Haixing Jingmei Chemical Products Sales Co., Ltd. v. United States

Slip Op. 18-129
UNITED STATES COURT OF INTERNATIONAL TRADE
HAIXING JINGMEI CHEMICAL
PRODUCTS SALES CO., LTD.,
Plaintiff,
v.
UNITED STATES,
Defendant,
and
ARCH CHEMICALS, INC.,
Defendant-Intervenor.
Before: Mark A. Barnett, Judge
Court No. 16-00259
PUBLIC VERSION
OPINION
[Sustaining the U.S. Department of Commerce’s Remand Results rescinding the new
shipper review of Haixing Jingmei Chemical Products Sales Co., Ltd.]
Dated: September 26, 2018
Gregory S. Menegaz, J. Kevin Horgan, and Alexandra H. Salzman, deKieffer & Horgan,
PPLC, of Washington, DC, for Plaintiff. With them on the brief was Judith L.
Holdsworth.
Joshua E. Kurland, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, for Defendant. With him on the brief were
Chad A. Readler, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and
Patricia M. McCarthy, Assistant Director. Of counsel on the brief was Jessica DiPietro,
Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S.
Department of Commerce, of Washington, DC.
Peggy A. Clarke, Law Offices of Peggy A. Clarke, of Washington, DC, for Defendant-
Intervenor.
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Barnett, Judge: This matter is before the court following the U.S. Department of
Commerce’s (“Commerce” or the “agency”) redetermination upon remand. See Final
Results of Redetermination Pursuant to Court Remand (“Remand Results”), ECF No.
50. Plaintiff, Haixing Jingmei Chemical Products Sales Co. (“Plaintiff” or “Jingmei”),
initiated this action challenging Commerce’s final determination to rescind the 2014-
2015 new shipper review of the antidumping duty order on calcium hypochlorite from
the People’s Republic of China (“PRC”). See Calcium Hypochlorite from the People’s
Republic of China, 81 Fed. Reg. 83,804 (Dep’t Commerce Nov. 22, 2016) (final decision
to rescind the new shipper review of Haixing Jingmei Chemical Products Sales Co.,
Ltd.) (“Final Rescission”), ECF No. 18-4, and the accompanying Issues and Decision
Mem., A-570-008 (Nov. 14, 2016) (“I&D Mem.”), ECF No. 18-5. 1 Plaintiff argued that
Commerce’s rescission of the new shipper review due to purportedly insufficient
information to conduct a bona fide analysis of Plaintiff’s sales during the July 25, 2014,
through June 30, 2015 period of review (“POR”) was unsupported by substantial
evidence. See generally, Haixing Jingmei Chem. Prods. Sales Co., Ltd Mot. for J. on
1 The administrative record in connection with the Final Rescission is divided into a
Public Administrative Record (“PR”), ECF No. 18–3, and a Confidential Administrative
Record (“CR”), ECF No. 18–2. Parties submitted joint appendices containing record
documents cited in their United States Court of International Trade Rule 56.2
briefs. See Public J.A. (“PJA”), ECF No. 37; Confidential J.A. (“CJA”), ECF No. 36. The
administrative record associated with the Remand Results is contained in a Public
Remand Record (“PRR”), ECF No. 51-2 at 2, and a Confidential Remand Record
(“CRR”), ECF No. 51-2 at 1. Parties further submitted joint appendices containing
record documents cited in their Remand briefs. See Public J.A. to Remand
Proceedings (“PRJA”), ECF No. 63; Confidential J.A. to Remand Proceedings (“CRJA”),
ECF No. 62. References are to the confidential versions of the relevant record
documents unless stated otherwise.
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the Agency R., ECF No. 22, and Confidential Mem. in Supp. of Mot. for J. on the
Agency R., ECF No. 23.
On December 5, 2017, the Court remanded the Final Rescission, holding that
Commerce’s rescission due to insufficient information to conduct a bona fide analysis of
Plaintiff’s sales was not supported by substantial evidence in light of the agency’s
statutory authority to use facts available, with or without an adverse inference, to fill any
asserted gaps in the record. See Haixing Jingmei Chem. Prod. Sales Co., Ltd. v.
United States, 41 CIT ___, 277 F. Supp. 3d 1375, 1382-83 (2017). 2 The court ordered
Commerce “to determine whether the sales in question were bona fide,” so that “the
court will be in a better position to evaluate whether that redetermination is supported by
substantial evidence and otherwise in accordance with law.” Id. at 1384.
In its Remand Results, Commerce used facts available with an adverse inference
(sometimes referred to as “adverse facts available” or “AFA”) to determine whether
Jingmei’s sales were indicative of bona fide transactions. See Remand Results at 13-
14, 30, 52. Based on the totality of the circumstances, Commerce concluded that
Jingmei’s sales were not bona fide and, therefore, rescission of the new shipper review
was appropriate. See id. at 1-2. Jingmei now challenges Commerce’s Remand Results
as unsupported by substantial evidence. See Confidential Pl. Haixing Jingmei Chem.
Prods. Sales Co., Ltd. Comments in Opp’n to U.S. Dep’t of Commerce’s Remand
Redetermination (“Pl.’s Opp’n Cmts”), ECF No. 52. The United States (“Defendant” or
“Government”) and Defendant-Intervenor, Arch Chems. Inc., support Commerce’s
2 The court’s opinion in Haixing Jingmei, 277 F. Supp. 3d at 1375, presents further
background information on this case, familiarity with which is presumed.
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Remand Results. See Confidential Def.’s Resp. to Pl.’s Comments on the Dep’t of
Commerce’s Remand Results (“Def.’s Supp. Cmts”), ECF No. 60; Confidential Def-Int.
Arch Chems., Inc. Br. in Resp. to Pl.’s Comments on Agency Redetermination Upon
Remand, ECF No. 58 (“Def.-Int.’s Supp. Cmts”). For the following reasons, the court
sustains the Remand Results.
JURISDICTION & S TANDARD OF REVIEW
The court has jurisdiction pursuant to § 516A(a)(2)(B)(iii) of the Tariff Act of 1930,
as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2012), 3 and 28 U.S.C. § 1581(c) (2012).
The court will uphold an agency’s determination that is supported by substantial
evidence on the record and otherwise in accordance with law. 19 U.S.C.
§ 1516a(b)(1)(B)(i). “The results of a redetermination pursuant to court remand are also
reviewed for compliance with the court’s remand order.” SolarWorld Americas, Inc. v.
United States, 41 CIT ___, ___, 273 F. Supp. 3d 1314, 1317 (2017) (quoting Xinjiamei
Furniture (Zhangzhou) Co. v. United States, 38 CIT ___, ___, 968 F. Supp. 2d 1255,
1259 (2014) (internal quotation marks omitted).
3 Citations to the Tariff Act of 1930, as amended, are to the relevant portions of Title 19
of the U.S. Code, 2012 edition. Citations to 19 U.S.C. §§ 1675 and 1677e, however,
are to the 2016 U.S. Code edition, which reflects amendments to § 1675 pursuant to the
Trade Facilitation and Trade Enforcement Act of 2015, Pub. L. No. 114–125, § 433, 130
Stat. 122 (2016), and amendments to § 1677e pursuant to the Trade Preferences
Extension Act of 2015, Pub. L. No. 114–27, § 502, 129 Stat. 362, 383–84 (2015).
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DISCUSSION
I. 	Legal Framework
a. 	New Shipper Reviews
Pursuant to 19 U.S.C. § 1675(a)(2)(B)(i), when Commerce receives a request
from a new exporter or producer who did not export merchandise subject to an
antidumping duty order to the United States during the period of investigation, and is not
affiliated with any exporter or producer that did export, Commerce must conduct a
review to establish an individual weighted-average dumping margin for that exporter or
producer. Commerce must determine any weighted-average dumping margin solely on
the basis of bona fide sales to the United States during the period of review. See 19
U.S.C. § 1675(a)(2)(B)(iv). Commerce determines whether the sales are bona fide by
considering, “depending on the circumstances surrounding such sales,” the following
factors:
(I) the prices of such sales; (II) whether such sales were made in
commercial quantities; (III) the timing of such sales; (IV) the expenses
arising from such sales; (V) whether the subject merchandise involved in
such sales was resold in the United States at a profit; (VI) whether such
sales were made on an arms-length basis; and (VII) any other factor the
administering authority determines to be relevant as to whether such sales
are, or are not, likely to be typical of those the exporter or producer will
make after completion of the review.
19 U.S.C. § 1675(a)(2)(B)(iv).
In the absence of “an entry and sale to an unaffiliated customer in the United
States of subject merchandise,” Commerce may rescind the review. 19 C.F.R.
§ 351.214(f)(2)(i). A sale that Commerce “determines not to be a bona fide sale is, for
purposes of [§ 351.214(f)(2)], not a sale at all.” Shijiazhuang Goodman Trading Co.,
Ltd. v. United States, 40 CIT ___, ___, 172 F. Supp. 3d 1363, 1373 (2016). Thus, if
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Commerce excludes all subject sales as non-bona fide, it “necessarily must end the
review, as no data will remain on the export price side of Commerce’s antidumping duty
calculation.” Tianjin Tiancheng Pharm. Co., Ltd. v. United States, 29 CIT 256, 259, 366
F. Supp. 2d 1246, 1249 (2005).
b. Facts Available with an Adverse Inference
When “necessary information is not available on the record,” or an interested
party “withholds information” requested by Commerce,” “fails to provide” requested
information by the submission deadlines, “significantly impedes a proceeding,” or
provides information that cannot be verified pursuant to 19 U.S.C. § 1677m(i),
Commerce “shall . . . use the facts otherwise available.” 19 U.S.C. § 1677e(a). 4
Additionally, if Commerce determines that the party “has failed to cooperate by not
acting to the best of its ability to comply with a request for information,” it “may use an
inference that is adverse to the interests of that party in selecting from among the facts
otherwise available.” Id. § 1677e(b). “Compliance with the ‘best of its ability’ standard
is determined by assessing whether a respondent has put forth its maximum effort to
provide Commerce with full and complete answers to all inquiries in an investigation.”
Nippon Steel Corp. v. United States, 337 F.3d 1373, 1382 (Fed. Cir. 2003).
II. 	Commerce’s Individual Findings in the Remand Results
In the Remand Results, Commerce conducted a bona fide analysis of the two
sales subject to the new shipper review by evaluating the factors enumerated in 19
4 Commerce’s authority to use the facts otherwise available is subject to 19 U.S.C.
§ 1677m(d). See 19 U.S.C. § 1677e(a).
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U.S.C. § 1675(a)(2)(B)(iv). 5 See Remand Results at 12-48. In so doing, the agency
“rel[ied], in part, on adverse inferences with respect to [its] interpretation of the facts
available and thus, some of the weight [it] put on the record evidence [was] affected by
the parties’ lack of cooperation and adverse inferences.” Id. at 13-14; see also id. at 30.
Commerce specifically found that Jingmei, Company X, and Company Y failed to
cooperate by not acting to the best of their ability to comply with Commerce’s request
for critical information necessary to determine whether the sales were bona fide. See
id. at 6-11, 29, 50.
Commerce explained that, at the onset of the review, it issued a standard new
shipper review questionnaire to Plaintiff, requesting information specific to the importer
of the subject merchandise, including the importer’s history, organization, ownership,
and affiliations; sales during the POR; other purchases of subject merchandise; and
resale of the merchandise. Id. at 6 & n.31 (citing Initial Questionnaire (Aug. 26, 2015),
CRJA 4, PRJA 4, PR 9-11, ECF No. 62). The questionnaire directed Plaintiff to answer
the questions, or, if Plaintiff was unable to fully respond, to forward the questionnaire to
Company X and include Company X’s answers in Plaintiff’s response. See id. at 6-7 &
nn.33-34 (citing Initial Questionnaire, App. IX; Section A Resp. (Sep. 16, 2015) (“Sec. A
Resp.”) at 22, CJRA 5, CR 6-8, PJRA 5, PR 14-15, ECF No. 62). Commerce later
requested the same categories of information from Company Y. See id. at 7-8. “The
5 The sales involved Haixing Eno Chemical Co., Ltd. (“Eno”), as producer, and Jingmei
as seller. See Remand Results at 2. Jingmei sold the calcium hypochlorite to [[
]], a [[ 	]] based wholesaler of swimming pool
supplies—denoted here for confidentiality purposes as Company X—who then sold the
merchandise to [[ 	]], a U.S. customer—denoted here
for confidentiality purposes as Company Y. Id.
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purpose of this information [was] to provide Commerce with the facts needed to analyze
the statutory factors of [§1675(a)(2)(B)(iv)].” Id. at 6.
Both Company X and Company Y failed to provide all the requested information,
asserting that the information they withheld was confidential. See id. at 7-8 & nn.38-39
(citing Suppl. Section A Questionnaire Resp. (Dec. 28, 2015) (“Suppl. Sec. A Resp.”) at
21, CJRA 11, CR 37-40, PJRA 11, PR 38, ECF No. 62; Customer’s Suppl.
Questionnaire Resp. (Dec. 28, 2015) (“U.S. Customer Resp.”) at 3, CJRA 12, CR 41,
PJRA 12, PR 39, ECF No. 62). Commerce cited eight other questionnaires requesting
those and other categories of information that it deemed necessary to conduct its bona
fide analysis. Id. at 6 n.32 (citations omitted). “In light of the repeated refusals of
[Company X] and [Company Y] to provide vital requested information, Commerce
advised Jingmei in a supplemental questionnaire that the requested information [was]
necessary for Commerce’s analysis[,] and encouraged complete responses to [the
agency’s] request for information.” Id. at 8 & n.41 (citing Suppl. Section A, C, and
Customer Questionnaire (Mar. 28, 2016) (“Suppl. A, C & Customer Q”), Attach. I, CJRA
15, CR 50, PJRA 15, PR 84, ECF No. 62). The agency further informed Company X
and Company Y of the need for the information and that their failure to comply with
Commerce’s requests may affect the agency’s determination as to the bona fide nature
of the sales. Id. at 8 & n.42 (citing Suppl. A, C & Customer Q, Attachs. II and III). 	To
alleviate their confidentiality concerns, Commerce advised the companies that their
proprietary information would be protected by an administrative protective order. Id. at
8-9 & n.43 (citing Suppl. A, C & Customer Q, Attachs. II and III). In response, both
Company X and Company Y either “explicitly refused” to provide certain requested
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information, or provided “limited responses, limited documentation, or no answers at all”
to other requests for information. See id. at 9-11.
Commerce provided detailed discussion, with citations to the record, of those
refusals and deficiencies. See id. at 9-11 & nn.44-56 (citations omitted). Commerce
further explained that after receipt of the deficient responses, the agency asked Plaintiff
to describe and document its efforts to ensure full cooperation from Company X and
Company Y. See id. at 11 & n.57 (citing Suppl. Questionnaire Resp. (Apr. 20, 2016)
(“April 20 Suppl. Resp.”) at 1-2 & Ex. SQ8-1, CJRA 19, CR 60, PJRA 19, PR 94, ECF
No. 62). Plaintiff responded, stating that it asked for full cooperation from those
companies, “but because these downstream customers are not affiliated with Jingmei,
Jingmei has no control over them and only has a business buyer-seller relationship with
the companies.” Id. at 11 & n.58 (quoting April 20 Suppl. Resp. at 1). Plaintiff produced
e-mail communications with Company X documenting its efforts to encourage it and
Company Y to provide complete responses. 	See April 20 Suppl. Resp., Ex. SQ8-1. 6
Under these circumstances, and in light of the fact that Company X was the importer
who purportedly paid the import duties, the agency found that Jingmei, Company X, and
Company Y “failed to provide critical information” requested by the agency that was
necessary to determine whether the sales subject to the new shipper review were bona
6 Commerce summarized the email correspondence as follows:
In this email correspondence, Jingmei requests that [Company X] and
[Company Y] provide all of the documentation requested by Commerce.
[Company X] responds to Jingmei stating that they [[
]]. Jingmei responds to [Company X] stating that
it [[
]].
Id. at 29 & nn.136-138 (citing April 20 Suppl. Resp., Ex. SQ8-1).
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fide. See Remand Results at 6-11, 28-29. Using the available record information and
relying, in part, on adverse inferences, Commerce made the following findings.
i. 	Price and quantity of the sales
Commerce found that the price and quantity factors of § 1675(a)(2)(B)(iv)(I) and
(II) weighed against a finding that Jingmei’s sales were bona fide. See id. at 16. In
reaching this determination, Commerce relied on facts available because Jingmei and
its customers did not provide “sufficient, objective, verifiable evidence” to demonstrate
that Jingmei’s sales were reflective of its usual commercial practices and indicative of
Jingmei’s prices and quantities in which it would sell the subject merchandise in the
future. Id. at 16. The missing evidence to which Commerce referred included: a list of
companies from which Company X purchased subject merchandise during the POR,
including the date, quantity, and value of each purchase; a list from Company Y of
downstream customers to whom it sold the merchandise subject to the review; and
documentation from Company Y related to any purchases of subject merchandise it
made from Company X subsequent to the purchases covered by the review. Id. at 15;
see also id. at 36-38 (discussing insufficiency of the information that Company X
provided). Commerce had requested this information from Company X and Company
Y, but neither company supplied it. 7 	Id. at 15 & nn.70-71 (citing Sec. A Resp. at 26;
U.S. Customer Resp. at 3).
7 In response to Commerce’s request for price information, Company X stated: “it
confirmed that the prices [] from Jingmei were within the normal range of our prices from
other suppliers.” Id. at 15 (citing Sec. A Resp. at 26). Commerce found this statement
unsubstantiated by record evidence. Id. at 16.
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The facts available that Commerce considered were Jingmei’s reported gross
unit prices, which differed in value, for the two sales. Id. at 15-16 & n.73 (citing Suppl.
Section C Questionnaire Resp. (Dec. 23, 2015) (“Suppl. Sec. C Resp.”) at 5, CJRA 10,
CR 30-5, PJRA 10, PR 35-36, ECF No. 62). Commerce rejected a contention by
Jingmei that its first sale should be understood as a sample sale, explaining that
Jingmei’s assertion was contradicted by Jingmei’s initial questionnaire response and
otherwise unsupported by record evidence. See id. at 39-40. Furthermore, Jingmei’s
explanation for the price difference provided one basis for Commerce to question
whether the two sales were typical transactions for, or indicative of future sales by,
Jingmei. Id. at 16. 8 Based on its findings on a failure to cooperate by all three
companies, Commerce used an adverse inference, and concluded that these factors
weighed against a finding that the sales were bona fide. See id. at 16 & n.80 (citing,
inter alia, 19 U.S.C. § 1677e(b)).
ii. 	Timing
Commerce next analyzed the timing factor of § 1675(a)(2)(B)(iv)(III) and
determined that the timing of payment by Company X to Jingmei for the subject sales
suggested that the sales were not bona fide. See id. at 18-19. Specifically, Commerce
examined the payment terms for both sales and noted that Company X’s payments
were 15 and 75 days late, respectively. Id. at 18 & nn.93-96 (citing Jingmei’s Corrected
Req. for New Shipper Review (July 20, 2015) (“NSR Req.”) at Ex. 2, CJRA 2, CR 2,
PJRA 2, PR 2, ECF No. 62; Suppl. Sec. C Resp. at 4; Sec. A Resp. at Ex. A-7; Suppl.
8 For the first sale, Jingmei “offered a [[ 	]] for marketing purposes,”
id. at 15 & n.74 (citing Suppl. Sec. C Resp. at 5), which indicated to Commerce that “the
second [[ 	]],” id. at 16.
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Sec. A Resp. at Ex. SQ1-6). The record lacked evidence indicating that Jingmei made
an attempt to collect the late payments. Id. at 19. Commerce explained that although
late payment alone may not indicate that a sale is not bona fide, the payment variance
and the lack of collection efforts from Jingmei indicated that the sales were not bona
fide. Id. at 19; see also id. at 40-42.
iii. 	Expenses Arising from the Sales
Pursuant to § 751(a)(2)(B)(iv)(IV), Commerce considered the expenses related to
Jingmei’s sales, and whether those expenses were consistent with the terms of sale, to
determine whether they conformed to Jingmei’s typical sales practice. Id. at 19.
Commerce explained that, to conduct its analysis, it required documentation supporting
the amount and payment of each expense, and documentation linking the expense
payment to both the sale and the paying company’s books and records. Id. Commerce
further explained that, despite multiple requests by the agency, Company X and
Company Y did not provide necessary information in the form and manner requested.
Id. Specifically, Commerce lacked “substantial information and documentation
necessary to substantiate the purported sales terms,” and to demonstrate which party
incurred expenses associated with foreign inland freight, brokerage, and handling;
international freight; and import duties, among others. 9 Id. Accordingly, the agency
9 Another unsubstantiated expense was [[ 	]]. Id. at 19. Jingmei asserted that,
pursuant to the terms of sale, Company Y [[
]] from a supplier, who then delivered them directly to Eno for packaging the
subject merchandise. Id. at 21 & n.107 (citing Suppl. Sec. A Resp. at 22-23; Suppl.
Section A and C Questionnaire Resp. (Apr. 11, 2016) (“Suppl. Sec A&C Resp.”) at 11,
CJA 18, CR 54-59, PJA 18, PR 92, ECF No. 36-1). Commerce requested Company Y
to provide purchase orders and commercial invoices demonstrating the purchase of the
[[ 	]], accounting records demonstrating where these purchases were
recorded in Company Y’s accounting system, and images of the [[ 	]],
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used facts available, with an adverse inference, to determine whether the sales-related
expenses were indicative of bona fide transactions. Id. at 19-20. Commerce concluded
that this factor weighed against a finding that the sales are bona fide. Id. at 24.
Commerce provided detailed analysis of each expense, as follows.
Regarding foreign inland freight, brokerage, and handling expenses, Company X
had submitted limited invoices for these expenses, and failed to provide “financial
ledgers showing the booked payment for these expenses.” Id. at 20 & n.103 (citing
Suppl. Sec. A&C Resp. at 9 & Ex. SQ7-7). 10 Furthermore, Commerce found that
Jingmei’s reporting of the sales terms was inconsistent with what was provided in the
PRC’s customs declaration documents. See id. at 20, 24. 11 Commerce further found
that Jingmei’s explanation for the inconsistencies, which suggested that Jingmei had no
other option but to report the sale term inconsistently in the PRC’s customs declaration
including “clear images of the labels affixed to each.” Id. at 21 & n.108 (citing Suppl.
Sec A&C Resp. at 11). Company Y did not provide a purchase order for the [[
]] related to the first sale, accounting records as requested by Commerce, or
commercial invoices. See id. at 22 & n.110 (citing Suppl. Sec A&C Resp. at 11).
Company Y provided an image of a [[ 	]], which showed the contents to
be [[ 	]], whereas the product purportedly sold in the [[
]] was reported to Commerce as [[ 	]]. Id. at 22
& n.109 (citing, inter alia, Suppl. Sec A&C Resp. at Ex. SQ7-11 (photograph of the
packaging)); see also id. at 43. Commerce found it unusual that Company Y provided
selective information in response to Commerce’s requests, and further determined that
the lack of financial ledgers to demonstrate payment for the expenses impeded the
agency’s ability to substantiate them. Id. at 22.
10 Company X submitted [[ 	]] of [[ 	]] requested invoices. Id. at 20. The [[ 	]] it
provided simply showed that Company X was invoiced for foreign movement services
by another company for one of the subject sales. Id. at 20 & n.103 (citing Suppl. Sec
A&C Resp. at 9, Ex. SQ7-7).
11 In its questionnaire response, Jingmei reported that the sales to Company X were
[[ 	]]; in the PRC customs declaration documents, Jingmei reported the sales terms
were [[ 	]]. Id. at 20 & n.101 (citing Suppl. Sec. A Resp. at 3-4); id. at 24 & n.118
(citing Suppl. Sec. C Resp. at 8, Ex. SQ3-7).
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documents, was unsupported by record evidence. See id. at 24 & n.119 (citing Suppl.
Sec. C Resp. at 8 & Ex. SQ3-7). Therefore, Commerce found that the parties’ claims
with respect to the sales terms and which party incurred certain expenses were
unverifiable and unreliable. Id. at 24.
With respect to international freight, Company X had reported to Commerce that
Company Y was responsible for this expense for both sales. Id. at 20 & n.104 (citing
Suppl. Sec. A Resp. at 22). 12 Commerce instructed Company Y to “provide a narrative
description of all freight expenses paid,” and to provide supporting accounting
documentation showing that payment of these expenses was recorded in Company Y’s
accounting system. Id. at 21 & n.105 (citing Suppl. Sec. A&C Resp. at 12). In
response, Company Y stated that it “paid the ocean freight” for one of the sales, and
submitted an ocean freight invoice, which, Commerce found, lacked sufficient
information to establish that the invoice was associated with the merchandise subject to
the review. Id. at 21 & n.106 (citing Suppl. Sec. A&C Resp. at 12 & Ex. SQ7-12).
Specifically, although the invoice contained a bill of lading number that matched the
ocean bill of lading and the U.S. Customs and Border Protection (“CBP”) Form Entry
Summary, the weight of the merchandise as listed in those documents did not
correspond to the weight listed in Jingmei’s commercial invoice for this sale. Id. at 42 &
n.208 (citing NSR Req., Ex. 2). Moreover, Commerce was unable to substantiate the
12 Company X reported that it sold to Company Y on [[ 	]], and that
Company Y was responsible for [[ 	]] associated with the first sale, and [[
]] for the second sale. Id. at 20 & n.104 (citing Suppl. Sec. A
Resp. at 22).
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payment for international freight expenses because Company Y “did not provide
financial ledgers showing the booked payment for these expenses.” Id. at 21.
With respect to import duties, Company X had purportedly paid those expenses
for both sales. Id. at 22 & n.111 (citing Suppl. Sec. A&C Resp. at 9). Commerce
instructed Company X to submit documentation demonstrating payment of import
duties, including broker invoices, accounting vouchers, and expense ledgers. Id. at 22
& n.112 (citing Suppl. Sec. A&C Resp. at 9). The information that Company X
provided—namely, broker invoices and what Commerce deemed insufficient payment
documentation—merely showed that “[Company X] was invoiced for import duties.” Id.
at 23. The payment documentation was insufficient because it comprised of “two partial
screenshots from a banking website” that “[did] not identify the remitter and [did] not
appear to be a final transaction confirmation.” Id. at 22-23 & n.113 (citing Suppl. Sec.
A&C Resp., Ex. SQ7-8); see also id. at 44. Because Commerce was missing financial
ledgers showing the payment of the import duties, it could not substantiate payment of
this expense. Id. at 23. Furthermore, Commerce found it unusual that “Company X’s
purported payments of import duties alone [were] significantly greater than the total
value of the sales.” Id. at 23; see also id. at 24 & nn.116-117 (citing Sec. A Resp., Ex.
7; Suppl. Sec. A Resp., Ex. SQ-6; Suppl. Sec. A&C Resp., Ex. SQ7-8). 13
13 For the first sale, Company X paid Jingmei [[ 	]] and purportedly paid
[[ 	]] in import duties, and received payment in the amount of [[ 	]] from
Company Y. 	Id. at 23-24 & nn.116-117 (citing Sec. A Resp., Ex. 7; Suppl. Sec. A
Resp., Ex. SQ1-6; Suppl. Sec. A&C Resp., Ex. SQ7-8). For the second sale, Company
X paid Jingmei [[ 	]] and purportedly paid [[ 	]] in import duties, while
it only received [[ 	]] from Company Y. Id. at 24 & n.117 (citing same).
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iv. 	Whether the Merchandise was Resold at a Profit
The agency explained that when conducting new shipper reviews, it “requires
parties to provide detailed information on the importer’s purchases and ongoing
commercial operations to analyze whether the subject merchandise was resold at a
profit.” Id. at 25 & n.120 (citing Foshan Nanhai Jiujiang Quan Li Spring Hardware
Factory v. United States, 37 CIT ___, ___, 920 F. Supp. 2d 1350, 1359-60 (2013)).
Because the record also lacked sufficient documentation supporting the sales-related
expenses, which would affect the profit analysis, Commerce considered facts available
with an adverse inference. See id. at 25. With respect to Company Y’s disposition of
the merchandise in the United States, Commerce had requested documentation
demonstrating resale of the subject merchandise, but Company Y provided only two
sample resale invoices and payment documentation associated with those invoices.
See id. at 26 & n.122 (citing Suppl. Sec. A&C Resp. at 12 & Ex. SQ7-13). Commerce
thus determined that the record lacked “objective evidence to substantiate whether the
subject merchandise was resold in the United States at a profit,” which weighed against
a finding that the sales were bona fide. Id. at 26; 14 see also id. at 44-45.
v. 	Whether the Sales Were Made on an Arms-Length Basis
In conducting its analysis pursuant to § 1675(a)(2)(B)(iv)(VI), Commerce stated
that it considered the relationship between Jingmei, Company X, and Company Y;
evidence of price negotiations; the terms of sale, and other circumstances surrounding
14 Commerce noted that Company Y’s “failure to provide all resale invoices for at least
the [[ 	]] is not a consequence of that merchandise remaining in
inventory, [because Company Y] had stated that such merchandise was sold out.” Id. at
26 & n.123 (citing Suppl. Sec. A&C Resp. at 11-12).
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the sales. See id. at 26. Commerce found that there was a lack of necessary
information on the record to substantiate the parties’ claims that they are unaffiliated,
indicating that “Jingmei has not demonstrated that the sales were made at arm’s
length.” Id.
vi. 	Additional Factors
In addition to the foregoing, Commerce cited additional factors—the discrepancy
in packaging labels, gross weight discrepancies in shipping documents, and the
deficient questionnaire responses notwithstanding the potential financial incentive for
establishing the bona fide nature of the sales—as suggestive that the sales were not
bona fide. See id. at 27-29; see also id. at 45-48.
III. 	Commerce’s Remand Results Are Sustained
The court ordered Commerce, on remand, “to determine whether the sales in
question were bona fide,” so that “the court will be in a better position to evaluate
whether that redetermination is supported by substantial evidence and otherwise in
accordance with law.” Haixing Jingmei, 277 F. Supp. 3d at 1384. On remand,
Commerce conducted its bona fide analysis by evaluating the statutory factors pursuant
to 19 U.S.C. § 1675(a)(2)(B)(iv), and has therefore complied with the court’s remand
order. As noted, Commerce applied, in part, an adverse inference in filling gaps in the
record. Plaintiff now challenges the legality of Commerce’s action and the supportability
of the agency’s individual findings.
Overall, the court has little difficulty finding that substantial evidence supports
Commerce’s use of adverse inferences in evaluating certain record evidence and
concluding that the sales in question were not bona fide. With respect to the statutory
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criteria, the record did not contain complete information in response to the agency’s
request for documentation supporting an affirmative bona fide sale conclusion. Most
notably, while there are various, sometimes inconsistent claims as to which party paid
certain expenses, there is no proof of payment by any party for many of those
expenses. Proper allocation of the expenses is critical for the agency to determine the
profitability of the resale, the likelihood of the transaction being representative of future
transactions, and if the review had gone forward, the correct calculation of the dumping
margin. As discussed further below, Jingmei’s inability to secure and provide this
information, whether directly or indirectly, and failure to demonstrate any effort to obtain
this necessary information beyond a single email communication to one of the two
downstream customers adequately supports Commerce’s decision to use adverse
inferences when filling the gaps in the record.
Plaintiff asserts that, in applying an adverse inference, Commerce “create[d] a
fiction that Jingmei is somehow related to its customers,” and violated 19 U.S.C.
§ 1677e(b) by attributing the failure of Company X and Company Y to Jingmei, rather
than finding that Jingmei itself failed to cooperate by not acting to the best of its ability to
comply with Commerce’s requests for information. Pl.’s Opp’n Cmts at 2-3. According
to Plaintiff, the record does not support the existence of an affiliation between Jingmei
and its downstream customers to warrant the application of adverse inferences against
Jingmei based on its customers’ conduct. See id. at 3-10, 13. Plaintiff advocates that
the agency “cannot punish [a] cooperating part[y],” such as Jingmei, who documented
its efforts to urge full cooperation from its customer and downstream customers, but
lacked any control over them to secure full compliance. See id. at 11-12 (citing Shantou
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Red Garden Foodstuff Co. v. United States, 36 CIT ___, ___, 815 F. Supp. 2d 1311,
1323 (2012); SKF USA Inc. v. United States, 33 CIT 1866, 1875-1877, 675 F. Supp. 2d
1264, 1274-1275 (2009)).
Throughout these arguments, Jingmei mischaracterizes Commerce’s adverse
facts available determination as premised on a finding of affiliation between Jingmei,
Company X, and Company Y. To the contrary, Commerce explained, on multiple
occasions, that it based its non-bona fide sales determination on a finding that Jingmei,
its customer, and the downstream customer failed to cooperate to the best of their
abilities, including by failing to establish that the transactions in question occurred at
arm’s length. See Remand Results at 6-11, 13, 29, 50. Record evidence upon which
Commerce relied supports the agency’s finding. See supra pp. 7-9; see also Remand
Results at 7-11. When confronted with multiple deficient responses, Commerce
communicated to each company the agency’s need for the requested information and
the availability of an administrative protective order by which the companies could
maintain the confidentiality of any business proprietary information; it also warned that
the companies’ failure to provide the information may adversely affect the new shipper
review. See Suppl. A, C & Customer Q, Attach. I at 6; id., Attach. II at 7; id., Attach. III
at 9. At the same time, Commerce instructed Jingmei to “ensure that the intended
parties provide the requested information. . . . If we do not receive complete responses
to our requests for information or we determine that your efforts to obtain the
information was not sufficient we may use adverse facts available.” 	Suppl. A, C &
Customer Q, Attach. I at 6. Nevertheless, Company X and Company Y provided
incomplete information—including limited invoices, purchase orders, sales listings,
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accounting vouchers, and expense ledgers—and expressly refused to provide other
documentation. See Remand Results at 9-11 & nn.44-56 (discussing Suppl. Sec. A&C
Resp. at 8-9, 11-13 & Exs. SQ7-6, SQ7-7, SQ7-8, SQ7-11, SQ7-13, SQ7-14). “To the
extent that information responsive to Commerce’s request was business proprietary,
[these companies] could have supplied a public summary or included it as confidential
business proprietary information.” Shanghai Sunbeauty Trading Co., Ltd. v. United
States, 42 CIT __, Slip Op. 18-111 at 30 (Sept. 6, 2018) (citing 19 C.F.R.
§ 351.304(c)(1)).
Although Plaintiff attempted to persuade the agency that it undertook efforts to
ensure full cooperation from its customer and the downstream customer, its efforts were
not enough. See Remand Results at 29. Plaintiff’s e-mail communication showed that
Jingmei contacted Company X to request cooperation from both Company X and its
downstream customer, Company X explained its reasons for declining to do so, and
Jingmei did not inquire further. See April 20 Suppl. Resp., Ex. SQ8-1. 15 Jingmei’s
efforts here do not constitute the “maximum effort” that the “best of its ability” standard
requires. See Nippon Steel, 337 F.3d at 1382. In light of Commerce’s warning to all
parties that failure to provide requested information may affect Commerce’s
determination as to the bona fide nature of the sales subject to this review, and the lack
of further efforts on Jingmei’s part to secure full cooperation, Commerce reasonably
concluded that Jingmei, in addition to Company X and Company Y, failed to act to the
best of its ability.
15 Instead of undertaking further efforts to ensure cooperation, Jingmei responded to
Company X that it [[
]]. See April 20 Suppl. Resp., Ex. SQ8-1.
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Plaintiff’s reliance on Shantou Red Garden, 815 F. Supp. 2d at 1323, and SKF
USA Inc., 33 CIT at 1875-1877, 675 F. Supp. 2d at 1274-1275, to challenge the
agency’s reasonable determination is misplaced. See Pl.’s Opp’n Cmts at 11-12. In
Shantou, Commerce used an adverse inference based on a finding that the respondent
failed to act to the best of its ability to comply with an information request, which the
court determined was never communicated to the respondent. See 815 F. Supp. 2d at
1316-1319. Therefore, the respondent’s failure to take actions that the agency never
requested did not support a finding of a lack of cooperation pursuant to § 1677e(b).
See id. at 1319. Unlike in Shantou, Commerce communicated its requests to Jingmei
and made the affirmative finding that Jingmei failed to cooperate to the best of its ability
to comply with those requests. SKF USA Inc. is likewise distinguishable. In SKF USA
Inc., Commerce used an unaffiliated supplier’s failure to cooperate to affect adversely
the dumping margin of a respondent “about whom Commerce did not make a finding of
non-cooperation.” Id. at 1878 (emphasis omitted); see also id. 1876-78. Commerce
specifically selected a rate that was, and was intended to be, adverse to that
respondent. See id. at 1877. In contrast to SKF USA Inc., here, Commerce found that
Jingmei itself failed to cooperate to the best of its ability. See, e.g., Remand Results at
51. Commerce applied the adverse inference in weighing the available evidence
concerning the price, quantity, and expenses of the sales and in determining whether
the sales were resold at a profit. See Remand Results at 13-14, 16 & n.80, 19-20, 25.
Subsequent to SKF USA Inc., the U.S. Court of Appeals for the Federal Circuit
held that Commerce is not barred, under appropriate circumstances, “from drawing
adverse inferences against a non-cooperating party that have collateral consequences
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for a cooperating party.” Mueller Comercial de Mexico, S. de R.L. de C.V. v. United
States, 753 F.3d 1227, 1236 (Fed. Cir. 2014). Therein, the court held that Commerce
may rely on inducement or deterrence considerations in determining a weighted-
average dumping margin for a cooperating party “as long as the application of those
policies is reasonable on the particular facts and the predominant interest in accuracy is
properly taken into account.” Id. at 1233. There were no cooperating parties in this
case and Commerce did not articulate that it was relying on an inducement rationale to
reach its AFA determination. As stated above, however, Commerce noted Company
X’s status as the importer purportedly responsible for paying the import duties,
Jingmei’s lack of further efforts to induce cooperation from Company X and Company Y,
and the agency’s need for accurate information in making its bona fide determinations.
See Remand Results at 3, 22-24, 29, 44. Thus, Commerce was guided by some of the
principles articulated in Mueller, and that case further undermines Plaintiff’s argument
that Commerce was not permitted to rely on adverse inferences in interpreting the
available information on the record.
Furthermore, the present case concerns a new shipper review, and the relevant
statute requires Commerce to examine the companies on both sides of the transaction
to ensure that the sales in question are bona fide. The statutory requirement that the
U.S. sales must be bona fide was a response to concerns about the reported abuse of a
previous provision in the statute permitting an importer to post a bond, in lieu of cash
deposits, to serve as security for the future payment of antidumping duties until the
completion of the new shipper review. Haixing Jingmei, 277 F. Supp. 3d at 1381-82 &
n.7. Thus, the law’s requirement that Commerce conduct the bona fide analysis is
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intended to ensure that companies are legitimate business entities, and on the importer
end, not simply chosen to “enter into a scheme to structure a few sales to show little or
no dumping,” only to disappear or become nonresponsive after conclusion of the
review. Id. at 1381 n.7; See also 19 U.S.C. § 1675(a)(2)(B)(iv)(V) (directing Commerce
to inquire whether the subject merchandise involved in the new shipper review sales
was resold in the United States at a profit). To that end, Commerce reasonably
requested information from Company X and Company Y to complete its bona fide
analysis.
Plaintiff next contends that Commerce unjustifiably requested accounting records
from Company X and Company Y, see Pl.’s Opp’n Cmts at 14, and that the record
contained “an extraordinary amount of information” that was sufficient to enable the
agency to determine whether Jingmei’s sales were bona fide, id. at 16. Commerce
properly explained, however, that “each bona fide analysis is dependent on the facts
specific to each case.” Remand Results at 48; see also 19 U.S.C. § 1675(a)(2)(B)(iv)
(stating that Commerce, in its bona fide analysis, “shall consider, depending on the
circumstances surrounding such sales,” the statutory factors). Thus, “Commerce
designs its questionnaires to elicit information that it has determined it requires to
perform its bona fides analysis, and [interested parties have] the burden to respond with
the requested information to create an adequate record.” Shanghai Sunbeauty Trading
Co., 42 CIT __, Slip Op. 18-111 at 30 (citing Nan Ya Plastics Corp., Ltd. v. United
States, 810 F.3d 1333, 1337-38 (Fed. Cir. 2016)). Under the particular facts of this
case, Commerce deemed it necessary to request accounting documentation to either
obtain information missing from the record or substantiate the purported terms of sales,
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Court No. 16-00259 	Page 24
the expenses incurred, and confirm payment of those expenses by a particular party.
See Remand Results at 46-47 (discussing the “unusual circumstances” of Jingmei’s
sales, the need for accounting records to obtain the price and quantity of the sales
because of Jingmei’s insufficient reporting, and to substantiate the payment of
expenses related to the sales); see also id. at 14-16, 19-24, 37-38. 16
16 Plaintiff takes issue with the authority upon which Commerce relied for the proposition
that the agency sometimes requests supporting accounting documentation from the
respondent’s customers or downstream customers when conducting the bona fide
analysis in a new shipper review. See Pl.’s Opp’n Cmts at 17; see also Remand
Results at 48 & n.225 (citing to Zhengzhou Huachao Indus. Co., Ltd. v. United States,
Slip Op. 13-61, 2013 WL 3215181 (CIT May 14, 2013)). Plaintiff seems to suggest that
Commerce’s reliance on Zhengzhou is misplaced because the present case does not
contain the identical set of facts as existed in Zhengzhou. See Pl.’s Opp’n Cmts at 14,
17-19 (distinguishing Zhengzhou based on the court’s assessment of the questionnaire
response deficiencies in that case). Plaintiff also points to the agency’s final
determination in which the agency cited two past new shipper reviews for that
proposition. See Pl.’s Opp’n Cmts at 18; I&D Mem. at 8 (citing Certain Warmwater
Shrimp From the People’s Republic of China, 72 Fed. Reg. 52,049 (Dep’t Commerce
Sept. 12, 2007) (notice of final results and rescission, in part, of 2004/2006 antidumping
duty admin. and new shipper reviews) (“Shrimp NSR”), and accompanying Issues and
Decision Mem., A-570-893 (Sept. 5, 2007); Honey From the People’s Republic of
China, 72 Fed. Reg. 37,715 (Dep’t Commerce July 11, 2007) (final results and final
rescission, in part, of antidumping duty admin. review) (“Honey NSR”), and
accompanying Issues and Decision Mem., A-570-863 (July 2, 2007)). Before the court,
as it did before the agency on remand, Plaintiff attempts to distinguish Honey NSR and
Shrimp NSR on their facts and avers that neither administrative decision gives any
indication that the agency requested accounting documentation from importers or
downstream customers. See Pl.’s Opp’n Cmts at 19-20; Remand Results at 34 n.167,
48 (responding to Plaintiff’s draft comments). Plaintiff overlooks that Commerce cited
Zhengzhou and discussed Shrimp NSR and Honey NSR for the general proposition that
Commerce “has authority to conduct a full examination of companies on both sides of
the transaction in a bona fide sales analysis.” Remand Results at 48; see also
Zhengzhou, 2013 WL 3215181, at *21-22; Shrimp NSR at Comment 16 (“[T]he [agency]
examines the companies on both sides of the transaction”); cf. Honey NSR at Comment
4 (“[I]t remains evident to the [agency] that in the instant review, the importer of record
provided full responses to the [agency’s] questions in both [initial and supplemental]
questionnaires”) (emphasis added). Here, not only was such information relevant to
determining the profitability of the resale, but it was also critical to documenting which
party paid which expense and in what amount. Because Jingmei made these sales
pursuant to terms allegedly requiring other parties to pay certain significant expenses
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Plaintiff’s argument that the agency had sufficient information to determine
whether Jingmei’s sales were bona fide is belied by the record itself and the agency’s
well-reasoned explanation of the deficiencies in the same exhibits that Plaintiff cites to
support its argument. See Pl.’s Opp’n Cmts at 16-17. For example, Plaintiff points to
Company X’s brokerage and handling invoices, Suppl. Sec. A&C Resp., Ex. SQ7-7;
Company X’s payment documentation of import duties, Suppl. Sec. A&C Resp., Ex.
SQ7-8; Company Y’s resale invoices, Suppl. Sec. A&C Resp., Ex. SQ7-13; Company
Y’s summary containing country of origin, purchase quantity, and purchase price of its
purchases of subject merchandise during the POR, Suppl. Sec. A&C Resp., Ex. SQ7-
14; and Company Y’s photographs of the packaging material, Suppl. Sec. A&C Resp.,
Ex. SQ7-11. See id. With respect to the cited evidence, Commerce reasonably found
that: Company X did not provide all of the requested invoices and payment for the
purported expenses was unsubstantiated due to lack of financial ledgers, see Remand
Results at 10 & n.49, 20 & n.103; Company X’s documentation regarding payment of
import duties was insufficient, see id. at 22-23 & n.113; Company Y’s sample resale
invoices did not account for the resale of all the merchandise under review, see id. at 26
& nn.122-123, 44-45 & n.214; and Company Y’s summary of the origin, quality, and
price of its purchases of subject merchandise was incomplete in that it omitted the
invoice date, invoice number, supplier name and address, and terms of sale, see id. at
10-11 & n.55. 	Commerce also reasonably questioned whether the photographs of the
associated with the sales, it was critical for Jingmei to be able to document the payment
of those expenses by the other parties.
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packaging material depicted the subject merchandise. See id. at 43 & n.210; supra note
9.
Plaintiff’s remaining arguments challenge Commerce’s individual findings with
respect to the price and quantity of the sales, timing of payment, and expenses and
profit. See Pl.’s Opp’n Cmts at 20-30. With respect to timing, Plaintiff objects to
Commerce’s finding that the delay in Company X’s payment and the lack of collection
effort by Jingmei suggested a departure from normal commercial practice. Id. at 26.
Relying on Huzhou Muyun Wood Co. v. United States, 41 CIT ___, ___, 279 F. Supp.
3d 1215, 1231 (2017), Plaintiff suggests that Company X’s late payments by 15 and 75
days for the first and second sale, respectively, amounted to short delays, which are not
atypical in international business. Id. at 26. Plaintiff, however, makes no arguments,
and fails to point to any evidence, suggesting that receiving late payments was normal
business practice for Jingmei. In Huzhou Muyun Wood, “the invoice did not specify a
due date and the payment was allegedly only nine days late.” 279 F. Supp. 3d at 1231.
The court also noted that case law suggests “that Commerce must look at the degree of
lateness associated with payments and the extent to which other factors suggest the
sale was atypical.” Id. at 1231-32 (citing Tianjin, 29 CIT at 271-72, 366 F. Supp. 2d at
1260-61). Here, Commerce examined the payment terms, the variance in late
payments, and the lack of collection efforts on Jingmei’s part, and reasonably concluded
that the combination of these factors indicated that the sales were not bona fide. See
Remand Results at 18-19, 40-42.
Plaintiff’s other arguments largely amount to mere disagreement with
Commerce’s weighing of the evidence. See Pl.’s Opp’n Cmts at 20-21, 23-30. That
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approach mistakes the function of the court, which is to determine whether the Remand
Results are supported by substantial evidence, see 19 U.S.C. § 1516a(b)(1)(B)(i), not to
“reweigh the evidence or . . . reconsider questions of fact anew.” Downhole Pipe &
Equip., L.P. v. United States, 776 F.3d 1369, 1377 (Fed. Cir. 2015) (internal quotation
marks and citation omitted). That there is a possibility of drawing two inconsistent
conclusions from the evidence does not preclude the agency’s finding from being
supported by substantial evidence. Matsushita Elec. Indus. Co. v. United States, 750
F.2d 927, 933 (Fed. Cir. 1984) (citing Consolo v. Fed. Mar. Comm'n, 383 U.S. 607,
619–20 (1966)). The record evidence upon which Commerce relied supports
Commerce’s findings with respect to price and quantity of the sales, timing of payment,
and expenses and profit. See supra Discussion Section II.i-II.iv; see also Remand
Results at 14-26. Moreover, the record as a whole supports the agency’s conclusion
that the totality of circumstances indicates that Jingemi’s sales were not bona fide.
Lastly, Plaintiff suggests Commerce failed to address evidence not on the record.
With respect to price and quantity, Plaintiff argues that, in recent practice, Commerce
has not considered customers’ and downstream customers’ accounting books and
records to determine whether the price of the subject sale is indicative of the new
shipper’s future behavior. Pl.’s Opp’n Cmts at 22. Plaintiff notes that in a recent new
shipper review concerning the antidumping duty order on multilayered wood flooring
from the PRC, Commerce compared the prices of the new shipper with the prices of
most similar merchandise sold by mandatory respondents in the most recently
completed administrative review. Id. at 22-23 (citing Multilayered Wood Flooring From
the People’s Republic of China, 82 Fed. Reg. 25,773 (Dep’t Commerce June 5, 2017)
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(final results and partial rescission of antidumping duty new shipper review; 2014-2015),
and accompanying Issues and Decision Mem., A-570-970 (June 5, 2017) at Comment
4). Plaintiff also notes that Commerce has in the past compared prices to CBP data
when analyzing the commercial reasonableness of the new shipper’s sales. Id. at 23.
Plaintiff, however, does not cite to any such evidence in the record of this new shipper
review that Commerce neglected to consider. Based on this record, the court cannot
conclude that the agency erred in failing to consider data or information that did not
exist.
CONCLUSION
For the foregoing reasons, the court finds that substantial evidence supports
Commerce’s finding that Jingmei’s sales are not bona fide, and, therefore, rescission of
the new shipper review was appropriate. Judgment will enter accordingly.
/s/ 	Mark A. Barnett
Judge
Dated: September 26, 2018
New York, New York
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