Diamond Sawblades Manufacturers' Coalition v. United States

Slip Op. 21-150
UNITED STATES COURT OF INTERNATIONAL TRADE
Before: Claire R. Kelly, Judge
Court No. 17-00167
OPINION
[Sustaining 	the 	U.S. 	Department 	of 	Commerce’s 	second 	Final 	Remand
Redetermination in its sixth annual review of the antidumping duty order on
diamond sawblades and parts thereof from the People’s Republic of China.]
Dated: October 27, 2021
Daniel B. Pickard, Maureen E. Thorson, and Stephanie M. Bell, Wiley Rein LLP, of
Washington, DC, argued for plaintiff Diamond Sawblades Manufacturers’ Coalition.
John J. Todor, Senior Trial Counsel, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, argued for defendant United States. Of counsel was Paul
K. 	Keith, 	Attorney, 	Office 	of 	the 	Chief 	Counsel 	for 	Trade 	Enforcement 	and
Compliance, U.S. Department of Commerce of Washington, DC.
Gregory S. Menegaz, J. Kevin Horgan, and Alexandra H. Salzman, deKieffer &
Horgan, PLLC of Washington, DC argued for defendant-intervenor Bosun Tools Co.,
Ltd.
THE DIAMOND SAWBLADES
MANUFACTURERS’ COALITION,
Plaintiff,
v.
UNITED STATES,
Defendant,
and
BOSUN TOOLS CO., LTD.,
Defendant-Intervenor.
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Kelly, 	Judge: 	Before 	the 	court 	is 	the 	U.S. 	Department 	of Commerce’s
(“Commerce”) remand redetermination filed pursuant to the court’s order for further
proceedings in accordance with Diamond Sawblades Mfrs.’ Coal. v. United States, 986
F.3d 1351 (Fed. Cir. 2021); Final Remand Redetermination, Diamond Sawblades
Mfrs.’ Coal. v. United States, Ct. No. 17-00167, Appeal No. 20-1478, July 13, 2021,
ECF No. 74-1 (“Second Final Remand Redetermination”); see Order, Mar. 25, 2021,
ECF No. 71; see also Diamond Sawblades, 986 F.3d 1351. 	In its opinion, the U.S.
Court of Appeals for the Federal Circuit (“Court of Appeals”) instructed Commerce to
reconsider its application of facts otherwise available with an adverse inference
(“AFA”) 1 to sales of which the country-of-origin information was determined using
the product code or unit price. 	Diamond Sawblades, 986 F.3d at 1367. 	Defendant-
intervenor 	Bosun 	Tools 	Co., 	Ltd. 	(“Bosun”) 	challenges 	Commerce’s 	remand
redetermination as not supported by substantial evidence and contrary to law and
requests that the court remand the case. 	See Def.-Intervenor [Bosun]’s Comments
on Second Remand Redetermination, Aug. 12, 2021, ECF No. 78 (“Bosun’s Second
Remand Comments”). 	Defendant United States and Plaintiff Diamond Sawblades
1 Parties and Commerce sometimes use the shorthand “adverse facts available” or
“AFA” to refer to Commerce’s reliance on facts otherwise available with an adverse
inference to reach a final determination. 	However, AFA encompasses a two-part
inquiry pursuant to which Commerce must first identify why it needs to rely on facts
otherwise available, and second, explain how a party failed to cooperate to the best of
its ability as to warrant the use of an adverse inference when “selecting among the
facts otherwise available.” 	See Tariff Act of 1930, as amended, § 776, 19 U.S.C.
§ 1677e(a)–(b) (2018).
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Manufacturers’ Coalition (“DSMC”) request that the court uphold the Second Final
Remand Redetermination in its entirety. 	Pl. [DSMC]’s Revised Resp. to [Bosun’s
Second Remand Comments] (Confidential Version), Sept. 13, 2021, ECF No. 81
(“DSMC Resp.”); Def.’s Resp. to Comments on Remand Results, Sept. 13, 2021, ECF
No. 79 (“Def.’s Resp.”). 	For the following reasons, the court sustains Commerce’s
Second Final Remand Redetermination.
BACKGROUND
In 2006 Commerce issued an antidumping duty order covering “diamond
sawblades and parts thereof” (“sawblades”) imported from the People’s Republic of
China (“China”). Diamond Sawblades and Parts Thereof from [China], 71 Fed. Reg.
29,303 (Dep’t Com. May 22, 2006) (final deter. of sales at less than fair value and final
partial affirmative deter. of critical circumstances). 	On April 27, 2016, Commerce
selected Bosun, a Chinese exporter and producer of sawblades, for individual
investigation 	during the 	sixth 	annual 	administrative 	review. 	Selection 	of 	an
Additional Respondent for Individual Examination in the 2014-2015 Antidumping
Duty Admin. Rev. at 1–2, PD 166, CD 117, Doc. No. 3463908-01 (Apr. 27, 2016).
Sawblades produced by Bosun are sent to Bosun Tools, Inc., one of two of its U.S.
importer-affiliates. 	Letter from deKieffer & Horgan, PLLC to Sec’y Com., re:
Diamond Sawblades from [China] – Sections C & D Questionnaire Resp. at C-1, P.R.
207-210, C.R. 132-143, Doc. No. 3483626-01 (July 1, 2016) (“2016 Questionnaire
Resp.”); Second Final Remand Redetermination at 2. 	Bosun’s second importer-
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affiliate, Pioneer Tools Inc. imports sawblades from Thailand not covered by the
antidumping order. 	2016 Questionnaire Resp. at C-1–2; Second Final Remand
Redetermination at 2. 	Bosun’s importer-affiliates sold sawblades to one another.
2016 Questionnaire Resp. at C-1–2.
To calculate Bosun’s antidumping margin, Commerce needed to identify the
origin of the sawblades sold by the importer-affiliates, information that neither Bosun
nor its importer-affiliates recorded. Second Final Remand Redetermination at 2; see
2016 Questionnaire Resp. at C-1–3. 	Bosun attempted to collect country-of-origin
information using three methods: (1) identifying the product code, which in some
cases was specific to the country of origin; (2) identifying the unit price; and (3)
making an inference that importer-affiliates generally sold product using a first-in,
first-out (“FIFO”) method. 2016 Questionnaire Resp. at C-2–3; Second Final Remand
Redetermination at 2. Commerce determined that the information provided by Bosun
was reliable despite a discrepancy 2 uncovered during the verification of the FIFO
methodology and assigned Bosun a weighted average dumping margin of 6.19
percent. 	Verification of the U.S. Sales Resp. of [Bosun] at 10–11, PD 383, CD 365,
Doc. No. 3573591-01 (May 17, 2017) (“Verification Report”); Diamond Sawblades and
Parts Thereof from [China], 82 Fed. Reg. 26,912, 26,912 (Dep’t Com. June 6, 2017)
(final results of antidumping duty admin. rev.; 2014-2015) (“Final Results”) and
2 Bosun’s FIFO methodology reported smaller quantities of subject merchandise than
the 	original 	quantities 	invoiced 	for 	two 	of 	the 	on-site 	selected 	sales 	traces.
Verification Report at 10.
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accompanying Issues and Decision Memo. at 25–27, Doc. No. 3578943-01 (June 6,
2017) (“Final Decision Memo.”); see Second Final Remand Redetermination at 2.
The domestic-industry DSMC challenged inter alia, Commerce’s decision not
to use AFA before this court. 3 	[DSMC’s] Memo. in Supp. of Rule 56.2 Mot. for J. on
Agency R., Dec. 5, 2017, ECF No. 28; see Diamond Sawblades Mfrs.’ Coal. v. United
States, 42 CIT __ , Slip op. 18-146 (Oct. 23, 2018) (“Slip Op. 18-146”). 	This court
concluded 	Commerce’s 	determination 	was 	at 	odds 	with 	the 	Court 	of 	Appeals’
precedent regarding the “best of its ability” standard and remanded for clarification
or reconsideration. 	Slip Op. 18-146 at 7–14. 	Commerce issued the Final Remand
Redetermination on April 17, 2019, using AFA for all of Bosun’s sales of sawblades
during the review period due to the unreliability of the FIFO methodology. 	Final
Remand Redetermination [Slip Op. 18-146], Apr. 17, 2019, ECF No. 43-1 (“First
Remand Redetermination”). Bosun challenged the redetermination before this court,
which affirmed Commerce’s determination. 	Diamond Sawblades Mfrs.’ Coal. v.
United States, 43 CIT __, __, 415 F. Supp.3d 1365 (2019). 	Bosun appealed to the
Court of Appeals. Diamond Sawblades, 986 F.3d at 1351.
On appeal, Bosun challenged Commerce’s decision to disregard all the origin
data Bosun provided and the application of facts otherwise available, as unsupported
3 This court remanded the case for clarification or reconsideration of Commerce’s
decision not to use AFA, Slip Op. 18-146 at 18, the use of the Thai surrogate data, id.
at 24–25, and its determination of the dumping margin for the separate rate. Id. at
26.
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by substantial evidence. 4 Id. at 1362. The Court of Appeals determined that it was
unclear whether country-of-origin information obtained for sales using the product
code or unit price was unreliable, and therefore, the decision to disregard all of the
country-of-origin information was unsupported by substantial evidence. Id. at 1366.
The Court of Appeals remanded to determine whether substantial evidence existed
to support a finding that the country-of-origin information determined using the
product code or unit price was unreliable. Id. at 1367. If Commerce determined that
there was no basis for the application of facts otherwise available to sales other than
the sales where the country of origin was determined using the FIFO methodology
(“FIFO Sales”), the Court of Appeals instructed Commerce to redetermine how
adverse inferences applied to the matter. 	Id. 	On March 25, 2021, this court
remanded the case to Commerce for proceedings consistent with the Court of Appeals’
opinion in Diamond Sawblades. Order, Mar. 25, 2021, ECF No.71.
On July 13, 2021, Commerce filed its Second Final Remand Redetermination.
Second Final Remand Redetermination. 	On August 12, 2021, Bosun filed its
comments on the Second Final Remand Redetermination. 	Bosun’s Second Remand
Comments. DSMC filed its comments on September 14, 2021. DSMC Resp.
4 Bosun also challenged this court’s initial decision to remand to Commerce for abuse
of discretion. Diamond Sawblades, 986 F.3d at 1361. The Court of Appeals reviewed
this court’s initial remand decision and found no abuse of discretion or material legal
error. Id.
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JURISDICTION AND STANDARD OF REVIEW
This court has jurisdiction pursuant to section 516A(a)(2)(B)(iii) of the Tariff
Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) 5 and 28 U.S.C. § 1581(c)
(2018), which grant the court authority to review actions contesting the final
determination in an administrative review of an antidumping duty order. The court
will uphold Commerce’s determination unless it is “unsupported by substantial
evidence on the record, or otherwise not in accordance with law.” 	19 U.S.C.
§ 1516a(b)(1)(B)(i). “The results of a redetermination pursuant to court remand are
also reviewed ‘for compliance with the court’s remand order.’” 	Xinjiamei Furniture
(Zhangzhou) Co. v. United States, 38 CIT __, __, 968 F. Supp. 2d 1255, 1259 (2014)
(quoting Nakornthai Strip Mill Public Co. v. United States, 32 CIT 1272, 1274 (2008)).
DISCUSSION
Commerce reviewed its application of AFA to the country-of-origin information
supplied by Bosun. 	Second Final Remand Redetermination at 4–5. 	Commerce
determined 	that 	there 	were 	no 	reliability 	issues 	with 	the 	country-of-origin
information derived from methods using the product code or unit price and did not
select from the facts otherwise available for sales using those methodologies. 	Id. at
4. 	Commerce continued to find the FIFO methodology unreliable and determined
that resorting to AFA remained warranted for the FIFO Sales. 	Id. at 4–5. 	Bosun
5 Further citations to the Tariff Act of 1930, as amended, are to the relevant
provisions of Title 19 of the U.S. Code, 2018 edition.
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challenges the application of adverse inferences to the FIFO Sales arguing that
Commerce should apply neutral facts instead. 	Bosun’s Second Remand Comments
at 8–12. 	In the alternative, Bosun argues that if AFA is applied, the scope of its
application should be limited to the missing country-of-origin information for the
FIFO Sales. Id. at 12–15. Bosun also challenges the inclusion of intracompany sales
in Commerce’s calculations. 	Id. at 5–8. 	Finally, the court reviews Commerce’s
decision to use the Thai surrogate value for valuing copper powder and copper iron
clab for compliance with this court’s previous remand order. 	Second Final Remand
Redetermination at 7–11; Slip Op. 18-146 at 24–26.
I. 	The Application of Facts Available with Adverse Inferences
Commerce continued to apply AFA to the FIFO sales in the Second Final
Remand Redetermination. Second Final Remand Redetermination at 17–18. Bosun
challenges Commerce’s continued use of adverse inferences to the FIFO Sales, the
application of adverse inferences to the sale prices of the FIFO Sales, and the
inclusion of what it claims are intracompany sales in the FIFO Sales to which the
adverse inferences apply. 	Bosun’s Second Remand Comments at 5–15. 	For the
following reasons, the court sustains Commerce’s use of adverse inferences and the
inclusion of the alleged intracompany sales.
A. Adverse Inferences
Bosun argues that Commerce should apply neutral facts available to the FIFO
Sales because Bosun cooperated to the best of its ability. 	Bosun’s Second Remand
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Comments 	at 	8–12. 	Defendant 	and DSMC 	respond 	that 	Commerce 	correctly
concluded that Bosun failed to cooperate to the best of its ability by failing to maintain
full and complete country-of-origin records. Def.’s Resp. at 15; DSMC Resp. at 9–12.
If necessary information is not available on the record, Commerce shall use
facts otherwise available and may use an adverse inference if it determines that the
respondent failed to cooperate to the best of its ability. 6 	19 U.S.C. § 1677e. 	If an
interested 	party 	submits 	information 	that 	does 	not 	fully 	comply 	with 	all
requirements, Commerce must consider whether the interested party cooperated to
the best of its ability. 	See id. § 1677m(e)(4). 	An interested party cooperates to the
best of its ability when it does “the maximum it is able to do.” Nippon Steel Corp. v.
United States, 337 F.3d 1373, 1382 (Fed. Cir. 2003). 	Decisions by Commerce must
be supported by substantial evidence. 	19 U.S.C.S. § 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. v. NLRB, 305 U.S. 197, 229 (1938).
Upon 	review, 	Commerce 	determined 	that 	it 	would 	no 	longer 	use 	facts
otherwise available for country-of-origin information obtained using the product code
or unit price methodologies. Second Final Remand Redetermination at 4. However,
Commerce affirmed the use of facts otherwise available regarding the FIFO Sales
6 Adverse inferences may be “derived from the petition, a final determination in the
investigation, . . . any previous review . . . or determination, . . . or any other
information placed in the record.” 19 U.S.C. § 1677e(b)(2).
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because it found that Bosun “failed to maintain full and complete records regarding
country of origin, despite its apparent ability to do so . . . and awareness of the need
for distinguishing the country of origin of its merchandise for export.” 	Id. at 5.
Commerce maintained that the country-of-origin information gathered using the
FIFO methodology was unreliable and that Bosun failed to cooperate to the best of
its ability. 	Id. at 4–6; see also First Remand Redetermination at 10; Diamond
Sawblades, 986 F.3d at 1360. 	Thus, Commerce applied an adverse inference in
connection with the FIFO Sales. Second Final Remand Redetermination at 5–6.
Commerce’s determination is supported by substantial evidence. The Court of
Appeals 	left 	undisturbed 	this 	court’s 	decision 	sustaining 	Commerce’s 	prior
determination regarding Bosun’s FIFO Sales. See Diamond Sawblades, 986 F.3d at
1364, 1367. In that decision, and as Commerce continues to find here, although the
best of its ability standard does not require perfection, the standard compels
respondents to take reasonable steps to keep and maintain complete records that they
would reasonably be required to produce in an antidumping investigation. 	Id. at
1366–1367; Second Final Remand Redetermination at 5, 17–18; see Nippon Steel
Corp., 337 F.3d at 1382–1384. 	It is reasonable for Commerce to expect that an
exporter would maintain country of origin records. Slip Op. 18-146 at 11; see Second
Final Remand Redetermination at 18. Since Bosun failed to maintain such records,
the maximum it could do, Bosun attempted to fill the informational gap, using inter
alia, the FIFO methodology. Second Final Remand Redetermination at 2. However,
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during verification of the FIFO Sales Commerce identified issues related to the
reliability of the information reported. 	Verification Report at 10–11. 	As a result,
Commerce could not verify that the country-of-origin information was correct for the
FIFO 	Sales 	and the 	informational 	gap persisted. 	See 	Second Final 	Remand
Redetermination at 5. 	Seeking to fill that gap, Commerce reasonably used AFA
because the gap is a direct result of Bosun’s failure to maintain adequate records and
no other information existed on the record to fill the gap. 7
It is reasonably discernable that Commerce found Bosun’s arguments that
Commerce overlooked that Bosun relocated its main manufacturing operations for
exports to Thailand, was no longer a top tier Chinese exporter of subject goods, and
did not have reason to contemplate sales from multiple origins during prior reviews
unpersuasive. See Second Final Remand Redetermination at 17–18; see also Bosun’s
Second Remand Comments at 10. 	Commerce continued to find that Bosun should
have been familiar with Commerce’s review proceedings and aware that it would need
7 Bosun argues that it did not maintain country of origin records for the sawblades
because its unaffiliated U.S. customers do not care about the origin of the sawblades.
Bosun’s Second Remand Comments at 9–10. 	It is reasonably discernable that
Commerce determined Bosun’s unaffiliated U.S. customers lack of concern regarding
origin is irrelevant. Commerce explained that the Court of Appeals upheld its use of
AFA for the FIFO Sales. Second Final Remand Redetermination at 5–6. Commerce
continued by relying on precedent from the Court of Appeals explaining that
exporters are required to take reasonable steps to maintain information that is likely
to be asked for if reviewed. Id. at 18. An exporter has not complied with the best of
its ability standard if the information missing is due to inadequate recordkeeping.
Id. 	On remand, Commerce continued to find that Bosun failed to cooperate to the
best of its ability because it failed to maintain country of origin records. Id. at 5, 17–
18.
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to 	distinguish 	country-of-origin 	information 	because 	Bosun 	was 	a 	mandatory
respondent in the original investigation and two reviews. 8 	Second Final Remand
Redetermination at 5; see also First Remand Redetermination at 4, 21–22; Slip Op.
18-146 at 9. Commerce’s determination is reasonable.
B. 	The Scope of the Adverse Inferences
In addition to the application of the AFA rate to the FIFO Sales listed in the
U.S. sales database, Commerce also applied a per unit AFA rate to all of the FIFO
Sales not listed in the U.S. sales database. 9 Second Final Remand Redetermination
at 6. Bosun argues that Commerce unlawfully applied an adverse inference when it
disregarded the prices of the FIFO Sales reported in the U.S. sales database and
applied an AFA rate of 82.05 percent to all the FIFO Sales of Chinese origin. 10
8 Bosun was not initially called as a mandatory respondent, instead it requested
review. 	See Letter from deKieffer & Horgan to Sec’y Com., re: Diamond Sawblades
from [China] – Request for Admin. Rev., 2014 2015 Doc. No. 3420991-01 (Nov. 30,
2015).
9 Bosun’s FIFO methodology divided sawblades into Chinese or Thai sawblades. See
Second Final Remand Redetermination at 2. Sawblades that were labeled Thai were
excluded from the U.S. sales database. See id. at 6. Given the reliability issues with
the FIFO method, Commerce reasonably considered all the FIFO Sales Chinese and
therefore subject merchandise. Id. at 6–7.
10 A dumping margin calculation compares the price at which the subject merchandise
is sold in the United States with the subject merchandise’s normal value. 	See 19
U.S.C. § 1675 (a)(2). 	For a nonmarket economy (“NME”), like China, Commerce
begins its review with the rebuttable presumption that all companies within that
country 	are 	subject 	to 	government 	control 	and 	should 	be 	assessed 	a 	single
antidumping duty rate. 	See Sigma Corp. v. United States, 117 F.3d 1401, 1405-06
(Fed. Cir. 1997) (approving Commerce’s application of a presumption of government
(footnote continued)
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Bosun’s Second Remand Comments at 12–15. 	Defendant and DSMC argue that
Commerce correctly applied the AFA rate to all the FIFO Sales because the lack of
reliable country-of-origin information obscures both the country of origin and the
price of the sales. Def.’s Resp. at 20–22; DSMC Resp. at 12–15. For the reasons that
follow, Commerce’s decision to apply the AFA rate to all the FIFO Sales is reasonable.
On remand, Commerce issued a supplemental questionnaire requesting that
Bosun identify which of the sales within the U.S. sales database were determined to
be of Chinese origin using the FIFO method and Bosun responded. 	Second Final
Remand Redetermination at 6; 	Diamond Sawblades from [China] Supplemental
Questionnaire 	for 	Remand, 	Doc. 	No. 	4110206-01 	(Apr. 	12, 2021); 	Letter 	from
deKieffer & Horgan, PLLC to Sec’y Com., re: Diamond Sawblades from [China] –
Remand Supplemental Questionnaire, CD 2 nd REM 2, PD 2 nd REM 2-4, (Apr. 19,
2021) (“Second Supplemental Questionnaire Resp.”). 	Using the information in the
supplemental questionnaire response and the sequence numbers in the U.S. sales
database, Commerce identified all the FIFO Sales of Chinese origin in the U.S. sales
control). However, if a company can establish de jure and de facto independence from
the government, Commerce assigns it a separate rate. Sparklers from [China], 56
Fed. Reg. 20,588, 20,589, (Dep't Com. 1991) (final deter.); see Sigma Corp, 117 F.3d
at 1405–1407. 	Here, Commerce has determined that the China-wide rate is 82.05
percent, which it applied in place of the FIFO Sales data provided by Bosun. Second
Final Remand Redetermination at 22; see Diamond Sawblades and Parts Thereof
from [China]: Notice of Court Decision Not in Harmony With the Final Results of Rev.
and Amended Final Results of the Antidumping Duty Admin. Rev., 81 Fed. Reg.
36,261, 36,262 (Dep’t Com. June 6, 2016) (establishing that that the China-wide rate
is 82.05 percent).
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database 	and 	applied 	an 	AFA 	rate 	of 	82.05 	percent. 	Second 	Final 	Remand
Redetermination at 6; Letter from Thomas Schauer, Senior Int’l Trade Compliance
Analyst, AD/CVD Operations, Office I, re: Diamond Sawblades and Parts Thereof
from [China]: Final Remand Results Calculation Memo. for [Bosun] at 3, Doc. No.
4143355 (July 13, 2021). Commerce also calculated a per-unit amount AFA rate and
applied it to all FIFO Sales not listed in the U.S. sales database. 	Second Final
Remand Redetermination at 6.
Bosun argues Commerce should apply an adverse inference that all FIFO Sales
are of Chinese origin, but that it should not disregard the U.S. sales price data
previously submitted in connection with sales identified as Chinese sales. 	Bosun’s
Second Remand Comments at 12–13. 	Relying on this court’s decision in Dillinger
France S.A. v. United States, 350 F. Supp.3d 1348 (Ct. Int’l Trade 2018), Bosun
argues that “Commerce cannot use adverse inferences to substitute information that
is on the record.” 	Id. at 14.
Bosun’s argument assumes that all the FIFO Sales that it claimed were
Chinese and placed in the U.S. sales database are Chinese sales. 	However,
Commerce determined that the FIFO methodology did not yield reliable country-of-
origin information. 	Second Final Remand Redetermination at 5. 	In light of the
identified reliability issues, Commerce reasonably concluded it could not be certain
that the FIFO Sales included in the U.S. sales database were Chinese, nor could it be
certain that all of the FIFO Sales excluded from the U.S. sales database were Thai.
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See id. at 21. In response to Bosun’s argument that Commerce should determine that
all 	FIFO 	Sales 	were 	Chinese, 	see 	Bosun’s 	Second 	Remand 	Comments 	at 	13,
Commerce explained that Bosun’s proposed application of adverse inferences would
not lead to an accurate margin calculation because there was a possibility that the
margin calculation could involve sales of Thai sawblades. 	Second Final Remand
Redetermination at 21–22. Commerce explains that although Bosun correctly states
that the information missing from the record is the country-of-origin for the FIFO
Sales, that information is critical to the determination of whether a sale is properly
included 	or 	excluded 	in 	the 	U.S. 	sales 	database. 	Second 	Final 	Remand
Redetermination at 21. Thus, Commerce reasonably concludes that the inability to
reliably 	identify 	the 	country 	of 	origin 	for 	the 	FIFO 	Sales 	means 	that 	the
corresponding price data in the U.S. sales database is also unreliable because
Commerce cannot accurately pair price data with the correct country of origin.
Second Final Remand Redetermination at 21–22. 	Consequently, the U.S. sales
database information is missing. 	Id. 	Since the information is missing from the
record, Commerce filled the gap with facts otherwise available. 	Id. at 17–18.
Because Commerce determined that Bosun failed to cooperate to the best of its ability,
Commerce reasonably used adverse inferences when filling the gap. Id.
C. Intracompany Sales
In the Second Final Remand Redetermination Commerce calculated an AFA
per unit rate and applied it to all the FIFO Sales, some of which Bosun claims are
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intracompany sales. Second Final Remand Redetermination at 13–15. Bosun argues
that Commerce’s decision not to remove intracompany sales data from the FIFO Sales
renders its determination contrary to law and unsupported by substantial evidence.
See Bosun’s Second Remand Comments at 5–8. As a threshold matter, the Court of
Appeals did not instruct Commerce to revisit its FIFO analysis. 	See Diamond
Sawblades, 986 F.3d at 1367. 	Although Bosun argues that Commerce has acted
contrary 	to 	law 	by 	ignoring 	evidence 	of 	intracompany 	sales, 	it 	is 	reasonably
discernable that Commerce did not ignore the evidence, but rather found that it was
not within the scope of the Court of Appeals’ instructions 11 and further would not be
relevant as it was unverifiable. 	Second Final Remand Redetermination at 13–15.
Consequently, Bosun’s substantial evidence argument also fails because Commerce
has addressed that which detracts from its determination. 12 Universal Camera Corp.
11 Commerce explains that the Court of Appeals upheld its decision to use AFA for
the FIFO Sales and instructed Commerce to reconsider its application of AFA to the
sales where country-of-origin information was determined using product code or unit
price. Second Final Remand Redetermination at 13–14.
12 Bosun responded to Commerce’s second supplemental questionnaire stating it
could not identify all the sequence numbers requested because a portion of those sales
were sales between importer-affiliates. Second Supplemental Questionnaire Resp. at
1–2. 	Bosun 	argues 	that 	Commerce 	should 	issue 	an 	additional 	supplemental
questionnaire 	requesting 	that 	Bosun 	identify 	the 	number 	of 	pieces 	in 	the
intracompany sales transactions so they can be removed from Commerce’s margin
calculations. Comments on Draft Results of Second Redetermination Pursuant to
Court Remand at 9, Doc. No. 4126821 (June 1, 2021). 	Bosun’s argument that
Commerce could or should issue a supplemental questionnaire does nothing to
undermine the reasonableness of Commerce’s determination based on the record
evidence and in light of the Court of Appeals’ decision.
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v. NLRB, 340 U.S. 474, 488 (1951) (“The substantiality of evidence must take into
account whatever in the record fairly detracts from its weight.").
II. 	Surrogate Country Selection
Finally, the court reviews Commerce’s decision to use Thai average unit value
(“AUV”) in the Second Final Remand Redetermination for compliance with the court’s
remand order. 	Second Final Remand Redetermination at 8–11; Slip Op. 18-146 at
24–25. In the Final Remand Results, Commerce used Thai average unit value data
to value copper powder and copper iron clab. 13 Final Decision Memo. at 3. Finding
Commerce failed to directly address DSMC’s argument that the Thai AUV data was
an outlier and relied solely on a regulatory preference of valuing all inputs from the
same country, this court remanded for further explanation regarding Commerce’s
decision to use the Thai AUV data. Slip Op. 18-146 at 24–25; Second Final Remand
Redetermination at 9–11. 	Commerce’s decision to use AFA for all Bosun’s sales
mooted the surrogate country selection issue. First Remand Redetermination at 13;
see also Second Final Remand Redetermination at 9–10. In the Second Final Remand
Redetermination Commerce determined that it would no longer apply adverse
inferences 	to 	all 	Bosun’s 	sales; 	therefore, 	in 	the 	Second 	Final 	Remand
13 Copper powder and copper iron clab are factors of production for sawblades. 	See
Diamond Sawblades and Parts Thereof from [China]: Decision Memo. for Prelim.
Results of Antidumping Duty Admin. Rev.; 2014-2015 at 2, Doc. No. 3527262-01 (Dec.
5, 2016).
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Redetermination, Commerce needed to address DSMC’s aberrancy argument14 to
comply with the court’s remand order. Slip Op. 18-146 at 24–25.
Commerce explained that DSMC made mathematical errors when calculating
the Thai AUV data. Second Final Remand Redetermination at 10–11; see Pre-Prelim.
Letter at 3. Commerce noted that when correctly calculated, the Thai AUV data was
not 	aberrational. 	Second 	Final 	Remand 	Redetermination 	at 	10–11. 	Given
Commerce’s preference to value all surrogate values in a single country and evidence
that the Thai AUV data is not aberrational, Commerce’s decision to use the Thai AUV
for copper powder and copper iron clab is reasonable. Id. at 11. No party challenges
the use of Thai AUV data before the court. Commerce complied with the court’s order
to address DSMC’s aberrancy argument of the Thai AUV and its determination is
supported by substantial evidence on the record.
14 In both its pre-preliminary determination comments and its case brief, DSMC
argued that Commerce should use South African, not Thai, import data to value
copper powder and copper iron clab because the Thai data was aberrational. Letter
from Wiley Rein LLP to Sec’y Com., re: Diamond Sawblades and parts thereof from
[China]: DSMC’s Pre-Prelim. Deter. Comments Regarding Surrogate Values at 2–4,
Doc. No. 3522843 (Nov. 15, 2016) (“Pre-Prelim. Letter”); Case Br. Diamond Sawblades
from [China] at 13–16, PD 373, CD 344 (Jan. 17, 2017). In its comments to the draft
remand results DSMC reiterated that the Thai AUV data was an outlier and the
South African AUV data should be used in its place. See Letter from Wiley Rein, re:
Diamond Sawblades and Parts Thereof from [China]: Comments on Draft Results of
Redetermination at 6-10, Doc. No. 4126645-01 (June 1, 2021) (“DSMC’s Draft
Comments”).
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Court No. 17-00167 	Page 19
CONCLUSION
For 	the 	reasons 	stated, 	Commerce’s 	Final 	Remand 	Redetermination 	is
sustained. Judgment shall enter accordingly.
/s/ Claire R. Kelly
Claire R. Kelly, Judge
Dated: 	October 27, 2021
New York, New York
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