Baroque Timber Industries (Zhongshan) Co., Ltd. et al v. United States

Court No. 24-00106 	PUBLIC VERSION 	Page 1
Slip Op. 26-32
UNITED STATES COURT OF INTERNATIONAL TRADE
BAROQUE TIMBER INDUSTRIES
(ZHONGSHAN) CO., LTD. AND
RIVERSIDE PLYWOOD
CORPORATION,
Plaintiffs,
v.
UNITED STATES,
Defendant.
Before: Timothy M. Reif, Judge
Court No. 24-00106
PUBLIC VERSION
OPINION AND ORDER
[Sustaining in part and remanding in part Commerce’s final results in the 11th
administrative review of the countervailing duty order covering multilayered wood
flooring from the People’s Republic of China.]
Dated: April 7, 2026
Andrew T. Schutz, Grunfeld Desiderio Lebowitz Silverman & Klestadt, LLP, of
Washington, D.C., argued for plaintiffs Baroque Timber Industries (Zhongshan) Co., Ltd.
and Riverside Plywood Corporation. Also on the briefs were Francis J. Sailer, Jordan
C. Kahn and Michael S. Holton.
Brendan D. Jordan, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, D.C., and JonZachary Forbes, Of Counsel,
Office of Chief Counsel for Trade Enforcement and Compliance, U.S. Department of
Commerce, of Washington, D.C., argued for defendant United States. Also on the brief
were Yaakov M. Roth, Acting Assistant Attorney General, Patricia M. McCarthy, Director
and Tara K. Hogan, Assistant Director, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, of Washington, D.C.
* 	* 	*
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 1 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 2
Reif, Judge: Before the court is the motion for judgment on the agency record by
plaintiffs Baroque Timber Industries (Zhongshan) Co., Ltd. and Riverside Plywood
Corporation (collectively, “Baroque” or “plaintiff”). 1
Plaintiff invokes this Court’s subject matter jurisdiction under 28 U.S.C. § 1581(c)
and seeks review of the final results of the 11th administrative review by the
Department of Commerce (“Commerce”) of the countervailing duty (“CVD”) order on
multilayered wood flooring (“MLWF” or “subject merchandise”) from the People’s
Republic of China (“China”), published as Multilayered Wood Flooring from the People’s
Republic of China: Final Results of Countervailing Duty Administrative Review; 2021, 89
Fed. Reg. 41,939 (Dep’t of Commerce May 14, 2024) (“Final Results”), PR 332;
accompanying Issues and Decision Memorandum (Dep’t of Commerce May 7, 2024)
(“IDM”), PR 326.
Plaintiff alleges that Commerce’s Final Results were not supported by substantial
evidence on the record and were otherwise not in accordance with law in regard to
Commerce’s: (1) calculation of the benchmark price for plywood, veneer and fiberboard;
and (2) application of adverse facts available (“AFA”) to find certain of Baroque’s input
suppliers to be government authorities. See Baroque Mot. for J. on the Agency R.
(“Baroque Br.”), ECF Nos. 23-24.
For the reasons discussed below, the court sustains in part and remands in part
Commerce’s Final Results.
1 Baroque Timber is a cross-owned affiliate of Riverside Plywood.
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 2 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 3
BACKGROUND
On December 8, 2011, Commerce issued a CVD order on MLWF from China.
Multilayered Wood Flooring from the People’s Republic of China: Countervailing Duty
Order, 76 Fed. Reg. 76,693 (Dep’t of Commerce Dec. 8, 2011), amended by
Multilayered Wood Flooring from the People’s Republic of China: Amended
Antidumping and Countervailing Duty Orders, 77 Fed. Reg. 5,484 (Dep’t of Commerce
Feb. 3, 2012). 2
On February 2, 2023, Commerce initiated an administrative review of the CVD
order on MLWF from China for the period of review (“POR”) January 1, 2021, through
December 31, 2021. Initiation of Antidumping and Countervailing Duty Administrative
Reviews, 88 Fed. Reg. 7,060 (Dep’t of Commerce Feb. 2, 2023), PR 26.
On April 3, 2023, Commerce selected Baroque as well as Jiangsu Senmao
Bamboo and Wood Industry Co., Ltd. (“Senmao”) as mandatory respondents in the
administrative review. Countervailing Duty Administrative Review of Multilayered Wood
Flooring from the People’s Republic of China: Respondent Selection Memorandum
(Apr. 3, 2023), PR 67.
On December 28, 2023, Commerce published its preliminary results, in which it
calculated a preliminary countervailable subsidy rate of 23.65 percent for Baroque.
Multilayered Wood Flooring from the People’s Republic of China: Preliminary Results
and Partial Recission of Countervailing Duty Administrative Review; 2021, 88 Fed. Reg.
2 The amendment consisted of removing an incorrect Harmonized Tariff Schedule of the
United States (“HTS”) number from the scope of the orders. Multilayered Wood
Flooring from the People’s Republic of China: Amended Antidumping and
Countervailing Duty Orders, 77 Fed. Reg. 5,484 (Dep’t of Commerce Feb. 3, 2012).
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 3 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 4
89,644 (Dep’t of Commerce Dec. 28, 2023) (“Preliminary Results”), PR 299;
accompanying Preliminary Decision Memorandum (Dep’t of Commerce Dec. 21, 2023)
(“PDM”), PR 295.
In its preliminary results, Commerce calculated a benchmark price for plywood,
veneer and fiberboard, inputs used to produce MLWF, by averaging datasets that
reflected a “world market price.” See PDM at 41-46. These datasets included the
International Tropical Timber Organization Tropical Timber Market Report (“ITTO
TTMR”) dataset containing plywood, veneer and fiberboard data from Ghana, Brazil and
Peru, and global datasets from the United Nations Comtrade database (“UN
Comtrade”), Global Trade Atlas (“GTA”), and STATS.NZ. Id. Additionally, Commerce
preliminarily determined to apply an adverse inference that Baroque’s input suppliers
were authorities of the Government of China (“GOC”) because the GOC withheld
information that Commerce deemed necessary for analyzing Chinese Communist Party
(“CCP”) involvement in those suppliers. Id. at 13-16.
On May 14, 2024, Commerce published its Final Results, in which it calculated a
final countervailable subsidy rate 30.85 percent for Baroque. Final Results, 89 Fed.
Reg. at 41,940. In its Final Results, Commerce rejected the ITTO TTMR dataset as a
tier two source altogether 3 and limited the plywood, veneer and fiberboard benchmarks
to the UN Comtrade, GAT and STATS.NZ datasets only. IDM at 49-58. Regarding the
3 Commerce rejected both the ITTO Biennial Review Statistics (“BRS”) dataset
submitted by petitioner, American Manufacturers of Multilayered Wood Flooring
(“AMMWF”) and the ITTO TTMR. IDM at 49-58. However, only the ITTO TTMR dataset
is at issue in this case.
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 4 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 5
application of AFA to find Baroque’s input suppliers to be government authorities,
Commerce made no changes from the preliminary results. See id. at 42-48.
On June 13, 2024, and on July 15, 2024, Baroque filed summons and complaint,
respectively, before the Court seeking judicial review of certain aspects of the Final
Results. Summons, ECF No. 1; Complaint, ECF No. 10.
On January 23, 2025, plaintiff filed its motion for judgment on the agency record.
Baroque Br.
On January 15, 2026, the court heard oral argument. See Oral Arg. Tr., ECF No.
44.
As noted, in its motion, plaintiff maintains that Commerce’s Final Results were
not supported by substantial evidence on the record and were otherwise not in
accordance with law regarding Commerce’s: (1) calculation of the benchmark price for
plywood, veneer and fiberboard; and (2) application of AFA to find certain input
suppliers to be government authorities. See Baroque Br. at 1-2.
JURISDICTION AND STANDARD OF REVIEW
The court exercises jurisdiction pursuant to 28 U.S.C. §1581(c).
The court will uphold Commerce’s determinations in CVD proceedings unless
they are “unsupported by substantial evidence on the record, or otherwise not in
accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). “Substantial evidence is more
than a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Consol. Edison Co. of N. Y. v. NLRB, 305
U.S. 197, 229 (1938) (citations omitted). “The substantiality of evidence must take into
account whatever in the record fairly detracts from its weight." Universal Camera Corp.
v. NLRB, 340 U.S. 474, 488 (1951).
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 5 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 6
A court “[is] obliged to set aside Commerce's determination if it is unsupported by
substantial evidence on the record[ ] or otherwise not in accordance with law. To fulfill
that obligation, . . . Commerce [must] examine the record and articulate a satisfactory
explanation for its action.” CS Wind Vietnam Co. v. United States, 832 F.3d 1367, 1376
(Fed. Cir. 2016) (internal quotation marks and citations omitted).
“[W]hen a statute grants an agency power to administer fact-intensive inquiries,
the agency's conclusion should be reversed only if the record is ‘so compelling that no
reasonable factfinder’ could reach the same conclusion.” Cooper (Kunshan) Tire Co. v.
United States, 45 CIT __, __, 539 F. Supp. 3d 1316, 1325 (2021) (citing INS v. Elias-
Zacarias, 502 U.S. 478, 484 (1992)).
“To be in accordance with law, the agency's decision must be authorized by the
statute, and consistent with the agency's regulations.” Yama Ribbons & Bows Co. v.
United States, 36 CIT 1250, 1253, 865 F. Supp. 2d 1294, 1297 (2012). “It is well-
established that an agency's action must be upheld, if at all, on the basis articulated by
the agency itself.” Motor Vehicle Mfrs. Ass'n of the U.S. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 50 (1983) (citations omitted). A reviewing court will “uphold a decision
of less than ideal clarity if the agency's path may reasonably be discerned.” Id. at 43
(quoting Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 286
(1974)).
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 6 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 7
DISCUSSION
I. 	Whether Commerce’s calculation of the benchmark price for plywood,
veneer and fiberboard is supported by substantial evidence and otherwise
in accordance with law
The court addresses first Baroque’s challenge to Commerce’s calculation of the
plywood, veneer and fiberboard benchmarks. Baroque challenges in particular
Commerce’s decision to exclude the ITTO TTMR export price dataset.
For the reasons described below, the court concludes that Commerce’s decision
to exclude the ITTO TTMR data for plywood and veneer is not supported by substantial
evidence. Commerce’s decision to exclude domestic price data for plywood and
fiberboard is in accordance with law and Commerce’s decision to include non-grade
specific data for plywood is supported by substantial evidence and otherwise in
accordance with law.
A. 	Additional Background
On November 15, 2023, Baroque submitted benchmark data for Commerce’s
valuation of reported inputs, including for plywood, veneer and fiberboard. See
Riverside Resubmission of Benchmark Data (Dec. 5, 2023) (“Baroque Benchmark
Submission”), PR 283-287. This submission included ITTO TTMR price data for: (1)
plywood export prices from Ghana, Peru and Brazil; (2) veneer export prices from
Ghana, Peru and Brazil; and (3) domestic prices in Brazil for plywood and fiberboard.
Id. at Ex. 3.
The same day, domestic petitioner American Manufacturers of Multilayered
Wood Flooring (“AMMWF”) submitted benchmark data including: (1) UN Comtrade
export data for plywood, veneer and fiberboard; (2) ITTO Biennial Review Statistics
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 7 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 8
(“BRS”) export data for plywood and veneer; (3) Stats.NZ export data for plywood; and
(4) Global Trade Atlas (“GTA”) export data for plywood and fiberboard. See Petitioners’
Benchmark Data Submission (Nov. 15, 2023) at 2-3, Ex. 1-A, 2-A, 3, 4, PR 253-264.
Mandatory respondent Jiangsu Senmao (“Senmao”) submitted also UN Comtrade data
for plywood, veneer and fiberboard. See Jiangsu Senmao Benchmark Data Submission
(Nov. 15, 2023) at 1-2, attach. 2, 7, PR 240-242.
In its preliminary results, Commerce calculated a tier two benchmark price for
plywood, veneer and fiberboard inputs by averaging data that reflected a “world market
price.” See PDM at 41-46. These averaged data included the ITTO TTMR dataset
submitted by Baroque. Id. at 43-44. Commerce excluded the UN Comtrade dataset
submitted by AMMWF because the underlying data lacked verified information as to
“exports to China,” which did not “allow [Commerce] to exclude exports to China from
the exports to world data that the petitioner provided.” PDM at 43. Commerce kept the
UN Comtrade dataset submitted by respondent Senmao because the underlying data
"allow[ed] [Commerce] to exclude exports to China from the world data when utilizing
UN Comtrade data, consistent with this practice.” Id.
In the Final Results, Commerce excluded both of the ITTO benchmark datasets. 4
See IDM. at 49-58. Commerce determined instead to calculate benchmarks for wood
product inputs by averaging only the UN Comtrade data submitted by Senmao (not the
data submitted by AMMWF), the Stats.NZ data and the GTA data. Id.
4 The ITTO TTMR dataset and the ITTO BRS dataset.
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 8 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 9
B. 	Legal Framework
A countervailing duty is “a remedial measure that provides relief to domestic
manufacturers by imposing duties upon imports of comparable foreign products that
have the benefit of a subsidy from the foreign government.” Fine Furniture (Shanghai)
Ltd. v. United States, 748 F.3d 1365, 1368 (Fed. Cir. 2014). The countervailing duty
imposed shall be “equal to the amount of the net countervailable subsidy.” 19 U.S.C. §
1671(a).
A subsidy is countervailable if: (1) a government or public authority has provided
a financial contribution; (2) a benefit is thereby conferred upon the recipient of the
financial contribution; and (3) the subsidy is specific to a foreign enterprise or foreign
industry, or a group of such enterprises or industries. 19 U.S.C. § 1677(5).
A benefit is conferred where “goods or services are provided for less than
adequate remuneration [“LTAR”],” which is “determined in relation to prevailing market
conditions for the good . . . which is subject to the investigation or review.” Id. §
1677(5)(E)(iv). Prevailing market conditions include “price, quality, availability,
marketability, transportation, and other conditions of purchase or sale.” Id.
To determine whether goods were provided for less than adequate remuneration,
“Commerce must determine the proper benchmark price.” Essar Steel Ltd. v. United
States, 678 F.3d 1268, 1273 (Fed. Cir. 2012) (citing 19 C.F.R. § 351.511). The
benchmark price is “the price that could have constituted adequate remuneration.” Fine
Furniture, 748 F.3d at 1368. To measure the adequacy of remuneration, Commerce
“compares the respondent’s reported costs for the input in question . . . with the
calculated benchmark price, which is representative of the market price for the good at
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 9 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 10
issue.” Beijing Tianhai Indus. Co. v. United States, 39 CIT __, __, 52 F. Supp. 3d 1351,
1356 n.9 (2015) (citing Fine Furniture, 748 F.3d at 1368).
Under 19 C.F.R. § 351.511(a)(2), Commerce sets forth the “bases for identifying
an appropriate market-based benchmark for measuring the adequacy of the
remuneration of a government provided good or service.” Id. In order of preference,
the potential benchmarks are as follows: “(1) market prices from actual transactions
within the country under investigation for the government-provided good (e.g., actual
sales, actual imports, or competitively run government auctions) (“tier one”
benchmarks); (2) world market prices that would be available to purchasers in the
country under investigation (“tier two” benchmarks); or (3) prices consistent with market
principles based on an assessment by the Department of the government-set price (“tier
three” benchmarks).” Id. (citing High Pressure Steel Cylinders from the People’s
Republic of China: Preliminary Affirmative Countervailing Duty Determination and
Alignment of Final Countervailing Duty Determination with Final Antidumping Duty
Determination, 76 Fed. Reg. 64,301, 64,304 (Dep't of Commerce Oct. 18, 2011)).
If there is no tier one EHQFKPDUNʊdefined as a “useable market-determined
price with which to make the comparison” ʊ then Commerce will calculate a tier two
benchmark that “measure[s] the adequacy of remuneration by comparing the
government price to a world market price where it is reasonable to conclude that such
price would be available to purchasers in the country in question.” 19 C.F.R. §
351.511(a)(2)(ii). In calculating a tier two benchmark, if “there is more than one
commercially available world market price,” Commerce is required to “average such
prices to the extent practicable, making due allowance for factors affecting
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 10 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 11
comparability.” Id. “These factors ensure that the composite benchmark reflects
prevailing market conditions in the [producer’s] home country. [The factors] include
‘price, quality, availability, marketability, transportation, and other conditions of purchase
or sale.’” RZBC Grp. Shareholding Co. v. United States, 39 CIT __, __, 100 F. Supp. 3d
1288, 1305 (2015) (citing 19 U.S.C. § 1677(5)(E)).
“The court’s role is not to assess whether the benchmark data Commerce used
was [sic] the ‘best available,’ but rather whether Commerce's choice was reasonable.”
Guizhou Tyre Co. v. United States, 42 CIT __, __, 348 F.Supp.3d 1261, 1274 (2018)
(citing Peer Bearing Company-Changshan v. United States, 27 CIT 1763, 1770, 298
F.Supp. 2d 1328, 1336 (2003)).
C. 	Analysis
In the Final Results, Commerce excluded the ITTO TTMR dataset for two
reasons: (1) the export price data did not permit Commerce to disaggregate exports
destined for China; and (2) the domestic price data did not contain all the information
necessary to construct delivered prices from these data. IDM at 51-52.
Baroque presents three reasons challenging Commerce’s decision to reject the
ITTO TTMR dataset, arguing that the determination was not supported by substantial
evidence or was otherwise contrary to law. The court addresses each reason in turn.
1. 	Whether Commerce’s decision to exclude the ITTO TTMR export
price data was supported by substantial evidence
Baroque argues that Commerce’s decision to exclude the ITTO TTMR export
price data was not supported by substantial evidence. In particular, Baroque asserts
that Commerce failed to identify anything in the record indicating that the data included
exports to China. See Baroque Br. at 12-13.
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 11 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 12
Commerce determined in the IDM that the export price data in the ITTO TTMR
dataset contained unverified export destinations such that those data could include
China as a destination. IDM at 51-52. Commerce explained that “if it is not possible to
exclude exports of an input to a market where Commerce has found that input market to
be distorted,” Commerce “typically will not use this export data source in constructing
benchmarks pursuant to 19 C.F.R. 351.11(a)(2)(ii).” Id. at 51. In sum, Commerce
determined that including these data would compromise the integrity of the benchmark
calculation.
Baroque maintains that Commerce’s decision to exclude the data based solely
on the absence of information regarding the destinations of the reported exports
constitutes “speculation” and that such “speculation” does not amount to a reasonable
inference that would support Commerce’s determination. See Baroque Br. at 13; see
also Pls.’ Reply Br. (“Baroque Reply Br.”) at 5, ECF Nos. 32-33.
Commerce’s decision to draw an inference that a dataset covering exports to
unverified destinations may have included exports to China was reasonable. See
Daewoo Elecs. Co. v. United States, 6 F.3d 1511, 1520 (Fed. Cir. 1993) (holding that
substantial evidence supports Commerce’s inference). It is not Commerce’s burden to
build the record. See QVD Food Co., Ltd., v. United States, 658 F. 3d 1318, 1324 (Fed.
Cir. 2011) (“The burden of creating an adequate record lies with [the interested party]
and not with Commerce.”) (citing Tianjin Mach. Imp. & Exp. Corp. v. United States, 16
CIT 931, 937, 806 F.Supp. 1008, 1015 (1992)).
Baroque cites to Catfish Farmers of Am. v. United States, 37 CIT 717 (2013), to
argue that Commerce’s inference was in fact speculation: “[S]peculation does not
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 12 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 13
amount to reasonable inference, as it provides no factually-grounded basis for
sustaining an agency's determination.” See Baroque Reply Br. at 5 (citing Catfish
Farmers, 37 CIT at 733). Catfish Farmers is not apposite. In Catfish Farmers, the
Court held that Commerce’s inference was not “factually-grounded” because it rested
on speculation contradicted by information on the record. Catfish Farmers, 37 CIT at
733. Here, Commerce drew a reasonable inference from the record, which, Commerce
noted, showed that export destinations were “[un]reliable” because they were not
“provided in a way that permits Commerce to exclude exports to China” and could not
be disaggregated. IDM at 51.
As Commerce explained, the “record of a case must establish that potential
benchmarks ‘do not include . . . export prices . . . into China.’” IDM at 51 (quoting
Certain Non-Refillable Steel Cylinders from the People’s Republic of China: Preliminary
Affirmative Countervailing Duty Determination and Alignment of Final Determination
with Final Antidumping Duty Determination, 85 Fed. Reg. 53,323 (Dep’t of Commerce
Aug. 28, 2020). Upon reviewing the record, Commerce found that the ITTO TTMR
export data — which report exports of veneer and plywood from Ghana, Peru and Brazil
to “all destinations” — were not provided in a way that permitted Commerce to ascertain
if some prices in the dataset related to exports that were destined for China. IDM at 51.
Therefore, Commerce determined that the record lacked the information necessary to
ensure the exclusion of exports destined for China. Id.
Baroque argues further that Commerce’s decision was unsupported by
substantial evidence because Commerce “fail[ed] to consider record evidence that
detracts from its determination,” and that Commerce’s determination was based on a
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 13 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 14
factual error. Baroque Br. at 15; Baroque Reply Br. at 7. In the IDM, Commerce
explained that “the [ITTO] TTMR data report AUVs for exports of certain species of
veneer and plywood from Ghana, Peru, and Brazil to all destinations.” IDM at 51 n. 217
(emphasis supplied). This statement was overly broad because Commerce did not
address record evidence indicating that some of the export price data are to specified
destinations. 5
Baroque argues that the record shows that the export price data for plywood
from Brazil are based entirely on exports to the European Union (“E.U.”) and the data
for plywood from Peru are based entirely on exports to Mexico. See Baroque Br. at 13-
15 (citing Baroque Benchmark Submission, Ex. 3). 	At oral argument, the government
conceded that Commerce’s characterization of the dataset as reflecting exports to “all
destinations,” did not account for entries identifying specified destinations for plywood
from Brazil and Peru. Oral Arg. Tr. at 8:3-7. In the IDM, however, Commerce did not
address whether those specified entries undermined Commerce’s conclusion that the
ITTO TTMR dataset lacked sufficient detail to permit Commerce to exclude potential
exports to China.
Baroque maintains that the record establishes also that the data for plywood and
veneer from Ghana are based on exports to “regional markets,” which Baroque asserts
“cannot reasonably be considered China, a continent and ocean away from Ghana.”
Baroque Reply Br. at 6; see also Baroque Br. at 12; Baroque Benchmark Submission,
Ex. 3. The government agrees that the data for plywood and veneer from Ghana are
5 At oral argument, the government conceded that it was “not completely accurate” to
say that the data report exports “to all destinations.” Oral Arg. Tr. at 5:25-6:1.
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 14 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 15
based on exports to “regional markets” rather than exports to “all destinations.” Def.’s
Resp. to Pls.’ Mots. for J. on the Agency R. (“Def. Br.”) at 15, ECF No. 29. However,
the government maintains that a reference to “regional markets . . . does not definitively
establish the location of the exports included in the dataset, such that Commerce was
unreasonable in its determination” that the data from Ghana “do not permit [Commerce]
to exclude export prices into China.” Id. at 14-15 (citing Baroque Benchmark
Submission at Exhibit 3).
Commerce erred in stating that the ITTO TTMR export data reported exports to
“all destinations”; however, that error does not necessarily render Commerce’s
determination unsupported by substantial evidence. If Commerce’s determination “is
still supported by substantial evidence — even with the errors — the errors are
harmless.” CVB Inc. v. United States, 47 CIT__, ___, 675 F. Supp. 3d 1324, 1343-44
(2023).
Baroque concedes that, based on the record, certain portions of the dataset —
including veneer exports from Brazil and Peru — list unspecified export destinations,
meaning that those destinations could include China. See Baroque Br. at 12, 14 (citing
Baroque Benchmark Submission, Ex. 3). However, at oral argument, Baroque
maintained that those segments of the dataset could be disaggregated from the dataset.
See Oral Arg. Tr. at 6:11-16.
Commerce in the IDM stated that there is “no means of breaking out and
removing” the underlying data. IDM at 51 n. 217. However, at oral argument,
Defendant acknowledged that Commerce did not analyze whether the data could be
separated into entries with specified export destinations and those with unspecified
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 15 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 16
export destinations. Oral Arg. Tr. at 8:8-12. Defendant confirmed that “Commerce
would … need to address and consider” on remand whether the data can be separated
into specified and unspecified export destinations (i.e., those data that could include
China as a destination), so that the existence of any groups of entries with unspecified
export destinations reasonably led Commerce to conclude that it could not ensure that
the entire ITTO TTMR benchmark did not include exports to China. Id. 6
In light of Commerce’s erroneous overstatement that the entire ITTO TTMR
dataset contained possible exports to China as unspecified destinations, and
Defendant’s concession at oral argument that Commerce was prepared to address on
remand whether the data can be disaggregated, the Court remands to Commerce to:
(1) correct its factual misstatement; (2) identify which portions of the ITTO TTMR export
dataset contain specified export destinations and which contain unspecified export
destinations; (3) explain whether the export price data from Ghana to “regional markets”
permit Commerce to exclude exports to China; (4) reconsider whether Commerce can
disaggregate the remainder of the dataset (other than Ghana’s exports to “regional
markets”) to exclude only data that contain unspecified export destinations; and (5)
reconsider whether Commerce can construct a benchmark price using any segregated
data that do not include unspecified destinations. Finally, if Commerce determines on
remand that it can segregate (as specified above) the export price data from Peru,
Brazil or Ghana, Commerce is directed also to address the issue of grade specificity in
its decision whether to include those data.
6 “I can’t say right now whether or not Commerce would be able to completely break
[the verifiable] data out, but that is something that . . . if there is a remand, that
Commerce would . . . need to address and consider.” Oral Arg. Tr. at 8:8-11.
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 16 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 17
2. 	Whether Commerce’s rejection of the ITTO TTMR domestic price
data was contrary to past practice
In view of Defendant’s statements at oral argument with respect to Commerce's
willingness to reconsider whether it can use the ITTO TTMR export data for a
benchmark price to measure adequate remuneration, the court does not consider at this
time the past practice argument as to the export data.
However, as noted, Baroque challenges also Commerce’s rejection of the ITTO
TTMR domestic price data for plywood and fiberboard as contrary to past practice. See
Baroque Br. at 15-16. In the IDM, Commerce rejected the ITTO TTMR domestic
Brazilian price data because ͆ 	the record does not contain all the information necessary
to construct delivered prices from these data as required by 19 C.F.R. §
351.511(a)(2)(iv).” IDM at 50.
Under § 351.511(a)(2)(iv), Commerce is required to “adjust the comparison price
to reflect the price that a firm . . . would pay if it imported the product.” 19 C.F.R. §
351.511(a)(2)(iv). This adjustment in the comparison price “will include delivery
charges.” Id. Commerce has separately said that inland freight charges count as
delivery charges. See IDM at 52 n. 226 (citing previous reviews in which Commerce
required inland freight prices). 7 In the IDM, Commerce found that “the record reveals no
party provided an amount for Brazilian inland freight and, accordingly, it is not possible
7 See Countervailing Duty Investigation of Certain Polyethylene Terephthalate Resin
from the People’s Republic of China: Final Affirmative Determination, 81 Fed. Reg.
13,337 (Dep’t of Commerce March 14, 2016), and accompanying IDM at cmt. 14 (citing
Certain Hot-Rolled Carbon Steel Flat Products from India: Final Results and Partial
Rescission of Countervailing Duty Administrative Review, 74 Fed. Reg. 20,923 (Dep’t of
Commerce May 6, 2009), and accompanying IDM at cmt. 13).
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 17 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 18
to adjust these domestic Brazilian prices to a price that a Chinese manufacturer would
have paid” as required by § 351.511(a)(2)(iv). IDM at 52-53.
Baroque argues that because Commerce previously accepted the same
domestic price data as provided without inland freight values in the 2020 MLWF review,
Commerce has a “practice” of not requiring those values. See Baroque Br. at 15-16.
Baroque asserts that Commerce’s determination was “arbitrary and capricious” because
Commerce failed to provide a reasonable “explanation” for its change in practice. See
id. at 6, 16.
An agency action that deviates from an established practice without a reasoned
explanation is arbitrary and capricious. See Huvis Corp. v. United States, 570 F.3d
1347, 1354 (Fed. Cir. 2009); SKF USA Inc. v. United States, 263 F.3d 1369, 1382 (Fed.
Cir. 2001). But to identify an established agency practice, the party challenging the
administrative action must show “the existence of ‘a uniform and established
procedure . . . that would lead a party, in the absence of notification of a change,
reasonably to expect adherence to the established practice or procedure.’” In re
Section 301 Cases, 46 CIT __, __, 570 F. Supp. 3d 1306, 1347 (2022) (citing Ranchers-
Cattlemen Action Legal Found. v. United States, 23 CIT 861, 884-85, 74 F. Supp. 2d
1353, 1374 (1999). An agency's exercise of discretion on a “case-by-case” and fact-
specific basis “complicates any efforts to divine ‘rules’ from past agency practice.”
Fujian Yinfeng Imp & Exp Trading Co., Ltd. v. United States, 46 CIT __, __,
607 F. Supp. 3d 1301, 1316 (2022).
Baroque has not cited any evidence demonstrating the existence of an
established procedure or methodology. Baroque cites only to Commerce’s use of ITTO
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 18 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 19
TTMR Brazilian domestic price data in the 2020 MLWF review. 8 Cf. Shadong Huarong
Machinery Co., LTD. v. United States, 30 CIT 1269, 435 F. Supp. 3d 1261 (2006)
(concluding that “two prior determinations are not enough to constitute an agency
practice that is binding on Commerce.”).
Commerce did not consider the issue of inland freight price data as required to
satisfy 19 C.F.R. § 351.511(a)(2)(iv) in the 2020 MLWF review. Multilayered Wood
Flooring from the People’s Republic of China: Final Results of Countervailing Duty
Administrative Review; 2020, 88 Fed. Reg. 34,828 (Dep’t of Commerce May 31, 2023).
In that review, Commerce considered only whether it should exclude categorically
domestic price data from a tier two benchmark because the data reflected domestic,
rather than export, prices, which the petitioner argued were not reflective of “world
market” prices. See id. at cmt. 9. Commerce rejected the argument that domestic
prices must be excluded categorically and explained that it “typically considers third-
country domestic prices to be available to purchasers on the world market” absent
evidence demonstrating that such prices are not available to foreign purchasers or are
otherwise distorted. Id.
The inland freight adjustment issue was not examined in the 2020 MLWF review.
Where “the issue was never examined in prior administrative reviews . . . it is not
8 Baroque argues also that Commerce’s decision is contrary to past practice because
Commerce relied on the ITTO TTMR domestic price data in the preliminary results but
then excluded the data “for the first time in the Final Results.” Baroque Br. at 11. This
Court has recognized that “Commerce is not bound by the positions taken or the
methodologies employed in its preliminary determinations.” U.S. Steel Corp. v. United
States, 34 CIT 252, 281, 712 F. Supp. 2d 1330, 1355 (2010) (citing Peer Bearing Co. v.
United States, 22 CIT 472, 481–82, 12 F. Supp. 2d 445, 456 (1998); Kumho Tire
(Vietnam) Co., Ltd. v. United States, 48 CIT __, __, 741 F. Supp. 3d 1277 (2024).
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 19 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 20
possible to determine whether prior facts were identical to this review and whether
Commerce altered the analytical framework.” Venus Wire Indus. Pvt. Ltd. v. United
States, 43 CIT__, __, 424 F. Supp. 3d 1369, 1376 (2019). Baroque identifies no
evidence demonstrating that the domestic Brazilian price data on the record in the 2020
MLWF review lacked inland freight values or that Commerce considered this issue.
In addition, Commerce has required inland freight data in prior proceedings in
which it used domestic price data to construct a tier two benchmark. See IDM at 52 n.
226 (citing Countervailing Duty Investigation of Certain Polyethylene Terephthalate
Resin from the People’s Republic of China: Final Affirmative Determination, 81 Fed.
Reg. 13,337 (Dep’t of Commerce March 14, 2016), and accompanying IDM at cmt. 14
(citing Certain Hot-Rolled Carbon Steel Flat Products from India: Final Results and
Partial Rescission of Countervailing Duty Administrative Review, 74 Fed. Reg. 20,923
(Dep’t of Commerce May 6, 2009) (“Hot-Rolled Carbon”), and accompanying IDM at
cmt. 13)). For instance, in Hot-Rolled Carbon, Commerce determined that inland freight
charges were delivery charges that were required to be included in domestic price data
for Commerce to properly “adjust the comparison price to reflect the price that a firm . . .
would pay if it imported the product, including delivery charges.” Id. at cmt. 13 (citing 19
C.F.R. § 351.511(a)(2)(iv)).
Therefore, the Court concludes that Commerce’s rejection of the ITTO TTMR
domestic Brazilian price data was not contrary to an established agency practice and
was not arbitrary and capricious.
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 20 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 21
3. 	Whether Commerce’s determination that plywood benchmarks
need not be grade specific was supported by substantial
evidence and otherwise in accordance with law
Baroque argues that Commerce’s plywood benchmark calculation was
unsupported by substantial evidence and not in accordance with law because the
datasets on which Commerce relied contained data on plywood grades that were not
comparable to data reflecting the plywood grades that Baroque actually purchased.
Baroque Br. at 18. For the reasons discussed below, the court concludes that
Commerce’s decision to include the UN Comtrade, Stats.NZ and GTA datasets is
supported by substantial evidence and in accordance with law.
In the Final Results, Commerce excluded the ITTO TTMR dataset entirely from
its wood product input benchmark calculation for the two reasons explained above: (1)
the inability to remove export prices to China; and (2) the inability to account for inland
freight expenses for Brazilian domestic prices for plywood and fiberboard. See supra
Sections I.C.1-2; see generally IDM at 49-52 (assessing “whether to exclude certain
ITTO data”).
In the IDM, Commerce addressed also Baroque’s argument that “each of the
plywood benchmarks . . . must be grade-specific.” 9 The plywood market is categorized
into grades ranging from Grade A (highest quality) through Grade D (lowest quality).
9 In its administrative case brief, Baroque argued that Commerce should “only use on
ITTO [TTMR] grade-specific” prices to value plywood.” See Riverside Administrative
Case Brief (Feb. 8, 2024), P.R. 313 (emphasis supplied). Baroque states that
Commerce did not address its arguments concerning plywood grade in the IDM.
Baroque Br. at 18. Commerce, however, addressed Baroque’s arguments concerning
plywood grade, explaining that “to the extent that [Baroque’s] argument is that each of
the plywood benchmarks we continue to rely on must be grade-specific, we disagree as
addressed below.” IDM at 53; see generally IDM at Comment 5B.
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 21 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 22
See Baroque Br. at 17. Baroque asserts that it purchased “only” lower-grade C/D
plywood and that the ITTO TTMR dataset “is the source on the record that most closely
matches Baroque’s plywood purchases,” compared to the data selected by Commerce,
which “cover all grades of plywood, including high priced A grade plywood.” Id. at 18.
(citing Baroque Benchmark Submission, Ex. 3). 10 Commerce explained that requiring
datasets limited to lower-grade plywood would be inappropriate because Baroque did
not provide sufficient documentation to support its claim that it used “only” lower-grade
C/D plywood. IDM at 54. Commerce determined also that “the grade-specific pricing
data on the record . . . calls into question the “significance” of the price differences
between plywood grades.” Id.
Baroque raises two arguments concerning plywood grade in support of its
request that the court instruct Commerce to recalculate its plywood benchmark. First,
Baroque asserts that Commerce’s plywood benchmark calculation was unsupported by
substantial evidence because Commerce disregarded “information [on the record]
demonstrat[ing]” that the data selected by Commerce, which “cover all grades of
plywood, including high priced A grade plywood” are “overly broad and distortive.”
Baroque Br. at 18. Baroque contends that the record demonstrates that Baroque’s
purchases were limited to C/D grade plywood and that Commerce disregarded
information in the record demonstrating the importance of grade in plywood valuation.
10 The plywood market is categorized into grades ranging from Grade A (highest quality)
through Grades B and C, to Grade D (lowest quality), and also includes hybrid grades
such as BB/CC or AA/BB. Baroque Br. at 17. The ITTO TTMR data for plywood from
Ghana are BB/CC grade, the data for plywood from Brazil are C/CC grade, and the data
for plywood from Peru are B and C grades. See Baroque Benchmark Submission, Ex.
3. In the IDM, Commerce stated that “the UN Comtrade, Stats.NZ and GTA data
include all grades of plywood,” meaning grades A through D. IDM at 54.
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 22 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 23
Id. Therefore, Baroque argues that the data selected by Commerce, which contain
prices for grades A through D plywood, are distortive and not comparable to the
plywood actually purchased by Baroque. See generally id. at 16-19.
Commerce noted that Baroque provided certifications from “some” of its third-
party suppliers stating that the plywood sold to Baroque was made with grade C or D
only. IDM at 54. However, Commerce found that these certifications did not cover “all
of [Baroque’s] reported plywood purchases.” Id. (emphasis supplied). Accordingly,
Commerce concluded that Baroque’s contention that it exported only grade C/D was not
supported by the record. Id.
In Evolutions Flooring, Inc. v. United States, this Court sustained Commerce’s
reliance on a dataset that encompassed a broader range of plywood grades than the
respondent claimed reflected its plywood purchases because Commerce determined
that the respondent there had failed to demonstrate that its purchases were limited to
lower-grade plywood. Evolutions Flooring, Inc. v. United States, 49 CIT__, __, 776 F.
Supp. 3d 1271, 1280 (2025) (“None of the documentation submitted by Baroque
demonstrates that Baroque purchased exclusively grade C/D plywood.”). Here, as in
Evolutions Flooring, Commerce determined reasonably that the record was insufficient
to support Baroque’s assertion that it used exclusively lower grades of plywood. IDM at
54.
Baroque’s second argument as to grade is that “[s]ince grade is a significant
factor affecting comparability and reflects ‘prevailing market conditions,’ Commerce is
mandated by statute to account for it.” Baroque Br. at 18 (citing 19 U.S.C. §
1677(5)(E)(iv)). Baroque notes that 19 U.S.C. § 1677(5)(E)(iv) mandates that
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 23 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 24
Commerce account for “prevailing market conditions” such as “price” and “quality” when
performing an LTAR benefit analysis. Id. at 9. Baroque argues that, by including
datasets which “cover all grades of plywood, including higher priced A grade plywood,”
Baroque Br. at 18, Commerce did not properly account for prevailing market conditions
and, as a result, the calculated benefit was “caused by product differences rather than
subsidization.” Baroque Reply Br. at 9.
In the IDM, Commerce addressed this argument as well, determining that
differences in grade did not have a “significant” impact on pricing. IDM at 54.
Commerce found that grade-based price differences reflected in the ITTO TTMR data
resulted in only “a relatively small 5 or 10 percent variation,” and that record pricing data
showed that lower grades were not consistently cheaper, as “prices for B/C grade
during the [period of review] were, in some instances, priced lower than C/C plywood.”
IDM at 54-55. Commerce noted also that other factors, such as plywood thickness,
appeared to have a greater impact on price in some instances. Id. 11
Commerce concluded that these broader, commercially available benchmark
datasets “would be available to purchasers in the country in question.” 19 C.F.R. §
351.511(a)(2)(ii). In doing so, Commerce made “due allowance for factors affecting
comparability” under § 351.511(a)(2)(ii).
11 Baroque disputes Commerce’s determination that grade is not a significant factor in
plywood pricing, but it raised this argument for the first time in its reply brief. See
Baroque Reply Br. at 8-9 (arguing that a 5–10 percent price difference is significant).
The argument is therefore waived. See United States v. Ford Motor Co., 463 F.3d 1267,
1276 (Fed. Cir. 2006) (“Arguments raised for the first time in a reply brief are not
properly before this court.”).
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 24 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 25
In this case, Commerce addressed adequately Baroque’s arguments concerning
grade specificity, determined reasonably both that the record did not support Baroque’s
claims to purchases exclusively of lower-grade plywood and that grade-based price
differences were not significant. 	IDM at 54-55. Additionally, Commerce cited its
“practice to utilize benchmarks derived from broad averages,” stating that “these
benchmarks need not reflect goods that are identical to the government-provided good.”
Id. at 54; see also id. at n. 228 (explaining that “the legal requirements governing
Commerce’s selection of benchmarks do not require perfection.”). On these bases,
Commerce’s decision to rely on “the broad market averages that the UN Comtrade,
GTA and Stats.NZ data represent” was reasonable. See id. at 54.
Accordingly, the court concludes that Commerce’s determination on these points
was supported by substantial evidence and was otherwise in accordance with law.
II. 	Whether Commerce’s application of AFA to find certain of Baroque’s input
suppliers to be government authorities was unlawful
The court addresses Baroque’s challenge to Commerce’s application of AFA to
find certain of Baroque’s input suppliers to be government authorities. Baroque argues
that Commerce’s application of AFA was unlawful for two reasons: (1) necessary
information was not missing from the record; and (2) Commerce failed to specify
deficiencies in the GOC’s responses and this failure did not permit the GOC to correct
such deficiencies. Baroque Br. at 7-8.
For the reasons discussed below, the court concludes that Commerce’s
application of AFA to find that certain of Baroque’s input suppliers are government
authorities was not in accordance with law. The court remands to Commerce to take
the actions set forth below.
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 25 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 26
A. 	Additional Background
On April 3, 2023, Commerce issued its initial countervailing duty questionnaire to
the GOC. See Letter from U.S. Department of Commerce to Embassy of the People’s
Republic of China Pertaining to Government of China’s Initial Questionnaire (Apr. 3,
2023) (“Initial Questionnaire”), PR 64.
In the “Input Producer Appendix” to the Initial Questionnaire, Commerce
requested information pertaining to the ownership and structure of Baroque input
suppliers, as well as the presence or involvement of any CCP entities in those suppliers.
See Initial Questionnaire at II-34 to II-38. Specifically, Commerce asked the GOC
“whether a CCP committee, branch or ‘primary organization’ has been formed” within
any of the suppliers and whether “any decisions taken by [a supplier] are subject to
review or approval by” the GOC or by any one of nine listed CCP-associated entities
(the “nine entities question”). Id. at II-36. Additionally, Commerce asked the GOC to
“identify any individual owners, members of the board of directors, or senior managers
who were Government or CCP officials during the POR” (the “CCP officials
question”). Id. at II-37.
Further, Commerce asked the GOC to “explain how [it] developed the information
used in [its] response . . . to determine whether or not company owners, members of the
board of directors or managers were or were not officials of any of the above nine
entities.” Id. For this question, Commerce asked the GOC to address the following
points: (1) the “records question”: “What records did you review to determine the
information that was reported in the response?”; (2) the “government sources question”:
“Explain whether there are sources at the national, provincial, municipal, or local levels
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 26 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 27
to determine whether company owners, members of the board of directors or managers
were officials of any of the above nine entities”; (3) the “annual reports question”: “In
addition to Government records (including CCP records), is there information in the
annual reports of the companies, such as biographical summaries, that would indicate
whether company owners, members of the board of directors or managers were officials
of any of the above nine entities?”; and (4) the “other documents question”: “Explain
whether there are any other company records or company documents that are
submitted to the Government that would indicate a person’s official role with the
Government, including the CCP.” Id.
On June 7, 2023, the GOC submitted its response to Commerce’s Initial
Questionnaire. See Response from DeKieffer & Horgan to Secretary of Commerce
Pertaining to Government of China’s Section II Questionnaire Response (June 7, 2023)
(“GOC IQR”), CR 82-112, PR 97-108. For the 18 input suppliers, the GOC responded
to the nine entities question as follows:
[[
]]
Id., Ex. LTAR-1 at 52-57.
For the same 18 input suppliers, the GOC responded to the CCP officials
question as follows: “There are no individual owners, members of the board of directors,
or senior managers who were Government or CCP officials during the POR at this
producer.” Id. at 71-73.
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 27 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 28
In response to the records question, the GOC explained that it “sent the relevant
questions to the input suppliers” and reported the responses it received from those
suppliers. Id. at 73-74. In response to the government sources question, the GOC
responded that there “is no central informational database to search for such
information.” Id. at 74. In response to the annual reports question, the GOC responded
that “[u]nder relevant Chinese laws, companies have no obligation to identify whether
their owners, members of the board of directors, or managers are officials or
representatives of any” of the nine entities.” Id. In response to the other documents
question, the GOC stated that “no other company records or company documents that
are submitted to the government would indicate a person’s official role with the
government or CCP.” Id.
On August 24, 2023, Commerce issued a supplemental questionnaire to the
GOC. See Letter from U.S. Department of Commerce to DeKieffer & Horgan Pertaining
to Government of China’s Supplemental Questionnaire (Aug. 24, 2023) (“Supplemental
Questionnaire”), CR 121, PR 213. Commerce requested additional information as to
how the GOC verified its responses (the “verification question”):
For [[ ]] input producers, you claimed that [[ 	]]
and [[ 	]]. Please
explain what, if any, steps you took to verify or further examine the accuracy
of this information, including what, if any, documentation was reviewed.
Provide documentation to support your response.
Id. at 7-8 (emphasis supplied).
On September 7, 2023, the GOC submitted its response to Commerce’s
Supplemental Questionnaire. See Response from DeKieffer & Horgan to Secretary of
Commerce Pertaining to Government of China Supplemental Questionnaire Response
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 28 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 29
(Sept. 7, 2023) (“GOC SQR”), PR 215. Regarding verification, the GOC stated that it
“provided the articles of associations [sic] of [each of] the input producers” and
confirmed that the companies’ articles of association prevented the involvement of
external parties, including the CCP, in company affairs. Id at 10. Although the GOC
provided signed statements from the suppliers, the GOC did not provide government
documentation in support of its response. Id.
B. 	Legal framework
A countervailable subsidy may be found where the entity providing the subsidy is
an “authority.” 19 U.S.C. § 1677(5)(B). An “authority” is defined as “a government of a
country or any public entity within the territory of the country.” Id. Commerce’s
“longstanding practice” is to treat “most government-owned corporations as the
government itself.” Countervailing Duties, 63 Fed. Reg. 65,348, 65,402 (Dep't of
Commerce Nov. 25, 1998).
Commerce may make determinations on the basis of the facts otherwise
available whenever “necessary information is not available on the record” or “an
interested party or any other person” (1) withholds information requested by Commerce;
(2) fails to submit such information on time or in the form and manner requested by
Commerce; (3) significantly impedes the proceedings; or (4) provides information that
Commerce is unable to verify. 19 U.S.C. § 1677e(a); see also 19 C.F.R. § 351.308(a).
In selecting from facts otherwise available, Commerce may use an inference that
is adverse to the interests of a party “if [that] party has failed to cooperate by not acting
to the best of its ability to comply with a request for information.” 19 U.S.C. §
1677e(b)(1); see also 19 C.F.R. § 351.308(c). A respondent's failure to cooperate to
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 29 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 30
“the best of its ability” is determined by “assessing whether [the] 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). If Commerce determines that a response to a request for information
does not comply with the request, Commerce “shall promptly inform the person
submitting the response of the nature of the deficiency and shall, to the extent
practicable, provide that person with an opportunity to remedy or explain the deficiency.”
19 U.S.C. § 1677m(d).
If Commerce finds that further information submitted in response to such
deficiency is unsatisfactory or untimely, Commerce may “disregard all or part of the
original and subsequent responses.” Id. However, Commerce “shall not decline to
consider information that is submitted by an interested party and is necessary to the
determination but does not meet all the applicable requirements . . .” if: (1) the
information is timely; (2) verifiable; (3) complete enough to be reliable; (4) the interested
party demonstrates that it acted to the best of its ability in providing the information and
meeting the requirements established by Commerce; and (5) Commerce can use the
information without undue difficulties. Id. § 1677m(e).
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 30 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 31
C. 	Analysis
1. 	Whether Commerce determined reasonably that necessary
information was missing from the record
The court addresses first whether Commerce determined reasonably that it
lacked necessary information to analyze whether certain of Baroque’s input suppliers
are government authorities.
Baroque argues that the GOC provided full and detailed responses to
Commerce’s inquiries and, therefore, necessary information was not missing from the
record. Baroque Br. at 29-35.
In the IDM, Commerce explained that it asked the GOC to provide “information
about the involvement of the CCP in each” of the input suppliers, information that
Commerce deemed “necessary to fully evaluate whether the purportedly privately-
owned input producers are ‘authorities.’” IDM at 44. Commerce stated that the GOC’s
responses were deficient because “the GOC did not provide any government
documentation to support its claim that the individually-owned suppliers were not
government authorities.” Id. at 48 (emphasis supplied). The GOC submitted
certifications from the input suppliers denying any CCP influence; however, Commerce
explained that those certifications were “not the government documents” required and
were “pro forma in nature, lacking particular details for examining possible government
involvement in each company.” Id. at 45.
Commerce explained that without “government documentation, [Commerce
cannot] conclude that there is no official CCP presence in any of the . . . input
suppliers.” Id. at 48. Accordingly, Commerce determined that the GOC withheld
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 31 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 32
necessary information and applied an adverse inference that the CCP exerts
“meaningful control over the [input suppliers] and their resources.” Id.
Baroque argues that Commerce determined incorrectly that the GOC withheld
necessary information. See Baroque Br. at 30-36. Baroque maintains that the GOC
provided full responses to Commerce’s inquiries and that Commerce failed to explain
what precise necessary information was missing. Id.; see also supra Background
Section II.A.
In the IDM, Commerce stated that the GOC’s company statements and narrative
denials of CCP influence, without supporting government documentation, did not
provide sufficient detail regarding the nature and extent of CCP involvement in the
suppliers. See IDM at 44-48. Commerce explained that the inquiry requires more than
mere company statements because “[p]ublicly available information indicates that
Chinese law requires the establishment of CCP organizations ‘in all companies, whether
state, private, domestic, or foreign-invested’ and that such organizations may wield a
controlling influence in the company’s affairs.” Id. at 47 (quoting Certain Metal Lockers
and Parts Thereof from the People’s Republic of China: Final Affirmative Countervailing
Duty Determination, 86 Fed. Reg. 35,741 (Dep’t of Commerce Jul. 7, 2021) and
accompanying IDM at cmt. 5; citing Off-the-Road Tires from the People’s Republic of
China: An Analysis of Public Bodies in the People’s Republic of China in Accordance
with the WTO Appellate Body’s Findings in WTO DS379 (Dep’t of Commerce May 18,
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 32 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 33
2012) at 35). 12 Commerce noted also that the GOC previously supplied adequate
government documentation indicating CCP involvement in the 2019 MLWF
administrative review. In that review, the GOC submitted a government summary
report, which “indicate[d] the influence of the CCP over the employees in the
company.” IDM at 47 (quoting Multilayered Wood Flooring from the People’s Republic
of China: Final Results and Partial Recission of Countervailing Duty Administrative
Review; 2019, 87 Fed. Reg. 36,305 (Dep’t of Commerce Jun. 16, 2022); accompanying
IDM at cmt. 5).
Commerce cited also Citric Acid and Certain Citrate Salts from the People’s
Republic of China: Final Results of Countervailing Duty Administrative Review; 2012, 79
Fed. Reg. 78,799 (Dep’t of Commerce December 31, 2014) (“Citric Acid”), stating: “in
past proceedings, the GOC provided and Commerce has verified government
information certifying that no company owners, member of the board of directors or
managers were government or CCP officials.” IDM at 48. In that review, the GOC
submitted “a certified letter from the CCP Committee of the village indicating that the
owner of the input suppliers was not the Secretary for the Party Committee during the
POR” and “established at verification through official government documentation
12 Baroque argues that the CCP Constitution requires only that “a primary party must be
formed in an organization where there are three or more party members,” and therefore
that “where there are not three party members in the company, no primary party is
necessary.” Baroque Br. at 32 (citing Off-the-Road Tires from the People’s Republic of
China: An Analysis of Public Bodies in the People’s Republic of China in Accordance
with the WTO Appellate Body’s Findings in WTO DS379 (May 18, 2012) (“2012 Public
Bodies Analysis”) at 35). Baroque further contends that CCP membership is sufficiently
limited such that many companies likely do not meet the three-member threshold. Id.
Commerce, however, explained that “[p]ublicly available information indicates that
Chinese law requires the establishment of CCP organizations in all companies.” IDM at
47 (citing 2012 Public Bodies Analysis) (emphasis supplied) (internal citations omitted).
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 33 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 34
provided by the GOC and the CCP that the owner of the input suppliers did not serve as
Secretary for the Party during the POR.” Id. (citing Citric Acid at cmt. 2). Accordingly,
Commerce added that its “request for information from the GOC is a request for
government information independent from company information.” Id. at 48.
In sum, Commerce explained adequately and determined reasonably that
“necessary information [was] not available on the record,” 19 U.S.C. § 1677e(a),
because the GOC’s responses, which consisted of internal company statements and
narrative denials, did not provide a sufficient basis for Commerce to assess the extent
of CCP involvement in the input suppliers. IDM at 45. Commerce found that, absent
government documentation addressing CCP involvement, the information on the record
was insufficient to permit a determination of whether the input suppliers were
government authorities. 13 Id. at 48.
2. 	Whether Commerce provided the GOC with notice and an
opportunity to remedy its deficient responses
The court turns next to whether Commerce provided the GOC with adequate
notice and an opportunity to remedy its deficient responses, as required by 19 U.S.C. §
1677m(d).
Baroque argues that Commerce did not inform the GOC that the specific
information provided by the GOC regarding the suppliers at issue was deficient,
including that Commerce required government documentation. See Baroque Br. at 32.
13 Given the number of times this precise issue has arisen in Commerce proceedings,
the court is puzzled as to why ʊDQGIUXVWUDWHGWKDWʊthere remains any question by
any party as to the necessary documentation to be provided.
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 34 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 35
Baroque notes that neither the nine entities question nor the CCP officials question in
the Initial Questionnaire requested supporting government documentation. Id. at 30.
Baroque asserts further that the only request for documentation regarding CCP
official involvement came in a supplemental questionnaire. Baroque Br. at 31. There,
Commerce required the GOC to “explain what, if any, steps you took to verify or further
examine the accuracy of this information, including what, if any, documentation was
reviewed.” GOC Supplemental Questionnaire Response (Sept. 5, 2023) (“GOC Supp”)
at 9-10, PR 215; Baroque Br. at 31. Baroque maintains that the supplemental
questionnaire did not explicitly reference any deficiencies in the GOC’s initial responses,
thereby denying to the GOC an opportunity to remedy any deficiency such as a failure
to provide government documentation. Baroque Br. at 31-32.
The government argues that: (1) Commerce complied with 19 U.S.C. § 1677m(d)
by twice requesting supporting documentation from the GOC regarding CCP presence,
including in both the initial and supplemental questionnaires. Def. Br. at 26-27; and (2)
the GOC had “constructive notice” of the need for government documentation. Id. at 26.
The court concludes that Commerce did not fulfill its obligations under §
1677m(d).
Section 1677m(d) requires that if Commerce determines that a response to a
request for information does not comply with the request, Commerce “shall promptly
inform the person submitting the response of the nature of the deficiency and shall, to
the extent practicable, provide that person with an opportunity to remedy or explain the
deficiency.” 19 U.S.C. § 1677m(d) (emphasis supplied).
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 35 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 36
The questions are, therefore: (1) whether Commerce adequately informed the
GOC that its responses were deficient for want of government documentation; and (2)
whether Commerce provided the GOC with an opportunity to remedy that
deficiency. For the following reasons, the court concludes with respect to both
questions that Commerce did not. In the “Input Producer Appendix” to the Initial
Questionnaire, Commerce requested information pertaining to the ownership and
structure of Baroque’s input suppliers, as well as the presence or involvement of any
CCP entities in those suppliers. See Initial Questionnaire at II-34 to II-38; see also
supra Background Section II.A (detailing the nine entities question, the CCP officials
question and related records and government sources questions). Neither the nine
entities question nor the CCP officials question requested that the GOC provide
supporting government documentation. Id. at II-36; Id. at II-37.
In the government sources question, Commerce inquired specifically as to
whether there existed government source documents sufficient for Commerce to
analyze the involvement of CCP-related entities in the input suppliers. See Initial
Questionnaire at II-37. This question did not, however, request that the GOC provide
such supporting documentation in the event that such government source documents
existed. Id.
In the Supplemental Questionnaire, Commerce repeated the nine entities and
CCP officials questions almost verbatim from the Initial Questionnaire, without
addressing the GOC’s prior responses or identifying any specific
deficiencies. Supplemental Questionnaire at 7 (“Please identify whether any owner,
director or manager is a member or representative of any of the [nine] entities”;
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 36 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 37
“[P]lease identify which owners, managers, and directors were Chinese government or
CCP officials during the POR”). Commerce did not identify a lack of government
documentation as a deficiency in the GOC’s initial responses, nor did Commerce
request that the GOC provide any government documentation in its supplemental
responses. 14
This Court has held that “Commerce satisfies its obligation under § 1677m(d) to
place the respondent on notice of the nature of a deficiency in its initial questionnaire
response where a supplemental questionnaire ‘specifically point[s] out and request[s]
clarification of [the] deficient responses,’ and identifies the information needed to make
the required showing.” Hyundai Steel Co. v. United States, 45 CIT __, __, 518 F. Supp.
3d 1309, 1323 (2021) (citing NSK Ltd. v. United States, 481 F.3d 1355, 1360 n.1 (Fed.
Cir. 2007)) (emphasis supplied); see also Maverick Tube Corp. v. United States, 857
F.3d 1353, 1361 (Fed. Cir. 2017) (holding that Commerce satisfied its obligation under §
1677m(d) when the respondent “failed to provide the information requested in
Commerce's original questionnaire, and the supplemental questionnaire notified [the
respondent] of that defect”).
Here, Commerce failed to satisfy its obligation under § 1677m(d) because
Commerce did not “specifically point[ ] out and request[ ] clarification” of the deficiency
(i.e., the lack of government documentation) in the GOC’s initial responses and did not
14 In the Supplemental Questionnaire, Commerce requested that the GOC provide
supporting documentation for its responses to the verification and CCP Opinion
questions. See Supplemental Questionnaire at 7-8; see also supra background Section
II.A. However, neither of these questions explicitly requested government
documentation and the GOC did not provide any government documentation in its
supplemental responses. See GOC SQR at 10-11.
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 37 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 38
identify government documentation as “the information needed to make the required
showing.” Maverick Tube Corp., 857 F.3d at 1361 (citing NSK Ltd. v. United States,
481 F.3d 1355, 1360 n.1 (Fed. Cir. 2007); see also Hyundai Steel Co., 518 F. Supp. 3d
at 1322-23 (citing NSK Ltd. v. United States, 481 F.3d 1355, 1360 n.1) (“Broadly drawn
initial or supplemental questionnaires may not sufficiently place a respondent on notice
of the nature of the deficiency, and deprive it of the opportunity to remedy that
deficiency.”).
Commerce’s repetition alone of the nine entities and CCP officials questions was
not sufficient to provide the GOC with notice that its initial responses to those questions
were deficient as to government documentation. This Court has held previously that
³>V@LPLODULWLHVLQௗTXHVWLRQVௗEHWZHHQWKHLQLWLDODQGௗVXSSOHPHQWDOௗTXHVWLRQQDLUHௗDORQHGR
QRWVHUYHDVHYLGHQFHWKDW&RPPHUFHIRXQGWKHLQLWLDOௗTXHVWLRQQDLUHௗUHVSRQVH
deficient.” Hyundai Heavy Indus. Co. v. United States, CIT __, __, 485 F. Supp. 3d
1380, 1402 (2020).
Commerce’s failure to identify the deficiency in the GOC’s responses and to
identify what information could be provided to cure that deficiency denied the GOC the
“opportunity to remedy or explain the deficiency,” as mandated by § 1677m(d). Notably,
Commerce’s questionnaires did not specifically request government documentation.
See supra note 14. The government argues that the GOC had “constructive notice” of
the need to provide government documentation because of this Court’s prior decisions
remanding to Commerce to request “government documentation” from the GOC. Def.
Br. at 26 (citing Baroque Timber Indus. (Zhongshan) Co. v. United States, 49 CIT __,
__, 776 F. Supp. 3d 1290, 1310 (2025); Baroque Timber Indus. (Zhongshan) Co. v.
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 38 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 39
United States, 49 CIT __, __, 766 F. Supp. 3d 1296, 1314 (2025). Constructive notice
is not applicable here. This Court’s opinions, which are the only published reference to
this issue, were published on April 3, 2025, well after the GOC filed its supplemental
questionnaire response in this proceeding on September 7, 2023. See GOC SQR.15
Further, § 1677m(d) requires actual notice from Commerce identifying the
specific deficiency and the information needed to cure it, which cannot be satisfied by
post hoc assertions of “constructive notice.” See Hyundai Steel Co., 518 F. Supp. 3d at
1322 (holding that Commerce must “sufficiently place a respondent on notice of the
nature of the deficiency”).
It is well established that the burden of creating an adequate record rests with a
respondent, see ABB Inc. v. United States, 42 CIT __, __, 355 F. Supp. 3d 1206, 1222
(2018); however, Commerce is “obligat[ed] to let the respondent know what information
[Commerce] really wants.” Ta Chen Stainless Steel Pipe, Ltd. v. United States, 23 CIT
804, 820 (1999); see also Queen's Flowers de Colombia v. United States, 21 CIT 968,
980, 981 F.Supp. 617, 628 (1997) (“alleged response deficiency cannot support
application of [AFA] where the information sought was apparently never requested”).
The GOC “cannot logically be faulted for failing to provide information beyond the
scope of the question that Commerce asked.” Jinan Yipin Corp. v. United States, 31
15 Nevertheless, given the number of times that this precise issue has arisen and that
the court has remanded this precise issue to Commerce, the court is puzzled as to why
ʊDQGIUXVWUDWHGWKDWʊ&RPPHUFHKDVQRW\HWIXOO\FRUUHFWHGLWVTXHVWLRQQDLUHVDQG
communications with the parties to obtain the information it seeks and thereby also to
conserve Commerce resources, party resources and Court resources. The court trusts
that Commerce will now fully correct its questionnaires, supplemental questionnaires
and any other communications to the parties to ensure that this issue does not arise yet
again.
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 39 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 40
CIT 1901, 1916, 526 F. Supp. 2d 1347, 1360-61 (2007). If Commerce viewed
government documentation from the GOC as necessary information, Commerce was
“obligat[ed] to let the [GOC] know.” Ta Chen, 23 CIT at 820; see also Jinan Yipin Corp.,
516 F. Supp. 2d at 1359 (“If . . . it was essential . . . for Commerce to be provided with
[certain] information, . . . then Commerce needed to request that specific information.”)
(emphasis supplied).
Accordingly, Commerce did not comply with its obligations under § 1677m(d) and
as a result Commerce’s application of AFA to find that certain of Baroque’s input
suppliers were government authorities is not in accordance with law. See 19 U.S.C. §
1677e(a) (stating that Commerce may make determinations on the basis of facts
available “subject to” the requirements of § 1677m(d)). The court directs Commerce, on
remand, to: (1) identify with specificity the deficiencies in the GOC’s initial or
supplemental responses to the nine entities, CCP officials and other related questions;
(2) describe precisely and clearly the nature of each deficiency and what information
could correct that deficiency; (3) if Commerce continues to determine that supporting
government documentation is necessary information, request that government
information explicitly from the GOC; and (4) provide the GOC an opportunity consistent
with § 1677m(d) to remedy any specified deficiencies.
CONCLUSION
In conclusion, the court sustains in part and remands in part Commerce’s Final
Results. For the foregoing reasons, it is hereby
ORDERED that Commerce’s calculation of the plywood and veneer benchmarks
is remanded for further explanation; it is further
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 40 of 41

Court No. 24-00106 	PUBLIC VERSION 	Page 41
ORDERED that Commerce’s calculation of the fiberboard benchmark is
sustained; it is further
ORDERED that Commerce’s decision to apply AFA to find certain of Baroque’s
input suppliers to be government authorities is remanded for compliance with §
1677m(d); it is further
ORDERED that Commerce shall file its remand results within 90 days following
the date of this Order; it is further
ORDERED that within 14 days of the date of filing of Commerce’s remand
results, Commerce shall file an index and copies of any new administrative record
documents; and it is further
ORDERED that, if applicable, the parties shall file a proposed scheduling order
with page limits for comments on the remand results no later than seven days after
Commerce files its remand results with the Court.
SO ORDERED.
/s/ 	Timothy M. Reif
Timothy M. Reif, Judge
Dated: April 7, 2026
New York, New York
Case 1:24-cv-00106-TMR Document 50 Filed 04/23/26 Page 41 of 41