Linyi Chengen Import and Export Co., Ltd. v. United States

Slip Op. 21-127
UNITED STATES COURT OF INTERNATIONAL TRADE
LINYI CHENGEN IMPORT AND
EXPORT CO., LTD.,
Plaintiff,
and
CELTIC CO., LTD., ET AL.,
Consolidated Plaintiffs,
v.
UNITED STATES,
Defendant,
and
COALITION FOR FAIR TRADE OF
HARDWOOD PLYWOOD,
Defendant-Intervenor.
Before: Jennifer Choe-Groves, Judge
Consol. Court No. 18-00002
OPINION AND ORDER
[Remanding the third remand determination of the U.S. Department of Commerce,
following the final determination in the antidumping duty investigation of certain
hardwood plywood products from the People’s Republic of China.]
Dated: September 24, 2021
Gregory S. Menegaz, J. Kevin Horgan, and Alexandra H. Salzman, deKieffer &
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Horgan, PLLC, of Washington, D.C., for Plaintiff Linyi Chengen Import and
Export Co., Ltd., Consolidated Plaintiffs Far East American, Inc. and Shandong
Dongfang Bayley Wood Co., Ltd., and Consolidated Plaintiffs and Plaintiff-
Intervenors Celtic Co., Ltd., Jiaxing Gsun Import & Export Co., Ltd., Anhui Hoda
Wood Co., Ltd., Jiaxing Hengtong Wood Co., Ltd., Linyi Evergreen Wood Co.,
Ltd., Linyi Glary Plywood Co., Ltd., Linyi Hengsheng Wood Industry Co., Ltd.,
Linyi Huasheng Yongbin Wood Co., Ltd., Linyi Jiahe Wood Industry Co., Ltd.,
Linyi Linhai Wood Co., Ltd., Linyi Mingzhu Wood Co., Ltd., Linyi Sanfortune
Wood Co., Ltd., Qingdao Good Faith Import and Export Co., Ltd., Shandong
Qishan International Trading Co., Ltd., Shanghai Futuwood Trading Co., Ltd.,
Suining Pengxiang Wood Co., Ltd., Suqian Hopeway International Trade Co.,
Ltd., Suzhou Oriental Dragon Import and Export Co., Ltd., Xuzhou Andefu Wood
Co., Ltd., Xuzhou Jiangyang Wood Industries Co., Ltd., Xuzhou Longyuan Wood
Industry Co., Ltd., Xuzhou Pinlin International Trade Co., Ltd., Xuzhou Shengping
Import and Export Co., Ltd., and Xuzhou Timber International Trade Co., Ltd.
Jeffrey S. Neeley and Stephen W. Brophy, Husch Blackwell LLP, of Washington,
D.C., for Consolidated Plaintiffs Zhejiang Dehua TB Import & Export Co., Ltd.,
Highland Industries Inc., Jiashan Dalin Wood Industry Co., Ltd., Happy Wood
Industrial Group Co., Ltd., Jiangsu High Hope Arser Co., Ltd., Suqian Yaorun
Trade Co., Ltd., Yangzhou Hanov International Co., Ltd., G.D. Enterprise Limited,
Deqing China-Africa Foreign Trade Port Co., Ltd., Pizhou Jin Sheng Yuan
International Trade Co., Ltd., Xuzhou Shuiwangxing Trading Co., Ltd., Cosco Star
International Co., Ltd., Linyi City Dongfang Jinxin Economic & Trade Co., Ltd.,
Linyi City Shenrui International Trade Co., Ltd., Jiangsu Qianjiuren International
Trading Co., Ltd., and Qingdao Top P&Q International Corp.
Jeffrey S. Grimson and Jill A. Cramer, Mowry & Grimson, PLLC, of Washington,
D.C., for Consolidated Plaintiffs Taraca Pacific, Inc., Canusa Wood Products, Ltd.,
Concannon Corporation d/b/a Concannon Lumber Company, Fabuwood Cabinetry
Corporation, Holland Southwest International Inc., Liberty Woods International,
Inc., Northwest Hardwoods, Inc., Richmond International Forest Products, LLC,
and USPLY LLC.
Sonia M. Orfield, Trial Attorney, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, of Washington, D.C., for Defendant United States.
With her on the brief were Brian M. Boynton, Acting Assistant Attorney General,
Jeanne E. Davidson, Director, and Tara K. Hogan, Assistant Director. Of counsel
was Savannah Rose Maxwell, Attorney, Office of the Chief Counsel for Trade
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Enforcement and Compliance, U.S. Department of Commerce.
Timothy C. Brightbill, Jeffrey O. Frank, Stephanie M. Bell, and Elizabeth S. Lee,
Wiley Rein LLP, of Washington, D.C., for Defendant-Intervenor Coalition for Fair
Trade of Hardwood Plywood.
Choe-Groves, Judge: This action concerns the import of hardwood and
decorative plywood and certain veneered panels into the United States from the
People’s Republic of China (“China”), subject to the final affirmative
determination in an antidumping duty investigation by the U.S. Department of
Commerce (“Commerce”). See Certain Hardwood Plywood Products from the
People’s Republic of China, 82 Fed. Reg. 53,460 (Dep’t of Commerce Nov. 16,
2017) (final determination of sales at less than fair value), as amended, 83 Fed.
Reg. 504 (Dep’t of Commerce Jan. 4, 2018) (amended final determination of sales
at less than fair value), (collectively, “Final Determination”); see also Issues and
Decision Mem. for the Final Determination of the Antidumping Duty Investigation
of Certain Hardwood Plywood Products from People’s Republic of China, ECF
No. 25-7 (“Final IDM”).
Before the Court are the Final Results of Redetermination Pursuant to Court
Remand, ECF Nos. 143-1, 144-1 (“Third Remand Determination”), which the
Court ordered in Linyi Chengen Import & Export Co. v. United States (“Linyi
Chengen III”), 44 CIT __, 487 F. Supp. 3d 1349 (2020). Consolidated Plaintiffs
Zhejiang Dehua TB Import & Export Co. (“Dehua TB”), Taraca Pacific, Inc.
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(“Taraca”), and Celtic Co. (“Celtic”) each filed comments in opposition to the
Third Remand Determination. Plaintiff Linyi Chengen Import & Export Co.
(“Linyi Chengen”), a mandatory respondent, and Consolidated Plaintiff Shandong
Dongfang Bayley Wood Co. (“Bayley”), a mandatory respondent, did not file
comments in response to the Third Remand Determination.
Dehua TB filed comments collectively on behalf of itself and Highland
Industries, Inc., Jiashan Dalin Wood Industry Co., Happy Wood Industrial Group
Co., Jiangsu High Hope Arser Co., Suqian Yaorun Trade Co., Yangzhou Hanov
International Co., G.D. Enterprise Ltd., Deqing China-Africa Foreign Trade Port
Co., Pizhou Jin Sheng Yuan International Trade Co., Xuzhou Shuiwangxing
Trading Co., Cosco Star International Co., Linyi City Dongfang Jinxin Economic
& Trade Co., Linyi City Shenrui International Trade Co., Jiangsu Qianjiuren
International Trading Co., and Qingdao Top P&Q International Corp. Comments
Opp’n Third Remand Redetermination Behalf Consol. Pls. [Dehua TB] et. al., ECF
Nos. 162, 163 (“the Dehua TB Comments” or “Dehua TB Cmts.”).
Taraca filed comments collectively on behalf of itself and Canusa Wood
Products, Ltd., Concannon Corp. d/b/a Concannon Lumber Co., Fabuwood
Cabinetry Corp., Holland Southwest International, Inc., Liberty Woods
International, Inc., Northwest Hardwoods, Inc., Richmond International Forest
Products, LLC, and USPLY LLC. Consol. Pls. [Taraca], Canusa Wood Products
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Ltd., Concannon Corp. [d/b/a] Concannon Lumber Co., Fabuwood Cabinetry
Corp., Holland Southwest International Inc., Liberty Woods International, Inc.,
Northwest Hardwoods, Inc., Richmond International Forest Products, LLC, &
USPLY LLC Comments Opp’n Third Remand Redetermination, ECF Nos. 164,
165 (“the Taraca Comments” or “Taraca Cmts.”).
Celtic filed comments collectively on behalf of itself and Anhui Hoda Wood
Co., Far East American, Inc., Jiaxing Gsun Import & Export Co., Jiaxing Hengtong
Wood Co., Linyi Evergreen Wood Co., Linyi Glary Plywood Co., Linyi Jiahe
Wood Industry Co., Linyi Linhai Wood Co., Linyi Hengsheng Wood Industry Co.,
Linyi Huasheng Yongbin Wood Co., Linyi Mingzhu Wood Co., Linyi Sanfortune
Wood Co., Qingdao Good Faith Import & Export Co., Shanghai Futuwood Trading
Co., Shandong Qishan International Trading Co., Suining Pengxiang Wood Co.,
Suqian Hopeway International Trade Co., Suzhou Oriental Dragon Import &
Export Co., Xuzhou Andefu Wood Co., Xuzhou Jiangyang Wood Industries Co.,
Xuzhou Longyuan Wood Industry Co., Xuzhou Pinlin International Trade Co.,
Xuzhou Shengping Import & Export Co., and Xuzhou Timber International Trade
Co. Consol. Separate Rate Pls.’ Comments Opp’n Third Remand
Redetermination, ECF Nos. 166, 167 (“the Celtic Comments” or “Celtic Cmts.”).
The Court refers collectively to the non-examined parties that filed the
Dehua TB Comments, the Taraca Comments, and the Celtic Comments as the
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“Separate Rate Plaintiffs.”
Defendant-Intervenor Coalition for Fair Trade of Hardwood Plywood
(“Defendant-Intervenor”) filed comments in support of the Third Remand
Determination. [Def.-Intervenor]’s Comments in Supp. of Commerce’s Remand
Redetermination, ECF Nos. 195, 198 (“Def.-Interv.’s Cmts.”). Defendant United
States (“Defendant”) responded to all filed comments. Def.’s Resp. Comments
Remand Redetermination, ECF Nos. 196, 197 (“Def.’s Resp.”).
The Court reviews whether Commerce’s separate rate for the non-examined
companies that were granted separate rate status, including Separate Rate
Plaintiffs, (“all-others separate rate”) is supported by substantial evidence. For the
reasons discussed below, the Court holds that the all-others separate rate is not
supported by substantial evidence and remands Commerce’s Third Remand
Determination.
BACKGROUND
The Court presumes familiarity with the underlying facts and procedural
history of this case and recites the facts relevant to the Court’s review of the Third
Remand Determination. See Linyi Chengen Imp. & Exp. Co. v. United States, 43
CIT__, __, 391 F. Supp. 3d 1283, 1287–92 (2019); Linyi Chengen Imp. & Exp.
Co. v. United States, 44 CIT __, __, 433 F. Supp. 3d 1278, 1280–84 (2020); Linyi
Chengen III, 44 CIT at __, 487 F. Supp. 3d at 1353–59.
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Commerce initiated an antidumping investigation after reviewing an
antidumping duty petition (“Petition”) submitted by Defendant-Intervenor. See
Certain Hardwood Plywood Products from the People’s Republic of China, 81 Fed.
Reg. 91,125 (Dep’t of Commerce Dec. 16, 2016) (initiation of less-than-fair-value
investigation). The Petition contained price quotes, i.e., “two offers for sale for
hardwood plywood produced in [China] from a Chinese exporter,” as the basis for
its estimated dumping margins ranging from 104.06% to 114.72%. See id. at
91,128–29.
Commerce accepted applications from exporters and producers seeking to
obtain separate rate status in the investigation (“separate rate applications”) to
avoid the country-wide dumping margin because the investigation involved
products from China, a non-market economy. See id. at 91,129. A company must
provide the commercial invoice for the first sale to an unaffiliated party in the
United States during the period of investigation with its separate rate application.
Third Remand Determination at 21. Commerce assigned the all-others separate
rate to the companies that were not individually examined but demonstrated their
eligibility for separate rate status (“separate rate respondents”). Final
Determination, 82 Fed. Reg. at 53,462. Commerce selected Bayley and Linyi
Chengen as the only mandatory respondents in the investigation. See Decision
Mem. Prelim. Determination Antidumping Duty Investigation of Certain
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Hardwood Plywood Products from the People’s Republic of China (June 16, 2017)
(“Prelim. DM”) at 4, PR 734. 1
In Linyi Chengen III, the Court sustained Commerce’s determination, under
protest, that Linyi Chengen’s dumping margin was 0%. See Linyi Chengen III, 44
CIT at __, 487 F. Supp. 3d at 1356; Final Results of Redetermination Pursuant to
Court Remand at 3, ECF Nos. 113-1, 114-1. Commerce explained that assigning
Linyi Chengen’s 0% rate as the all-others separate rate would not be reasonably
reflective of the potential or actual dumping margins of the separate rate
respondents—referring to the theoretical dumping margin of each of the separate
rate respondents if they had been individually investigated. See Linyi Chengen III,
44 CIT at __, 487 F. Supp. 3d at 1357. Commerce determined the all-others
separate rate of 57.36% on second remand by applying a simple average of
Bayley’s 114.72% Adverse Facts Available (“AFA”) China-wide entity rate and
Linyi Chengen’s 0% rate. Id. at __, 487 F. Supp. 3d at 1354, 1357. The Court
concluded that Commerce did not support with substantial evidence its departure
from the expected method and its determination of the all-others separate rate of
57.36%, and remanded for Commerce to reconsider or provide additional evidence.
Id. at __, 487 F. Supp. 3d at 1358–59.
1 Citations to the administrative record reflect the public record (“PR”) document
numbers.
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In calculating the all-others separate rate on third remand, Commerce again
departed from the expected method. Third Remand Determination at 24.
Commerce applied “any reasonable method” and again calculated the all-others
separate rate of 57.36% by using the simple average of Linyi Chengen’s 0% with
Bayley’s AFA rate of 114.72%. Id. at 24–25.
JURISDICTION AND STANDARD OF REVIEW
The U.S. Court of International Trade has jurisdiction under 19 U.S.C.
§ 1516a(a)(2)(B)(i) and 28 U.S.C. § 1581(c). The Court shall hold unlawful any
determination found to be unsupported by substantial evidence on the record or
otherwise not in accordance with the law. 19 U.S.C. § 1516a(b)(1)(B)(i). The
Court also reviews determinations made on remand for compliance with the
Court’s remand order. Ad Hoc Shrimp Trade Action Comm. v. United States, 38
CIT __, __, 992 F. Supp. 2d 1285, 1290 (2014), aff’d, 802 F.3d 1339 (Fed. Cir.
2015).
DISCUSSION
I. 	Legal Framework
Commerce is authorized by statute to calculate and impose a dumping
margin on imported subject merchandise after determining it is sold in the United
States at less than fair value. 19 U.S.C. § 1673. The statute authorizes Commerce
to determine an estimated weighted average dumping margin for each individually
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examined exporter and producer and one all-others rate for non-examined
companies. Id. § 1673d(c)(1)(B). The U.S. Court of Appeals for the Federal
Circuit has upheld Commerce’s reliance on the method for determining the
estimated all-others rate in § 1673d(c)(5) “in determining the separate rate for
exporters and producers from nonmarket economies that demonstrate their
independence from the government but that are not individually investigated.”
Changzhou Hawd Flooring Co. v. United States, 848 F.3d 1006, 1011 (Fed. Cir.
2017) (citation omitted).
The general rule under the statute for calculating the all-others rate is to
weight-average the estimated weighted average dumping margins established for
exporters and producers individually investigated, excluding any zero and de
minimis margins, and any margins determined entirely on the basis of facts
available, including adverse facts available. 19 U.S.C. § 1673d(c)(5)(A). If the
estimated weighted average dumping margins established for all exporters and
producers individually investigated are zero or de minimis, or are determined
entirely under 19 U.S.C. § 1677e, Commerce may invoke an exception to the
general rule. Id. § 1673d(c)(5)(B). The Statement of Administrative Action
provides guidance that when the dumping margins for all individually examined
respondents are determined entirely on the basis of the facts available or are zero
or de minimis, the “expected method” of determining the all-others rate is to
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weight-average the zero and de minimis margins and margins determined pursuant
to the facts available, provided that volume data is available. Uruguay Round
Agreements Act, Statement of Administrative Action (“SAA”), H.R. Doc. No.
103-316, vol. 1, at 873 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4201.
Commerce may depart from the “expected method” and use “any reasonable
method” if Commerce reasonably concludes that the expected method is not
feasible or results in an average that would not be reasonably reflective of potential
dumping margins for non-investigated exporters or producers. See 19 U.S.C.
§ 1673d(c)(5)(B); Navneet Publ’ns (India) Ltd. v. United States, 38 CIT __, __,
999 F. Supp. 2d 1354, 1358 (2014) (“[T]he following hierarchy [is applied] when
calculating all-others rates—(1) the ‘[g]eneral rule’ set forth in § 1673d(c)(5)(A),
(2) the alternative ‘expected method’ under § 1673d(c)(5)(B), and (3) any other
reasonable method when the ‘expected method’ is not feasible or does not
reasonably reflect potential dumping margins.”); see also SAA at 873, reprinted in
1994 U.S.C.C.A.N. at 4201; Albemarle Corp., 821 F.3d at 1351–52 (quoting SAA
at 873, reprinted in 1994 U.S.C.C.A.N. at 4201). Commerce must determine that
the expected method is not feasible or would not be reasonably reflective of the
potential dumping margins for non-investigated exporters or producers based on
substantial evidence. Albemarle Corp., 821 F.3d at 1352–53; see also Changzhou
Hawd Flooring, 848 F.3d at 1012.
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II. 	The All-Others Separate Rate is Unsupported by Substantial
Evidence
A. 	Commerce’s Departure from the Expected Method
Commerce is required to support with substantial evidence its departure
from the expected method based on its determination that Linyi Chengen’s 0%
dumping margin would not be reasonably reflective of the separate rate
respondents’ potential dumping margins. See Albemarle Corp., 821 F.3d at 1352–
53; see also Changzhou Hawd Flooring, 848 F.3d at 1012.
On third remand, Commerce determined that departure from the expected
method of calculating the all-others separate rate was warranted because Linyi
Chengen’s 0% rate would not be reflective of the potential dumping margins of the
Separate Rate Plaintiffs. Third Remand Determination at 13. First, Commerce
compared the two price quotes from a Chinese exporter in the Petition to the
commercial invoice in that same Chinese exporter’s separate rate application
(“Petition Separate Rate Application”) and determined that the price on the
commercial invoice was “almost identical” to one of the price quotes in the
Petition. Id. at 18. Commerce inferred that the dumping margin range in the
Petition was “supported by actual prices at which plywood was sold by a
cooperating separate rate respondent in [the] investigation during the [period of
investigation]” and was representative of the dumping selling behavior of the
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separate rate respondents during the period of review. Id. at 17–18. Commerce
noted that Linyi Chengen sold the same product for almost 20% higher than the
price quoted in the Petition. Id. at 18–19.
Commerce also explained that Linyi Chengen exported merchandise
produced by its affiliated producer and none of the Separate Rate Plaintiffs shared
Linyi Chengen’s selling and cost structure. Id. at 19. Of the forty Separate Rate
Plaintiffs, fifteen companies export merchandise that is self-produced and twenty-
five companies resell merchandise that is purchased from unaffiliated producers.
Id. at 19–20. Commerce explained that the twenty-five resellers had different cost
structures and exporter-to-producer combinations than Linyi Chengen and there
were “too many possible, unknown variables . . . to definitively state the extent of
the operational differences” between those twenty-five companies and Linyi
Chengen. Id.
In addition, Commerce analyzed commercial invoices from each of the
separate rate applications submitted by the Separate Rate Plaintiffs. Id. at 21.
Based on the data provided in the separate rate applications, Commerce noted that
half of the Separate Rate Plaintiffs “sold plywood at prices lower than [Linyi]
Chengen’s average price, [eighteen] of which also identified the [same] species of
plywood as [Linyi Chengen].” Id. at 23–24. Commerce concluded that “these fact
patterns indicate[d] that the likelihood of these sales being made at dumped prices
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is significantly greater than at the price at which [Linyi] Chengen sold its product
. . . during the [period of investigation].” Id. at 24. Commerce determined that
based on the record, “the selling activities, in both prices and products, of the
Separate Rate Plaintiffs [were] dissimilar to [Linyi] Chengen’s” and indicated that
Linyi Chengen’s 0% dumping margin was not “necessarily representative of the
estimated weighted-average dumping margin that would apply to the Separate Rate
Plaintiffs.” Id.
Commerce supported its determination that Linyi Chengen’s dumping
margin would not be reasonably reflective of the Separate Rate Plaintiffs’ potential
dumping margins by analyzing economic evidence on the record showing
differences between Linyi Chengen’s and the Separate Rate Plaintiffs’ selling and
cost structure and pricing during the period of investigation. While the Court notes
that Commerce acknowledged the sparse record, the Court concludes that
Commerce has reasonably supported its determination to depart from the expected
method because the Separate Rate Plaintiffs’ potential dumping margins would not
be represented by Linyi Chengen’s 0% dumping margin in light of evidence
reviewed by Commerce, including the comparability of a Petition price quote to a
price from the Petition Separate Rate Application, differences between Linyi
Chengen’s and the Separate Rate Plaintiffs’ pricing and cost structures, and
commercial invoices showing disparities between the Separate Rate Plaintiffs’ and
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Linyi Chengen’s selling activities. Thus, the Court sustains Commerce’s departure
from the expected method.
B. 	Commerce’s Application of “Any Reasonable Method”
After determining that departure from the expected method was appropriate,
Commerce used “any reasonable method” under 19 U.S.C. § 1673d(c)(5)(B) to
calculate the all-others separate rate of 57.36% by applying the simple average of
Linyi Chengen’s 0% rate with Bayley’s 114.72% AFA rate. Id. at 25.
The Separate Rate Plaintiffs challenge Commerce’s determination on
numerous grounds, including Commerce’s use of the estimated dumping margin
from the Petition as highly speculative and not based on any company’s actual
data. Dehua TB Cmts. at 4–5; Taraca Cmts. at 15–19 (incorporating by reference
the Celtic Comments and the Dehua TB Comments); Celtic Cmts. at 3–4. The
Separate Rate Plaintiffs assert that the price on a single commercial invoice
included in the Petition Separate Rate Application has “no rational bearing” on the
representativeness of the Petition margin. Celtic Cmts. at 3–4; see also Dehua TB
Cmts. at 4–5; Taraca Cmts. at 15–19. The Separate Rate Plaintiffs also dispute
Commerce’s comparison of Linyi Chengen’s pricing data to the Petition Separate
Rate Application’s single commercial invoice price and the other Separate Rate
Plaintiffs’ single commercial invoice prices. Celtic Cmts. at 4; see also Dehua TB
Cmts. at 4–6; Taraca Cmts. at 18–19. The Separate Rate Plaintiffs argue that the
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evidence of a single commercial invoice price does not support the application of a
dumping margin of 57.36% to the Separate Rate Plaintiffs. Celtic Cmts. at 4;
Dehua TB Cmts. at 4–6; Taraca Cmts. at 15. The Separate Rate Plaintiffs assert
that the presence of a single sale with a lower price than Linyi Chengen’s lowest
sales price does not indicate that the company would be dumping overall, much
less at a rate of 57.36%. Celtic Cmts. at 5; Dehua TB Cmts. at 4–6; Taraca Cmts.
at 18–19. Defendant-Intervenor avers that Commerce’s calculation was reasonable
and supported by substantial evidence. See Def.-Interv.’s Cmts. at 8. Defendant
defends Commerce’s determination as supported by substantial evidence and urges
the Court to sustain Commerce’s “any reasonable method” used in the Third
Remand Determination. See Def.’s Resp. at 9–23.
One substantiated and calculated basis, Linyi Chengen’s dumping margin,
was available on the record for Commerce’s consideration for its all-others
separate rate remand determination because Commerce selected only two
mandatory respondents, which resulted in the 0% rate for Linyi Chengen and an
AFA China-wide entity rate of 114.72%. Third Remand Determination at 13. As
discussed above, Commerce explained and the Court sustains Commerce’s
determination that Linyi Chengen’s 0% rate would not be representative of the
separate rate respondents’ actual dumping margins.
Commerce noted the lack of information on the record from which to
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calculate the actual dumping margins for the Separate Rate Plaintiffs. Id. at 17.
Commerce determined that the estimated dumping margins in the Petition were
representative of the selling behavior of the separate rate respondents. Id.
Commerce cited one commercial invoice from the Petition Separate Rate
Application as record evidence showing a single sale of products similar to
products sold by Linyi Chengen, noting that the price of the single sale was
“almost identical” to one of the price quotes used to determine the estimated
dumping margins in the Petition. Id. at 18. While recognizing the lack of
“necessary information to determine the transaction-specific dumping margin of
this particular sale,” Commerce found “it reasonable to infer . . . that this sale
would have had a transaction-specific dumping margin in the range of the Petition
rates.” Id. at 17–18. Commerce explained that Linyi Chengen sold the same
products at prices almost 20% higher than the price shown on the invoice from the
Petition Separate Rate Application, and inferred that “the likelihood of the
products sold by the Petition [Separate Rate Application] Exporter being made at
dumped prices is significantly greater than at the price sold by [Linyi] Chengen
during the [period of investigation].” Id. at 18–19. Commerce concluded, based
on its review of the commercial invoice, that the approximately 20% difference
between the prices of the Petition Separate Rate Application and Linyi Chengen
supported Commerce’s application of a 57.36% rate to the Separate Rate Plaintiffs.
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Id. at 18–19, 25.
Commerce must support with substantial evidence its application of a
57.36% all-others separate rate. See 19 U.S.C. § 1516a(b)(1)(B)(i). The Court
notes Commerce’s acknowledgment that the record provides no opportunity for
Commerce to know or to calculate the actual dumping margins of the Separate
Rate Plaintiffs. See Third Remand Determination at 16. Nonetheless, Commerce
is still required to assign dumping margins as accurately as possible. Rhone
Poulenc, Inc. v. United States, 899 F.2d 1185, 1191 (Fed. Cir. 1990). Commerce
created its own problems when it selected only two mandatory respondents, which
resulted in sparse information on the record to support its assertions regarding the
potential dumping margins of the separate rate respondents. See Yangzhou
Bestpak Gifts & Crafts Co. v. United States, 716 F.3d 1370, 1376–79 (Fed. Cir.
2013) (citing Yangzhou Bestpak Gifts & Crafts Co. v. United States, 35 CIT 948,
955 n.4 (2011) (“Commerce put itself in a precarious situation when it selected
only two mandatory respondents.”)). Because Commerce cited as record evidence
only one commercial invoice showing an approximately 20% price difference, the
Court concludes that Commerce’s 57.36% separate rate assigned to the voluntary,
cooperating Separate Rate Plaintiffs is not reasonable and is unsupported by
substantial evidence.
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CONCLUSION
For the foregoing reasons, the Court remands Commerce’s Third Remand
Determination.
Accordingly, it is hereby
ORDERED that the Third Remand Determination is remanded for
Commerce to reconsider the all-others separate rate consistent with this opinion;
and it is further
ORDERED that this case shall proceed according to the following schedule:
(1) 	Commerce shall file the fourth remand determination on or
before October 27, 2021;
(2) 	Commerce shall file the administrative record on or before
November 10, 2021;
(3) 	Comments in opposition to the fourth remand determination
shall be filed on or before December 15, 2021;
(4) 	Comments in support of the fourth remand determination shall
be filed on or before January 19, 2022; and
(5) 	The joint appendix shall be filed on or before February 2, 2022.
/s/ Jennifer Choe-Groves
Jennifer Choe-Groves, Judge
Dated: 	September 24, 2021
New York, New York
Case 1:18-cv-00002-JCG Document 202 Filed 09/24/21 Page 19 of 19