. commercial feed yard manure prices, 

an Internet offer for manure, a 1999 Colombian organic fertilizer study, 2004 data on chicken manure from the 

Philippines, 2005–2006 Indian data on cow manure, 2006–2007 Indian data on rice straw, and a U.N. Food and 

Agriculture Organization (“FAO”) study mentioning Indian manure. See PD II 58. 

6

 Monterey Mushrooms’ benchmarks comprised import data under Harmonized Tariff Schedule (“HTS”) 

1213.00 (cereal products) and 3101.00 (fertilizer) from Indonesia, the Philippines, South Africa, Thailand, and 

Ukraine. 
Court No. 12-00320 Page 8 

alternative surrogates. Petitioner’s Rebuttal Brief at 6–18, PD II 62 at bar code 3071538-01 (Apr. 

24, 2012), ECF No. 18 (Nov. 20, 2012) (“PD II 62”).

On September 11, 2012, Commerce published its Final Results. Final Results, 77 Fed. 

Reg. at 55,808. In the accompanying Issues and Decisions Memorandum (“I&D Memo”), 

Commerce explained that it used Monterey Mushrooms’ Colombian surrogates to value Blue 

Field’s straw and manure inputs. Commerce also credited Monterey Mushrooms’ benchmark 

data, rejected a number of Blue Field’s benchmarks, and wholly neglected to mention others of 

Blue Field’s benchmarks. Issues & Decisions Memorandum at 7–15, PD II 66 at bar code 

3095471-01 (Sept. 5, 2012), ECF No. 18 (Nov. 20, 2012) (“PD II 66”). Blue Field filed a 

summons and complaint with this court on October 11, 2012. 

C. Tables Summarizing Relevant Data 

To simplify the morass of data at play in this case, the court summarizes relevant 

surrogate and benchmark information in the tables below. Table 1 lists record data respecting 

rice straw. The data are numbered 1S through 10S (“S” stands for straw), roughly in the order 

Commerce received them from the parties. Table 1 also gives the names of the data, including 

country of origin; the items that the data values; the U.S. dollar price of the items per metric ton; 

the party that proposed the data, including record citations; and the proposed use of the data in 

setting surrogate prices (i.e., as a surrogate, as a benchmark, or both). Table 2 provides the same 

information for cow manure surrogates and benchmarks. The data are numbered 1M through 9M 

(“M” stands for manure). The court refers to these data by number in parentheticals throughout 

the opinion.7

7

 The parties presented other data during administrative proceedings that were not directly addressed or 

explained on appeal. These data include: (1) Colombian rice grain import prices, PD II 60 at Attach. 3; (2) Brazilian 

manure prices reported in a university study, PD II 58 at Ex. 2, PD II 57 at Ex. 8; and (3) Indian manure prices 

reported in an FAO study, PD II 58 at Ex. 2, PD II 57 at Ex. 9. Blue Field mentioned the (footnote continued) 


Court No. 12-00320  Page 11 

II. EXHAUSTION OF REMEDIES 

Before assessing the merits, the court must resolve the government’s administrative 

exhaustion challenge. Def.’s Resp. Br. 29–35, ECF No. 32. The government asks the court to 

reject on appeal a number of Blue Field’s arguments, which allegedly were never made before 

Commerce: 

(1) Commerce should have considered 2009–2010 Indian company data as surrogates for 

rice straw and cow manure (3S, 3M); 

(2) Commerce’s surrogate value for rice straw was aberrational compared with 2007 

Indonesian straw prices (4S), a U.S. Internet straw offer (7S), Colombia wholesale 

rice prices (8S), Colombian retail rice prices (9S), and Colombian rice import data 

(10S);

(3) Commerce’s surrogate value for cow manure is aberrational compared to manure 

prices from U.S. feed yards (5M), a Colombian fertilizer study (4M), a livestock 

study from the Philippines (7M), and Colombian retail prices for hamburger meat 

(8M);

(4) Monterey Mushrooms’ benchmarks from Indonesia, the Philippines, South Africa, 

Thailand, and Ukraine were not specific to Blue Field’s inputs, contained 

unrepresentative volumes and high prices, and should be disregarded under 

Commerce’s practice of favoring domestic prices over import statistics (10S, 9M); 

and

(5) Commerce’s surrogate values for rice straw and cow manure are aberrational due to 

small import volumes (1S, 1M). 

See id. at 30–31. 

This court has discretion to determine when it will require the exhaustion of 

administrative remedies. See 28 U.S.C. § 2637(d) (“[T]he Court of International Trade shall, 

where appropriate, require the exhaustion of administrative remedies.”). When choosing how to 

exercise this discretion, the court is mindful of two aims: the preservation of agency authority 

and the promotion of judicial efficiency. See McCarthy v. Madigan, 503 U.S. 140, 145 (1992); 

Carpenter Tech. Corp. v. United States, 30 CIT 1373, 1374–75, 452 F. Supp. 2d 1344, 1346 
Court No. 12-00320  Page 12 

(2006). Accordingly, the court permits parties to raise arguments on appeal if they first made 

those arguments on the administrative record. This approach ensures Commerce has the 

opportunity to consider arguments during agency proceedings, and before a judge intervenes on 

appeal. See Rhone Poulenc, 899 F.2d at 1191; Trust Chem Co. v. United States, 35 CIT __, __, 

791 F. Supp. 2d 1257, 1268 n.27 (2011). 

Applying this test, the court finds Blue Field exhausted its remedies respecting the 2009–

2010 Indian data, the rice straw and cow manure benchmarks, and Blue Field’s assault on 

Monterey Mushrooms’ benchmarks. Blue Field did not exhaust its remedies regarding its 

sample-size and domestic pricing arguments. 

A. Blue Field Exhausted Remedies Respecting the 2009–2010 Indian Company Data 

The government claims that Blue Field never proposed 2009–2010 Indian data (3S, 3M) 

as surrogates and benchmarks for straw and manure. Def.’s Resp. Br. 30. Blue Field rejoins that 

it “specifically” asked Commerce in its case brief to use these data as surrogate prices. Pl.’s 

Reply Br. 4–5 (citing PD II 58 at 14). 

The administrative record tells a more nuanced tale. Contrary to the government’s view, 

Blue Field indeed offered the 2009–2010 Indian data in a supplemental surrogate value 

submission. PD II 43 at 3. In the submission, Blue Field claimed the 2009–2010 data should 

“undoubtedly supersede [Monterey Mushrooms’] Columbian [sic] customs data, which is vague 

and not input-specific.” Id. Blue Field failed, however, to cite the 2009–2010 Indian data in its 

case brief. See PD II 58. The case brief instead offered 2004–2005 and 2006–2007 Indian 

statistics for rice straw and cow manure surrogates (2S, 2M), and generally petitioned Commerce 

to use Indian data in lieu of Monterey Mushrooms’ Colombian data. Id. at 14 (“In light of the 

extremely unreasonably high import prices for fertilizer and cereal straw and husk in various 
Court No. 12-00320  Page 13 

forms that the Department used in the preliminary results, the Department could continue to use 

the Indian price information for similar products used in the previous reviews to properly 

evaluate the cost of such materials.”). None of Blue Field’s submissions following the case brief 

referenced the 2009–2010 data, either. 

Plaintiff’s approach to the 2009–2010 Indian data does not epitomize how parties should 

exhaust their administrative remedies. Blue Field would have spared itself trouble had it 

incorporated all of its surrogate data into the case brief. Nevertheless, the court holds Blue Field 

exhausted its remedies regarding the 2009–2010 Indian data. Arguments made in Blue Field’s 

case brief—together with the supplemental surrogate submission’s energetic petition for 

Commerce to use the Indian data—were enough to notify Commerce of Blue Field’s arguments 

regarding those data. See Trust Chem, 35 CIT at __, 791 F. Supp. 2d at 1268 n.27 (exhaustion 

satisfied when information cited on appeal was “necessarily before the agency” below); Ningbo

Dafa Chem. Fiber Co. v. United States, 580 F.3d 1247, 1259 (Fed. Cir. 2009) (exhaustion 

satisfied where record contained “at least a suggestion” of plaintiff’s argument on appeal); Corus

Staal BV v. United States, 502 F.3d 1370, 1379 (Fed. Cir. 2007) (holding parties must present 

arguments in case briefs as prerequisite for judicial review).

Contrary to the government’s briefing, Gerber Food (Yunnan) Co. v. United States, 33 

CIT 186, 601 F. Supp. 2d 1370 (2009), counsels nothing different. See Def.’s Resp. Br. 33. In 

Gerber, 33 CIT at 193–94, 601 F. Supp. 2d at 1378–79, plaintiff challenged Commerce’s margin 

calculation methodology before the agency, but it failed to argue the margin was unsupported in 

facts and punitive. On appeal, plaintiff was allowed to challenge Commerce’s dumping margin 

generally. The court did not, however, countenance plaintiff’s additional claims that the margin 

was punitive and factually unsupported. Id. at 194–95, 601 F. Supp. 2d at 1379. The court 
Court No. 12-00320 Page 14 

refused these new claims because plaintiff had not raised them in the case brief, depriving 

“Commerce of the opportunity to reconsider, and possibly depart from,” its determination in the 

preliminary results. Id. By contrast, Blue Field gave Commerce the opportunity to reconsider the 

2009–2010 Indian data in two documents—the supplemental surrogate submission and the case 

brief—both of which urged Commerce to use Indian instead of Colombian surrogates. See PD II 

43 at 3; PD II 58 at 13–14. 

B. Blue Field Exhausted Remedies Respecting Possible Aberrations in Commerce’s 

Surrogate Data 

The government also says Blue Field failed to tell Commerce that the Colombian 

surrogates appeared aberrational compared to benchmarks in the record. Def.’s Resp. Br. 30. The 

court disagrees. 

Blue Field’s case brief left few adjectives unsung in characterizing Commerce’s straw 

and manure surrogates as aberrational. PD II 58. There, Blue Field described the Colombian data 

as “wholly unreliable,” id. at 7, “totally unreliable,” id. at 8, “completely irreconcilable with U.S. 

export data,” id. at 9, “completely inconsistent with all record evidence,” id. at 11, “extremely 

unreasonably high,” id. at 14, and “the worst information on the record,” id. at 11. The case brief 

also offered as benchmarks U.S. export data for cereal straw and husks (5S); USDA feed data 

(6S); U.S. manure retail prices (6M); and manure prices from a study on organic fertilizer (4M). 

Id. at 8, 11, 12. Blue Field did not cite other potential benchmarks—i.e., the ones Commerce 

wants the court to reject now—in its case brief.10 Instead, Blue Field provided these benchmarks 

10 By way of reminder, those contested benchmarks are: 2007 Indonesian straw prices (4S); a U.S. 

Internet straw offer (7S); Colombia wholesale rice prices (8S); Colombian retail rice prices (9S); manure 

prices from U.S. feed yards (5M); a Colombian fertilizer study (4M); a livestock study from the Philippines 

(7M); and Colombian retail prices for hamburger meat (8M). 
Court No. 12-00320  Page 15 

in a surrogate value submission dated April 9, 2012. PD II 55–57. Blue Field categorized the 

data in a neat table on the submission’s second page. 

The logic that applied to the 2009–2010 Indian data applies here too. Blue Field argued in 

its case brief that Commerce’s surrogates for rice straw and cow manure were aberrantly high. 

Blue Field furnished data to support this argument in a surrogate value submission, which 

summarized all the data sources the government asks the court to reject. PD II 55 at 2. 

Furthermore, Blue Field invited Commerce to contact its consulting firm with questions, if any, 

about the data. Id. at 1. The circumstances show Commerce had an opportunity to assess Blue 

Field’s benchmarks but neglected to do so. See Trust Chem, 35 CIT at __, 791 F. Supp. 2d at 

1268 n.27. 

C. Blue Field Exhausted Remedies Respecting Aberrations in Monterey Mushrooms’ 

Benchmarks

The government next claims Blue Field did not challenge before the agency aberrations 

in Monterey Mushrooms’ benchmarks (10S, 9M). Def.’s Resp. Br. 30. Although this observation 

is accurate, the court again rules for Blue Field. 

Monterey Mushrooms submitted its benchmarks on April 19, 2012, the day the parties 

turned in their case briefs. See PD II 60. On April 24, Blue Field asked Commerce to reject the 

benchmarks under 19 C.F.R. § 351.301(c)(1), which permits Commerce to refuse untimely filed 

information. PD II 61 at 1–2. Monterey Mushrooms responded by attacking Blue Field’s 

benchmark data and surrogates. PD II 62. Then, on May 11, Blue Field sent yet another 

document to Commerce urging it to reject Monterey Mushrooms’ benchmarks as untimely filed. 

Blue Field’s Request to Reject Petitioner’s Rebuttal Brief, PD II 63 at bar code 3075123-01 

(May 11, 2012), ECF No. 18 (Nov. 20, 2012). Despite Blue Field’s petitions, Commerce adopted 
Court No. 12-00320  Page 16 

the benchmarks in its I&D Memo. See PD II 66 at 8 n.56. In fact, the benchmarks became the 

centerpiece of Commerce’s strategy to defend its straw and manure surrogates.

Ordinarily, the court would refuse to hear Blue Field’s challenge to Monterey 

Mushrooms’ benchmarks: An argument not made below is an argument forfeited on appeal. 

However, it appears Monterey Mushrooms provided the benchmarks after the record closed to 

additional factual submissions. And although Commerce said the benchmarks properly rebutted 

Blue Field’s attacks on the Colombian surrogates, it was not unreasonable for Blue Field to 

challenge the benchmarks solely for untimeliness. See 19 C.F.R. § 351.301(c)(1) (allowing 

Commerce to reject new factual information if untimely filed). The court will thus consider Blue 

Field’s challenge to Monterey Mushrooms’ data. See Zhengzhou Harmoni Spice Co. v. United 

States, 33 CIT 453, 495–96 n.49, 617 F. Supp. 2d 1281, 1318 n.49 (2009) (permitting plaintiff to 

respond to argument first raised in issues and decisions memorandum).

D. Blue Field Did Not Exhaust Remedies Respecting the Sample Size of Colombian 

Surrogates

The government next claims Blue Field failed to argue below that small sample sizes 

caused aberrations in the Colombian surrogates (1S, 1M). Def.’s Resp. Br. 31; see also Pl.’s 56.2 

Br. 23–25, ECF No. 28 (“56.2 Brief”). The evidence supports the government’s position. 

After scouring the record, the court cannot find where Blue Field said small sample sizes 

caused aberrations in the Colombian surrogates. The argument is found neither in Blue Field’s 

case brief, nor in submissions following Commerce’s Preliminary Results. Furthermore, 

although Blue Field tries to stitch together an argument by citing to an early Monterey 

Mushrooms submission and Blue Field’s Section C and D questionnaires, these documents 

supply little more than raw numbers. Monterey Mushrooms’ submission recites Colombian 

import quantities for cereal straw and fertilizer, PD II 24 at Exs. 3, 5, and Blue Field’s 
Court No. 12-00320  Page 17 

questionnaire lists its own input consumption data, PD I 44 at Exs. D-5, D-6. Unless Commerce 

employs statistical bloodhounds to sniff out arguments buried in unprocessed data, Blue Field’s 

record submissions were inadequate to alert Commerce to Blue Field’s sample-size argument. 

See Gerber, 33 CIT at 194–95, 601 F. Supp. 2d at 1379 (refusing to hear various challenges to 

dumping margin, although general challenge to margin sustained). 

Blue Field retorts that the court may waive “the exhaustion requirement in situations 

where mandating exhaustion would not serve any useful purpose.” Pl.’s Reply Br. 2 (citing 

Pakfood Pub. Co. v. United States, 34 CIT __, __, 724 F. Supp. 2d 1327, 1350–51 (2010)). The 

court will not apply this exception here. In Corus Staal, 502 F.3d at 1378–79, for example, the 

Federal Circuit refused to apply the futility exception where plaintiff Corus failed to exhaust a 

duty absorption argument before the agency. Corus had raised the argument preceding the 

preliminary results, but Commerce rejected Corus’ argument in those results. Corus thus thought 

it unnecessary to repeat the argument in its case brief. Id. The Federal Circuit held the futility 

exception inapplicable, because Commerce might have adopted Corus’ position in the final 

results had Corus presented the argument again in its case brief. Id. at 1380.

Blue Field, by contrast, failed to raise its sample-size argument at all, anywhere in the 

record. There is no evidence that Commerce would have rejected Blue Field’s argument out-ofhand for legal or policy reasons. See id.; Itochu Bldg. Prods. v. United States, No. 2013-1044, 

2013 WL 4405863, at *6–7 (Fed. Cir. Aug. 19, 2013) (applying futility exception where statute 

required Commerce to reject plaintiff’s argument below). Consequently, the court refuses to hear 

Blue Field’s sample-size argument on appeal. 
Court No. 12-00320  Page 18 

E. Blue Field Did Not Exhaust Remedies Respecting Domestic Data Use 

The court also rejects Blue Field’s argument that Commerce should have used domestic 

prices, and not import prices, to value Blue Field’s inputs. See Def.’s Resp. Br. 30. Blue Field 

did not raise this point in its case brief. The only data Blue Field cites to support its argument 

come from questionnaire responses from July 2011, a date long before the Preliminary Results 

issued. PD I 44. The questionnaire responses indicated only that Blue Field purchased its inputs 

domestically. They did not attack Commerce’s choice to use import data instead of domestic data 

to value rice straw and cow manure. Blue Field’s faltering effort below could not have alerted 

Commerce to the domestic price argument made now on appeal. 

III. COMMERCE’S DUMPING MARGIN IS NOT BASED IN SUBSTANTIAL 

EVIDENCE

Blue Field’s complaint centers on the dumping margin Commerce assigned its mushroom 

exports during the twelfth administrative review. In the preceding review, Commerce had 

assigned a 2.17% margin to Blue Field’s mushrooms. In the twelfth review, Commerce assigned 

a 308.33% margin. See Final Results at 55,809. Blue Field blames the increased margin on 

inflated surrogate values for rice straw and cow manure, two key inputs in its mushroom 

cultivation. Specifically, Blue Field alleges Commerce failed to ground its surrogate values for 

these inputs in substantial evidence.11

A. Standard of Review 

The court must remand any agency determination, including Commerce’s surrogate value 

choices, “found . . . to be unsupported by substantial evidence on the record, or otherwise not in 

 11 The government and Monterey Mushrooms argue that Blue Field’s increased dumping margin resulted 

from an actual increase in dumping. Def.’s Resp. Br. 11; Def.-Intervenor’s Br. 5, ECF No. 35. This argument is 

irrelevant. Blue Field challenges only whether Commerce based its rice straw and cow manure surrogate prices in 

substantial evidence. See Pl.’s 56.2 Br. 10 (“The use of horrendously aberrational surrogate prices to value Blue 

Field’s reported factors of production for rice straw and cow manure greatly overstated Blue Field’s margins in this 

review . . . .”). Blue Field does not challenge the high dumping margin per se, but instead contests the results of 

using allegedly overstated surrogate values. 
Court No. 12-00320 Page 19 

accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). As discussed in Part I, the law requires 

Commerce to base surrogate prices for inputs on “the best available information” regarding those 

inputs from a comparable market economy. Id. § 1677b(c)(1). The court will uphold 

Commerce’s surrogate value choices if the agency fairly considered record evidence when 

choosing surrogates, so that a reasonable mind could accept Commerce’s findings. See Consol.

Edison Co. v. NLRB, 305 U.S. 197, 217 (1938); CITIC Trading Co. v. United States, 27 CIT 356, 

361 (2003).

B. Commerce’s Surrogate Value for Rice Straw Was Not Supported by Substantial 

Evidence

Blue Field advances three arguments to show Commerce’s rice straw surrogate was 

unfounded in substantial evidence. First, in Blue Field’s view, Commerce’s rice straw surrogate 

was aberrantly high compared to benchmarks in the record. Second, Blue Field claims the 

Colombian surrogate value, which comprised prices for straw and other cereal products, was not 

specific to Blue Field’s rice straw inputs. Third—and in light of these apparent flaws in 

Commerce’s data—Blue Field contends the agency improperly rejected alternative surrogates 

from Indonesia and India. The court holds for Blue Field. 

i. Commerce Failed to Explain Possible Aberrations in Its Colombian Surrogate

Blue Field argues that the Colombian surrogate (1S) was aberrantly high and 

unrepresentative of Blue Field’s actual input costs. This argument breaks into three subparts. 

First, Blue Field says benchmarks in the record required Commerce to justify its chosen 

surrogate, but Commerce failed to do so. Second, Blue Field argues Commerce gave inadequate 

reasons for rejecting Blue Field’s benchmarks. Third, Blue Field says Monterey Mushrooms’ 

benchmarks (10S), which purport to corroborate the Colombian surrogate, are themselves 

aberrant and do not support Commerce’s surrogate choice. 
Court No. 12-00320  Page 20 

The law gives Commerce discretion to choose among potential surrogate values on the 

record. See Nation Ford Chem. Co. v. United States, 166 F.3d 1373, 1377 (Fed. Cir. 1999). 

“[S]imply because there are lower . . . prices on the record, Commerce does not lose its 

discretion to determine what it believes constitutes the ‘best available information’ within the 

meaning of 19 U.S.C. § 1677b(c)(1).” China First Pencil Co. v. United States, 34 CIT __, __, 

721 F. Supp. 2d 1369, 1381 (2010). However, even though it enjoys some discretion in selecting 

the best available information, Commerce must defend its surrogate choices when confronted 

with data undermining the surrogate’s reliability. Mittal Steel, 31 CIT at 1135, 502 F. Supp. 2d at 

1308; Jinan Yipin Corp. v. United States, 35 CIT __, __, 800 F. Supp. 2d 1226, 1304–05 (2011). 

If the agency’s surrogate prices diverge violently from credible benchmark prices, Commerce 

must explain why it chose to reject plaintiff’s data while crediting its own. See Peer Bearing, 35 

CIT at __, 752 F. Supp. 2d at 1371. 

Applying these standards, the court finds Commerce did not base its rice straw surrogate 

in substantial evidence. Blue Field’s data suggested—rather elegantly in the court’s view—that 

something was wrong with Commerce’s surrogate. As summarized in Table 1 above, 

benchmarks from India, Indonesia, and the United States offered a range of rice straw prices 

between $10.00 and $90.08 per metric ton (2S–7S). See Pl.’s Reply Br. 8–9. Although this range 

is itself rather broad, all values within that range are lower than the $1350.88 price Commerce 

adopted (1S). Blue Field’s statistics on rice grain prices in Colombia are also telling. In 2004, 

rice cost $690.00 per metric ton at retail, almost $600.00 less than Commerce’s proposed price 

for rice straw. This disparity makes little sense. Rice straw, presumably a low-cost byproduct of 

rice grain cultivation, should not cost more than the primary good itself (8S–9S). Id. at 9; PD II 

57 at Ex. 5. 
Court No. 12-00320  Page 21 

These benchmarks should have alerted Commerce to potential aberrations in its rice straw 

surrogate (1S). And “[w]hen confronted with a colorable claim that the data that Commerce is 

considering is aberrational,” Commerce is obligated, at a minimum, to discuss competing 

evidence and decide whether to credit or reject it. Mittal Steel, 31 CIT at 1135, 502 F. Supp. 2d 

at 1308. Yet in the I&D Memo, Commerce failed even to mention Blue Field’s USDA hay data 

(6S), the U.S. Internet offer (7S), and the Colombian wholesale and retail rice prices (8S, 9S). 

Commerce also did not explain why it dismissed Blue Field’s Indonesian and Indian data for use 

as benchmarks (2S–4S). See PD II 66 at 10–11, 15. Although Commerce offered reasons for 

rejecting these data for use as surrogates, see infra Part III(B)(iii), it did not explain whether the 

data were suitable as benchmarks to corroborate the Colombian surrogate, see PD II 66 at 10; 

Peer Bearing, 35 CIT at __, 752 F. Supp. 2d at 1372 (approving use of data as benchmarks). 

Commerce must reconsider its rice straw surrogate in light of these benchmarks on remand.12

Furthermore, despite Blue Field’s benchmarks, Commerce failed to bolster its rice straw 

surrogate with credible corroborating data. When confronted with a claim that its surrogate is 

aberrational, Commerce must explain why the data it chose are reliable and nondistortive. Mittal 

Steel, 31 CIT at 1135, 502 F. Supp. 2d at 1308–09; Xinjiamei Furniture (Zhangzhou) Co. v. 

United States, Slip Op. 13-30, 2013 WL 920276, at *4 (CIT Mar. 12, 2013). Here, Commerce 

tried to justify its Colombian surrogate by citing Monterey Mushrooms’ benchmarks from 

Thailand, South Africa, and the Philippines (10S). Commerce argued that the Colombian 

surrogate price, $1.28 per kilogram, fell within a range of prices from comparable economies, 

 12 Of Blue Field’s benchmarks, the only one Commerce successfully rejected was the U.S. export data (5S). 

In the I&D Memo, Commerce faulted Blue Field’s U.S. export data because they excluded delivery charges, while 

Commerce’s Colombian surrogate (1S) did not. PD II 66 at 10. Because this discrepancy could cause the U.S. data 

not to correlate with the Colombian data, Commerce could reject the data for use as a benchmark. See Zhejiang, 32 

CIT at 681. Commerce offered other reasons for rejecting the U.S. export data, but the court finds them 

unpersuasive. 
Court No. 12-00320  Page 22 

varying from $0.89 per kilogram in Thailand to $1.56 per kilogram in the Philippines. See PD II 

66 at 10. In Commerce’s view, these data neutralized Blue Field’s benchmarks and proved “that 

the Colombian import data is representative of market averages for rice straw.” Id.

Still, Commerce failed to consider whether Monterey Mushrooms’ benchmarks were 

themselves aberrational. According to Blue Field, the prices reflected in these data were based on 

commercially miniscule import volumes. Pl.’s 56.2 Br. 26–27. During the period of review, 

Monterey Mushrooms’ benchmark countries imported a total of about seventy metric tons of 

cereal husks and straw under HTS 1213.00. Blue Field, by contrast, consumed almost fortythousand metric tons of rice straw in its mushroom cultivation during the same period. Id. Given 

these facts, Commerce should have analyzed whether Monterey Mushrooms’ benchmark data 

actually supported the Colombian surrogate. See Jinan Yipin, 35 CIT at __, 800 F. Supp. 2d at 

1298 (rejecting skewed corroborating data); Xinjiamei, 2013 WL 920276, at *4 (suggesting small 

import volumes may cause aberrations). But it did not. Absent properly vetted benchmarks to 

corroborate the Colombian data, Commerce’s rice straw surrogate—which Blue Field vigorously 

assailed as aberrational—lacked foundation in substantial evidence. 

ii. Commerce’s Defense Against Blue Field’s Product-Specificity Challenge Was Not 

Based in Substantial Evidence 

Blue Field next claims that Commerce’s surrogate (1S) did not reflect the market price 

for rice straw. Instead, the surrogate comprised the average value of a variety of cereal products, 

including chopped and pelletized husks—all of which could be more expensive than rice straw. 

Blue Field argues that alternative surrogates were more specific to its input, and consequently, 

that Commerce’s surrogate is unsubstantiated in evidence and not the “best available 

information” on the record. See PD II 58 at 7–9. 
Court No. 12-00320 Page 23 

In administrative reviews, foreign producers bear a de facto burden to show that 

Commerce’s surrogate is not specific to a disputed input. See Peer Bearing Co. v. United States,

36 CIT __, __, 884 F. Supp. 2d 1313, 1331–32 (2012) (discussing evidence showing 

Commerce’s basket data not specific to plaintiff’s input); Longkou Haimeng Mach. Co. v. United 

States, 32 CIT 1142, 1164, 581 F. Supp. 2d 1344, 1363 (2008) (noting plaintiff’s input not the 

same product valued in Commerce’s basket); see also China First Pencil Co., 34 CIT at __, 721 

F. Supp. 2d at 1380–81 (upholding Commerce’s use of basket data where plaintiff produced 

nothing to show distortion); Dorbest Ltd. v. United States, 30 CIT 1671, 1702–03, 462 F. Supp. 

2d 1262, 1290–91 (2006) (same). If the foreign producer offers alternative, input-specific 

surrogates on the record, the court may find Commerce’s reliance on basket data unreasonable. 

See Zhengzhou, 33 CIT at 487, 617 F. Supp. 2d at 1312 (offering product-specific surrogates); 

Jinan Yipin Corp. v. United States, 31 CIT 1901, 1934–38, 526 F. Supp. 2d 1347, 1376–79 

(2007) (finding unreasonable Commerce’s reliance on basket data).

Here, Blue Field made little effort to show the Colombian surrogate (1S) was not specific 

to rice straw. In its case brief, Blue Field observed only that the Colombian surrogate comprised 

average import prices for “cereal straw and husks, unprepared, whether or not chopped, ground, 

pressed or in the form of pellets,” as delineated in HTS 1213.00. Hypothetically, this basket 

average could encompass products much more expensive than Blue Field’s input. See PD II 58 at 

7. But Blue Field offered no concrete evidence to prove this was the case. See id. at 7–9; Def.’s

Resp. Br. at 18. Had it argued more effectively, Blue Field might have submitted data showing 

HTS 1213.00 primarily values cereal products more expensive than Blue Field’s input. This 

technique has proven effective in similar surrogate value disputes. See, e.g., Peer Bearing, 36 

CIT at __, 884 F. Supp. 2d at 1331–32. 
Court No. 12-00320 Page 24 

Despite deficiencies in Blue Field’s argument, the court holds Commerce must reconsider 

the specificity of its rice straw surrogate on remand. Blue Field offered abundant evidence that 

Commerce’s surrogate was aberrational, see supra Part III(B)(i), and these aberrations may stem 

from specificity problems in the Colombian data (1S). Furthermore, although Commerce 

attempted to reject Blue Field’s alternative surrogates as discussed in greater detail below, see

infra Part III(B)(iii), the court finds most of these arguments unconvincing. Commerce could not 

paper over specificity problems in its own surrogate by exaggerating flaws in Blue Field’s. See

Zhengzhou, 33 CIT at 498, 617 F. Supp. 2d at 1321; Taian Ziyang Food Co. v. United States, 35 

CIT __, __, 783 F. Supp. 2d 1292, 1330 (2011). The agency’s rice straw surrogate was thus not 

based in substantial evidence. 

iii. Commerce Reasonably Rejected Blue Field’s Indonesian Surrogate, but Not the

Indian Surrogates

Although Blue Field struggled to prove Commerce’s surrogate was insufficiently specific 

to rice straw, Blue Field’s benchmarks uncovered possible aberrations in the Colombian data 

(1S). Consequently, Commerce was required to explain why it rejected Blue Field’s less 

expensive and possibly more specific surrogate candidates (2S–4S). Commerce retorts that it 

adequately explained why it rejected Blue Field’s competing data. 

Again, Commerce must defend its surrogate choices when the record suggests other data 

more accurately value plaintiff’s inputs. See Mittal Steel, 31 CIT at 1135, 502 F. Supp. 2d at 

1308. The agency’s rationale for rejecting Blue Field’s 2006–2007 Indonesian data (4S) meets 

this standard. In the I&D Memo, Commerce noted that the Indonesian data came from only two 

sources—a Central Javan dairy and an East Javan trader. This small sample size gives pause to 

ask whether the data actually represented average prices for rice straw. PD II 66 at 10.

Commerce also faulted Blue Field’s data for failing to indicate whether the Indonesian prices 
Court No. 12-00320  Page 25 

were exclusive of taxes. Id. at 10–11. These flaws likely undermine the data’s reliability. They 

also undercut Blue Field’s argument that the Indonesian surrogate was clearly superior to the 

Colombian surrogate. See 19 U.S.C. § 1677b(c)(1); Polyethylene Retail Carrier Bag Comm. v. 

United States, 29 CIT 1418, 1444 (2005) (rejecting data from single source in favor of 

countrywide data).13 When asked to pass judgment on Commerce’s choice between two 

imperfect datasets, the court defers to Commerce. 

By contrast, Commerce inadequately explained why it rejected Blue Field’s Indian 

surrogates (2S, 3S). The agency made no mention of Blue Field’s 2009–2010 data (3S) anywhere 

in the record. Commerce could not dismiss these data by ignoring their existence.14 And although 

Commerce expressly discredited Blue Field’s 2006–2007 Indian data (2S), its reasons for doing 

so were unpersuasive. In the I&D Memo, Commerce declined to use the 2006–2007 data, stating 

the agency had chosen Colombia as its lead surrogate country, and Colombia met Commerce’s 

criteria for selecting surrogate values. PD II 66 at 15. But this reasoning failed to explain why 

Commerce preferred the Colombian surrogate despite its apparently aberrational qualities. See 

 13 Commerce made additional arguments regarding the Indonesian data, but the court finds them 

unconvincing. In the I&D Memo, Commerce said it rejected the Indonesian information because it was neither from 

Colombia nor contemporaneous with the period of review. PD II 66 at 10. When surrogate information from 

Colombia was unavailable, however, Commerce valued a number of Blue Field’s inputs using data from countries 

other than Colombia. Preliminary Results, 77 Fed. Reg. at 13,267 (listing Ukraine and the Philippines as surrogate 

countries for mushroom spawn and land rent). And although 19 C.F.R. § 351.408(c)(2) states Commerce’s 

preference to use data from one surrogate country to value product inputs, this preference does not trump 

Commerce’s obligation to value inputs using the “best available information.” 19 U.S.C. § 1677b(c)(1); see Taian 

Ziyang Food, 35 CIT at __, 783 F. Supp. 2d at 1330 (recognizing Commerce’s duty to use “best available 

information,” despite policy preferences). 

Commerce’s contemporaneity argument is similarly unavailing. Record evidence indicates Commerce 

applied price multipliers to a number of Blue Field’s inputs to make them contemporary with the period of review. 

Blue Field & Xingda Surrogate Values Memo at Ex. 2, PD II 46 at bar code 3061065-01 (Mar. 2, 2012), ECF No. 

18 (Nov. 20, 2012). Nor does the law prohibit Commerce from using data that is not contemporaneous with the 

period of review when necessary to produce accurate surrogates. See Shakeproof Assembly Components v. United 

States, 30 CIT 1173, 1178–79 (2006).

14 Although the parties made a number of arguments on appeal regarding whether Commerce could use the 

2009–2010 data as surrogates—Blue Field argued, for example, that the 2009–2010 data were contemporaneous 

with the review period because they coincided by two months—the court will not address these arguments. See Pl.’s 

56.2 Br. 17–18. 
Court No. 12-00320  Page 26 

Clearon Corp. v. United States, Slip. Op. 13-22, 2013 WL 646390, at *6 (CIT Feb. 20, 2013) 

(recognizing country of origin as a tie-breaking variable when two surrogates equally qualified to 

value input). Commerce also argued it could not use the Indian data because India was not on 

Commerce’s list of approved surrogate countries. PD II 66 at 15. Yet Commerce itself stated that 

its surrogate country list was “non-exhaustive” and that the agency could consider data from 

other countries “if the record provides [the agency] adequate information to evaluate them.” 

Request for Surrogate Countries at 1–2, PD II 12 at bar code 3034707-01 (Oct. 12, 2011), ECF 

No. 18 (Nov. 20, 2012) (“PD II 12”). Furthermore, the statute permits Commerce to take 

surrogates from countries not economically comparable to China when data from economically 

comparable countries are not probative of input prices. 19 U.S.C. § 1677b(c)(4) (requiring 

Commerce to value inputs from economically comparable countries “to the extent possible”); 

DuPont Teijin Films v. United States, 37 CIT __, __, 931 F. Supp. 2d 1297, 1300 n.1 (2013). In 

light of possible aberrations in the Colombian surrogate, Commerce should not have ignored 

useful data from countries not found in the agency’s surrogate country list.15

Furthermore, Commerce erred to say Blue Field provided no record evidence regarding 

whether India is a significant producer of preserved mushrooms. PD II 66 at 15; see also 19 

U.S.C. § 1677b(c)(4). In fact, Blue Field argued in its case brief that India is economically 

comparable to China and a significant mushroom producer. PD II 58 at 13–14. Blue Field 

 15 This conclusion does not upset Commerce’s preferences regarding surrogate data used in administrative 

reviews. See supra note 4 and accompanying text. In Home Meridian International, Inc. v. United States, 37 CIT __, 

__, 922 F. Supp. 2d 1366, 1372 (2013), the court recognized that Commerce values inputs using, in order of 

preference: “(1) Prices paid by the NME manufacturer for items imported from a market economy; (2) prices in the 

primary surrogate country of domestically produced or imported materials; (3) prices in one or more secondary 

surrogate countries reported by the industry producing subject merchandise in the secondary country or countries; 

and (4) prices in one or more secondary surrogate countries from sources other than the industry producing the 

subject merchandise.” (citing Sparklers from the People's Republic of China, 56 Fed. Reg. 20,588, 20,590 (Dep't 

Commerce May 6, 1991) (final determination of sales at less-than-fair value)). In this case, Commerce’s proposed 

surrogate data for rice straw comes from the second category, encompassing prices of imported and domestic goods 

in the primary surrogate country. Insofar as Blue Field’s Indian data meet the statutory requirements for surrogate 

countries in 19 U.S.C. § 1677b(c)(4), Blue Field’s Indian data could fall in Commerce’s third category, comprising 

industry-reported input prices from secondary surrogate countries. 
Court No. 12-00320  Page 27 

buttressed these claims by citing record data regarding India’s economic situation and role as a 

surrogate country in prior administrative reviews of the antidumping order on preserved 

mushrooms. Id. at 14; Blue Field’s Comments on Surrogate Selection, PD II 19 at bar code 

3038725-01 (Nov. 2, 2011), ECF No. 18 (Nov. 20, 2012) (“PD II 19”). The court fails to see 

how Commerce could review Blue Field’s arguments, sift through the evidence, and still find 

that Blue Field “ha[d] not provided data on whether India is a significant producer of 

comparable merchandise.” PD II 66 at 15 (emphasis added). 

Commerce also erred in rejecting the 2006–2007 Indian data because they were not 

contemporaneous with the period of review. Id. Indeed, Commerce may invoke contemporaneity 

as a tie-breaking factor when choosing between equally reliable datasets. But contemporaneity 

alone is an insufficient reason for dismissing alternative surrogates when Commerce’s own 

surrogate appears flawed. See Shakeproof Assembly Components v. United States, 30 CIT 1173, 

1178–79 (2006). Furthermore, Commerce might have fixed contemporaneity problems in the 

Indian data using a price multiplier, which Commerce applied to its energy, water, and land use 

surrogates. Blue Field & Xingda Surrogate Values Memo at Ex. 2, PD II 46 at bar code 

3061065-01 (Mar. 2, 2012), ECF No. 18 (Nov. 20, 2012); Preliminary Results, 77 Fed. Reg. at 

13,268; see also CITIC, 27 CIT at 365–66 (recognizing that contemporaneity is not statutory 

requirement under 19 U.S.C. § 1677b(c)). 

For the reasons above, the court holds Commerce did not base its rice straw surrogate in 

substantial evidence. On remand, Commerce must reevaluate its surrogate choice in light of Blue 

Field’s proposed surrogates and benchmarks (2S–3S, 6S–9S) and determine whether small 

import volumes preclude using Monterey Mushrooms’ data as benchmarks (10S). Commerce 
Court No. 12-00320 Page 28 

also must decide whether the Colombian surrogate (1S) is in fact the “best available information” 

on the record compared to Blue Field’s Indian alternatives (2S–3S). 

C. Commerce’s Surrogate Value for Cow Manure Was Not Supported by Substantial 

Evidence

Commerce also failed to base its cow manure surrogate on substantial evidence. The 

parties’ arguments regarding cow manure are nearly identical to those applied to rice straw. See

generally Pl.’s 56.2 Br.; Def.’s Resp. Br. The court will thus use the same legal framework to 

analyze Commerce’s cow manure surrogate as it used for rice straw. See supra Part III(B). 

i. Commerce Failed to Explain Possible Aberrations in Its Colombian Surrogate

Blue Field makes three arguments regarding aberrations in Commerce’s cow manure 

surrogate (1M): first, that Blue Field’s benchmark data required Commerce to explain 

irregularities in the Colombian surrogate; second, that Commerce erroneously dismissed Blue 

Field’s benchmarks; and third, that Monterey Mushrooms’ benchmarks (9M) failed to support 

the Colombian surrogate. See generally Pl.’s 56.2 Br. 

As with rice straw, the court finds Blue Field’s benchmarks revealed possible aberrations 

in Commerce’s cow manure surrogate. See supra Part III(B)(i). Commerce’s surrogate (1M) 

valued cow manure at $1337.94 per metric ton. Blue Field’s proposed surrogates, by contrast, 

valued cow manure somewhere between $21.55 and $162.04 (2M–4M). Blue Field’s 

benchmarks, including U.S. and Filipino manure prices ranging from $5.48 to $220.00 (5M–

7M), also suggested the Colombian price was too high. Thus, Commerce had to explain 

rationally why it rejected Blue Field’s proposed surrogates and benchmarks. See Peer Bearing,

35 CIT at __, 752 F. Supp. 2d at 1371. 

Commerce failed to do so when it rejected Blue Field’s 2004–2005 Indian data for use as 

a benchmark (2M). Commerce discredited these data for the same reasons it discredited Blue 
Court No. 12-00320  Page 29 

Field’s 2006–2007 Indian rice straw data. It said that Colombia (not India) was Commerce’s lead 

surrogate country, that India was not economically comparable to China, and that the data were 

not contemporaneous with the review period. PD II 66 at 14–15. The court finds Commerce’s 

reasoning anemic. See supra Part III(B)(iii) (critiquing Commerce’s reasons for rejecting Blue 

Field’s rice straw surrogates). Furthermore, Commerce entirely neglected to address Blue Field’s 

2009–2010 Indian data relating to cow manure (3M) and the Colombian hamburger data (8M). 

Commerce must consider these data on remand. 

The agency’s conclusions regarding Blue Field’s Philippines benchmarks are similarly 

ill-conceived (7M). In the I&D Memo, Commerce disqualified the Philippines data because they 

came from the Philippines, not Colombia. This argument falters, however, because Commerce 

can use data as benchmarks, even if their country of origin precludes their use as surrogates. Peer

Bearing, 35 CIT at __, 752 F. Supp. 2d at 1372; see supra Part I(A). In any event, the Philippines 

data came from a country on Commerce’s surrogate list. See PD II 12 at 2 (listing Philippines as 

surrogate country). Commerce’s argument that the data were not contemporaneous with the 

period of review also fails. See supra Part III(B)(iii). The court understands contemporaneity 

may help Commerce choose between equally reliable datasets. Nonetheless, when Commerce’s 

data appear flawed, contemporaneity alone is an insufficient justification for dismissing better 

surrogates and benchmarks. See Shakeproof, 30 CIT at 1178–79. The court also faults Commerce 

for rejecting the Philippines data because chicken and swine manure are not specific to cow 

manure. Commerce nowhere explained why swine and chicken manure are less specific to cow 

manure than Commerce’s own surrogate value, which comprised all kinds of fertilizers.16

 16 The court finds that Commerce satisfactorily explained its reasons for rejecting Blue Field’s remaining 

benchmark data on cow manure. Commerce said U.S. feed yard prices (5M) represented the cost of producing 

manure, and concluded the feed yard data may not correlate with actual cow manure prices. PD II 66 at 14; see

Zhejiang, 32 CIT at 681. Commerce also reasonably argued that discrepancies between “sale” (footnote continued) 
Court No. 12-00320  Page 30 

Finally, the court declines to hold that Monterey Mushrooms’ benchmarks (9M) 

supported Commerce’s choice to use the Colombian surrogate (1M). See PD II 66 at 14. Blue 

Field observes in its briefing that manure import volumes from South Africa, the Philippines, 

Indonesia, Ukraine, and Thailand were commercially small and potentially aberrational. Pl.’s 

56.2 Br. 27. Commerce did not address this allegation below. Nor did it evaluate the credibility 

of Monterey Mushrooms’ benchmarks on the record. See PD II 61 at 1–2 (arguing to reject new 

benchmark information). The agency cannot deflect allegations that its surrogate is aberrational 

by raising untested benchmark data as a shield. In view of these arguments, the court finds 

Commerce’s Colombian cow manure surrogate (1M) was unsubstantiated in record evidence. 

ii. Commerce’s Defense Against Blue Field’s Product-Specificity Challenge Was Not 

Based in Substantial Evidence 

Blue Field also argues that Commerce’s surrogate (1M) was not specific to cow manure 

and was thus unfounded in substantial evidence. The arguments Blue Field makes here are 

similar to those regarding rice straw. See supra Part III(B)(ii). 

Blue Field challenged the Colombian surrogate’s specificity by citing HTS 3101.00. 

According to Blue Field, this subheading covers “animal and vegetable fertilizers, including 

mixed or chemically treated,” and “fertilizers made by mixing or chemically treating animal or 

vegetable products”—a basket too broad, in Blue Field’s view, to accurately value cow manure. 

Pl.’s 56.2 Br. 31–32; PD II 58 at 10–13. Blue Field claimed its 2004–2005 and 2009–2010 

Indian surrogates (2M–3M) were more specific to cow manure and the “best available 

information” on the record. 19 U.S.C. § 1677b(c)(1). 



and retail prices for U.S. bagged manure (6M) rendered the data unusable as a benchmark. PD II 66 at 14. And 

Commerce successfully challenged the 1999 Colombian organic fertilizer study (4M) by citing the study’s limited 

sample size and equivocal treatment of exchange rates and taxes. Id. at 13. These flaws—in contrast with other 

deficiencies like contemporaneity, which might be corrected with a price multiplier—call into question whether the 

data actually represent cow manure prices in market economy countries. Commerce could reasonably rely on such 

sound rationales. 
Court No. 12-00320  Page 31 

Blue Field bore a de facto burden to show Commerce’s data yielded a distorted price for 

rice straw. See Peer Bearing, 36 CIT at __, 884 F. Supp. 2d at 1331–32; Longkou Haimeng 

Mach. Co., 32 CIT at 1164, 581 F. Supp. 2d at 1363. To meet this burden, Blue Field did little 

more than regurgitate the subheading from HTS 3101.00. This argument in itself generally 

would not prove the Colombian data were insufficiently specific and unsuitable for surrogate 

use.

Nevertheless, despite Blue Field’s flawed attempt to demonstrate specificity problems in 

Commerce’s data, the court holds Commerce must reconsider the specificity of its cow manure 

surrogate on remand. As discussed above, Blue Field offered evidence that Commerce’s 

surrogate was aberrational. See supra Part III(C)(i). These aberrations may have resulted from 

specificity problems in the Colombian data (1M). Furthermore, although Commerce attempted to 

reject Blue Field’s alternative cow manure surrogates, the court finds these arguments 

unconvincing. See infra Part III(C)(iii). It was improper for Commerce to use data of 

questionable reliability when Blue Field offered more specific alternative surrogates. See 

Zhengzhou, 33 CIT at 498, 617 F. Supp. 2d at 1321. Accordingly, Commerce’s cow manure 

surrogate choice was not based in substantial evidence. 

iii. Commerce Failed to Explain Why Blue Field’s Alternative Surrogates Were Inferior 

to the Colombian Data 

Because Blue Field’s data revealed possible specificity problems and aberrations in the 

Colombian surrogate, Commerce had to explain why it used the Colombian data and not Blue 

Field’s alternatives. This it did not do. 

Commerce rejected Blue Field’s Indian manure surrogates because the surrogates came 

not from Colombia but from India, because India is supposedly neither economically comparable 

to China nor a significant mushroom producer, and because the Indian data were not 
Court No. 12-00320 Page 32 

contemporaneous with the period of review. See supra Part III(B)(iii). Although India was not 

among the agency’s listed surrogate countries, however, Commerce valued a number of products 

from places other than Colombia. See Preliminary Results, 77 Fed. Reg. at 13,267 (valuing 

mushroom spawn in Ukraine and land rent in the Philippines). Blue Field also provided data 

showing India is economically comparable to China and a significant mushroom producer. See

PD II 19. In light of record data, the court concludes Commerce erred to reject the Indian data for 

no reason other than the data’s country of origin. See Clearon, 2013 WL 646390, at *3–6. 

Commerce also erred in dismissing the Indian data because of contemporaneity problems. 

While Commerce may invoke contemporaneity as a tie-breaking factor when choosing between 

equally reliable datasets, the agency should not dismiss alternative surrogates when its own 

surrogate appears flawed. See Shakeproof, 30 CIT at 1178–79. And Commerce might have fixed 

the contemporaneity problem by applying a multiplier. See supra Part III(B)(iii). 

For these reasons, the court holds Commerce did not base its cow manure surrogate in 

substantial evidence. On remand, Commerce must reevaluate its surrogate choice in light of Blue 

Field’s manure surrogates and benchmarks (2M–3M, 7M–8M). Commerce must also consider 

whether Monterey Mushrooms’ benchmark data (9M) are reliable corroborants for cow manure 

prices. Finally, in light of this analysis, Commerce must reconsider whether its Colombian 

surrogate (1M) is the “best available information” on the record compared with Blue Field’s 

alternative surrogates (2M–3M). 

IV. CONCLUSION AND ORDER

The court concludes that Commerce did not base its surrogate values for rice straw and 

cow manure in substantial evidence. Accordingly, the court declines to address the parties’ other 
Court No. 12-00320 Page 33 

arguments. On remand, Commerce must reconsider its surrogate values for rice straw and cow 

manure and recalculate Blue Field’s dumping margin. 

Upon consideration of all papers and proceedings herein, it is hereby: 

ORDERED that the final determination of the International Trade Administration, 

United States Department of Commerce (“Commerce”), published as Certain Preserved 

Mushrooms from the People’s Republic of China, 77 Fed. Reg. 55,808 (Dep’t Commerce Sept. 

12, 2012) (“Final Results”), be, and hereby is, REMANDED to Commerce for redetermination; 

it is further 

ORDERED that Plaintiff’s Rule 56.2 Motion for Judgment on the Agency Record be, 

and hereby is, GRANTED as provided in this Opinion and Order; it is further 

ORDERED that Commerce must issue a redetermination (“Remand Redetermination”) 

in accordance with this Opinion and Order that is in all respects supported by substantial 

evidence, in accordance with law, and supported by adequate reasoning; it is further 

ORDERED that Commerce, on remand, shall reconsider its decision to use the 

Colombian Global Trade Atlas (“GTA”) data under Harmonized Tariff Schedule (“HTS”) 

1213.00 (1S) as a surrogate value for rice straw, and in doing so, must redetermine a surrogate 

based on the “best available information” on the record in accordance with 19 U.S.C. 

§ 1677b(c)(1) (2006), as compared with alternative surrogates (2S–3S) and benchmarks (6S–

10S) on the record; it is further 

ORDERED that Commerce, on remand, shall reconsider its decision to use the 

Colombian GTA data under HTS 3101.00 (1M) as a surrogate value for cow manure, and in 

doing so, must redetermine a surrogate based on the “best available information” on the record in 

accordance with 19 U.S.C. § 1677b(c)(1), as compared with alternative surrogates (2M–3M) and 

benchmarks (7M–9M) in the record; it is further 

ORDERED that Commerce shall recalculate Plaintiff Blue Field’s dumping margin 

consistent with the surrogate values Commerce assigns to Blue Field’s rice straw and cow 

manure inputs on remand; it is further 
Court No. 12-00320 Page 34 

ORDERED that Commerce shall have ninety (90) days from the date of this Opinion and 

Order in which to file its Remand Redetermination, which shall comply with all directives in this 

Opinion and Order; that the Plaintiff and Defendant-Intervenor shall have thirty (30) days from 

the filing of the Remand Redetermination in which to file comments thereon; and that the 

Defendant shall have thirty (30) days from the filing of Plaintiff and Defendant-Intervenor’s 

comments to file comments. 

/s/ Richard W. Goldberg 

Richard W. Goldberg 

Senior Judge

Dated: November 14, 2013 

New York, New York