Case: 21-1988 Document: 60 Page: 1 Filed: 08/02/2022
United States Court of Appeals
for the Federal Circuit
______________________
VICENTIN S.A.I.C., OLEAGINOSA MORENO
HERMANOS S.A., MOLINOS AGRO S.A.,
Plaintiffs
LDC ARGENTINA S.A.,
Plaintiff-Appellant
v.
UNITED STATES, NATIONAL BIODIESEL BOARD
FAIR TRADE COALITION,
Defendants-Appellees
______________________
2021-1988
______________________
Appeal from the United States Court of International
Trade in Nos. 1:18-cv-00111-CRK, 1:18-cv-00119-CRK,
Judge Claire R. Kelly.
______________________
Decided: August 2, 2022
______________________
GREGORY J. SPAK, White & Case LLP, Washington, DC,
argued for plaintiff-appellant. Also represented by JESSICA
LYND.
JOSHUA E. KURLAND, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for defendant-appellee United States.
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2 VICENTIN S.A.I.C. v. US
Also represented by BRIAN M. BOYNTON, PATRICIA M.
MCCARTHY, LOREN MISHA PREHEIM.
MYLES SAMUEL GETLAN, Cassidy Levy Kent USA LLP,
Washington, DC, argued for defendant-appellee National
Biodiesel Board Fair Trade Coalition. Also represented by
THOMAS M. BELINE, CHASE DUNN, JACK ALAN LEVY, JAMES
EDWARD RANSDELL, IV.
______________________
Before MOORE, Chief Judge, TARANTO and HUGHES,
Circuit Judges.
HUGHES, Circuit Judge.
This is an appeal from an antidumping investigation of
biodiesel from Argentina. Appellant LDC Argentina S.A.
challenges two calculations Commerce used to determine
antidumping duties: export price and constructed value of
the subject biodiesel.
Certain renewable fuels, such as the biodiesel at issue
here, are entitled to tradeable tax credits. In calculating
export price, Commerce subtracted the value of these
tradeable credits, calling the credits “price adjustments”
under
19 C.F.R. § 351.401(c). Because the credits fall
within the regulatory definition of a “price adjustment” and
substantial evidence supports the value Commerce used
for the credits, we affirm Commerce’s export price calcula-
tion.
Calculating constructed normal value of biodiesel in
Argentina, Commerce used an international market price
for soybeans, the primary input into biodiesel, because the
price of soybeans in Argentina is subsidized. Commerce
also addressed the same soybean subsidy through counter-
vailing duties. LDC argues that correcting for the soybean
subsidy in the export price creates an improper double rem-
edy. But Commerce demonstrated with substantial
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VICENTIN S.A.I.C. v. US 3
evidence that its constructed value calculation does not re-
sult in a double remedy. We affirm the constructed value.
BACKGROUND
The National Biodiesel Board Fair Trade Coalition and
its members submitted an antidumping petition alleging
that biodiesel from Argentina was sold at less-than-fair
value into the United States. Commerce initiated an anti-
dumping investigation and selected Vicentin S.A.I.C. and
LDC Argentina S.A. as mandatory respondents. Decision
Memorandum for the Preliminary Determination in the
Less-Than-Fair-Value Investigation of Biodiesel from Ar-
gentina at 3, 82 ITADOC 50391 (Oct. 19, 2017) (Prelimi-
nary Results Memo).
In an antidumping investigation, Commerce deter-
mines whether the subject merchandise was sold at less
than fair value by subtracting the “export price,” the price
at which the subject merchandise was first sold to a pur-
chaser in the United States, from the “normal value,”
which is the price of identical or similar merchandise sold
outside the United States.
19 U.S.C. §§ 1677(35), 1677a(a),
1677b(a). The difference between the two is the dumping
margin, and Commerce imposes antidumping duties in an
amount equal to the dumping margin.
19 U.S.C. §§ 1673,
1677(35)(A). In this appeal, LDC challenges Commerce’s
determination of both the export price and the normal
value.
I
The U.S. Environmental Protection Agency (EPA) in-
centivizes the use of renewable fuels by requiring certain
entities, including United States gasoline and diesel fuel
producers and importers, to meet an annual “renewable
volume obligation.” Preliminary Results Memo at 28–29.
Entities show compliance with their renewable volume ob-
ligation by submitting to the EPA Renewable Identification
Numbers (RINs) equaling the number of gallons in their
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4 VICENTIN S.A.I.C. v. US
renewable volume obligations.
Id. RINs are tradeable cred-
its created by the importation and domestic production of
renewable fuels. RINs are “attached” to biodiesel at the
time of importation, and importers can later sell them as
“detached” or “separated” RINs.
When calculating export price,
19 C.F.R. § 351.401(c)
directs Commerce to “use a price that is net of price adjust-
ments, as defined in section 351.102(b), that are reasonably
attributable to the subject merchandise.” Commerce con-
sidered the value of RINs generated by the importation of
the subject biodiesel to be a “price adjustment” and so sub-
tracted the value of the RINs from the export price. Final
Results of Redetermination Pursuant to Ct. Remand at 1–
2, 14–15 (First Remand Results), Vicentin S.A.I.C. v.
United States,
404 F. Supp. 3d 1323 (Ct. Int’l Trade 2019)
(No. 18-00111) (Vicentin I), ECF No. 79-1. 1 Commerce ex-
plained that the value of RINs is a “price adjustment” as
defined in
19 C.F.R. § 351.102(b)(38) because “the invoice
price does not reflect the true ‘starting price’ of biodiesel or
‘price at which the subject merchandise is first sold’ because
it includes a RIN value.”
Id. at 10.
In support of its finding that the invoice price includes
the value of RINs, Commerce cited a statement by LDC’s
U.S. affiliate that “the price of [biodiesel] is comprised of
the cost of biodiesel . . . plus a RIN value” and that “buyers
are cognizant of the value of RINs associated with a sale
and likely factor [the value of RINs] in when negotiating a
price.”
Id. at 12. Commerce also relied on an ITC report
1 At first, Commerce added the value of RINs to nor-
mal value. Issues and Decision Memorandum for the Final
Affirmative Determination in the Antidumping Duty In-
vestigation of Biodiesel from Argentina at 12, 83 ITADOC
8837 (Feb. 20, 2018) (Final Results Memo). On remand, it
adjusted the export price instead. First Remand Results at
2.
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VICENTIN S.A.I.C. v. US 5
showing that biodiesel with RINs attached costs much
more than biodiesel without RINs.
Id. at 11–12. So the
RINs value “must be accounted for to arrive at the net price
actually paid by the customer for the merchandise under
investigation.”
Id. at 11.
For the value of RINs attached to the imported bio-
diesel, Commerce used the “daily spot prices” of separated
RINs as reported by LDC and other parties.
Id. at 38. Com-
merce relied on the statements of exporters in related ITC
proceedings that “if a given RIN has a value of $0.75, it
would add $0.75 to a gallon [of] biodiesel . . . [and] industry
participants assume that a gallon of RINless [biodiesel]
should be $0.75 per gallon less expensive than a gallon of
[biodiesel] with . . . RINs attached.”
Id. at 13–14.
The Court of International Trade sustained Com-
merce’s decision to subtract the value of RINs from export
price. Vicentin S.A.I.C. v. United States,
466 F. Supp. 3d
1227, 1233–37, 1239–42. (Ct. Int’l Trade 2020) (Vicentin
II).
II
Calculating the normal value of the subject biodiesel,
Commerce determined that “domestic biodiesel sales prices
are established by the [Argentinian] government and are
not based on competitive market conditions.” Issues and
Decision Memorandum for the Final Affirmative Determi-
nation in the Antidumping Duty Investigation of Biodiesel
from Argentina at 16, 83 ITADOC 8837 (Feb. 20, 2018) (Fi-
nal Results Memo). Without a viable sales price in Argen-
tina, Commerce based the normal value on a constructed
value calculation pursuant to 19 U.S.C. § 1677b(a)(4). Id.
Constructed value includes “the cost of materials . . . em-
ployed in producing the merchandise, during a period
which would ordinarily permit the production of the mer-
chandise in the ordinary course of trade.” 19 U.S.C. §
1677b(e)(1). But under the recent Trade Preferences Exten-
sion Act of 2015, “if a particular market situation exists
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6 VICENTIN S.A.I.C. v. US
such that the cost of materials and fabrication or other pro-
cessing of any kind does not accurately reflect the cost of
production in the ordinary course of trade,” then Commerce
“may use . . . any other calculation methodology” for the
cost of materials. Trade Preferences Extension Act of 2015
§ 504, 19 U.S.C. § 1677b(e).
Soybeans are the primary input into biodiesel. Na-
tional Biodiesel argued “that Argentina levies high export
taxes on feedstock, [including soybeans,] which has the ef-
fect of lowering the feedstock cost domestically.”
Appx11979 (internal quotation marks omitted). In a paral-
lel countervailing duty investigation, Commerce found that
the same export tax regime was a countervailable subsidy
for sales of soybean-based products. Issues and Decision
Memorandum for the Final Determination in the Counter-
vailing Duty Investigation of Biodiesel from the Republic
of Argentina at 13, 16–29, 82 ITADOC 53477 (Nov. 6,
2017).
In this antidumping investigation, National Biodiesel
alleged that the soybean subsidy creates a particular mar-
ket situation affecting respondents’ reported costs of soy-
beans. Commerce agreed. Using “any other methodology”
under 19 U.S.C. § 1677b(e), Commerce disregarded the re-
spondents’ actual reported soybean costs in favor of an in-
ternational market price.
Respondents appealed Commerce’s final antidumping
determination to the Court of International Trade, arguing
that Commerce could not reasonably adjust the cost of soy-
beans to account for the soybean subsidy because Com-
merce had offset the same program as a countervailable
subsidy in the parallel investigation. Vicentin I, 404 F.
Supp. 3d at 1334. The Court of International Trade twice
remanded for Commerce to explain why it made the partic-
ular market situation adjustment for the soybean subsidy
if the parallel countervailing duty investigation addressed
the same program. Id. at 1340–43; Vicentin II, 466 F. Supp.
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VICENTIN S.A.I.C. v. US 7
3d at 1242–45. Commerce maintained that it was not re-
quired to “measure or alleviate any double remedy” when
relying on 19 U.S.C. § 1677b(e). Final Results of Redeter-
mination Pursuant to Ct. Remand at 16, Vicentin II, 466 F.
Supp. 3d. 1227 (No. 18-00111), ECF No. 108-1 (Second Re-
mand Results).
Under protest, Commerce also determined that using
the international soybean price did not create a double
remedy. It borrowed the “pass-through” analysis from 19
U.S.C. § 1677f-1(f)(1), a provision meant to mitigate double
remedies arising from parallel antidumping and counter-
vailing duty proceedings in nonmarket economies. Second
Remand Results at 9.
Commerce found that the effect of the soybean subsidy
was not “passed through” to lower the biodiesel export price
because the “record demonstrates overwhelmingly that the
respondents price their U.S. sales by reference to U.S. mar-
ket prices, either for conventional ‘petro-diesel’ or soybean
oil.” Id. at 10. LDC admitted that it “signed contracts with
the customers, agreeing to provide B99 biodiesel that was
generally priced based on New York Mercantile Exchange
(NYMEX) heating oil futures prices plus some specified
premium” when selling to U.S. companies. Id. Officials at
Vicentin likewise “explained that the company may sell bi-
odiesel at a flat price or based on a Chicago Board of Trade
(CBOT) futures price, plus or minus a premium.” Id. at 11.
Documentary evidence of both respondents’ sales con-
firmed this narrative. Id.
Commerce also cited an ITC finding that “biodiesel
prices have been influenced by the price of petroleum-based
diesel fuel, adjusted for government incentives supporting
renewable fuels, rather than biomass based diesel produc-
tion costs.” Id. (quoting Biodiesel from Argentina and Indo-
nesia, Investigation Nos. 701-TA-571-572 and 731-TA-
1347-1348 (Preliminary) at VI-7, U.S. ITC Publication
4690 (May 2017)). Commerce explained that the same ITC
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8 VICENTIN S.A.I.C. v. US
report “demonstrates a lack of correspondence between the
subsidy at issue and Argentine prices.” Id. Argentinian bi-
odiesel dropped in price from 2014 to 2015 and partially
rebounded in 2016. Id. at 11–12. During the same period,
the export tax on Argentinian soybeans fell. Id. at 12. But
rather than increasing to reflect the changing subsidy, the
price for Argentinian biodiesel followed the same pattern
as the price of biodiesel from Canada and Indonesia, as well
as overall United States prices. Id.
Having found that the soybean subsidy was not linked
to the export price, Commerce concluded that its use of the
international soybean prices did not lead to any double
remedy, explaining that “as both sides of the [less-than-
fair-value] equation in this instance are unaffected by the
export tax on soybeans, the differential between U.S. prices
and normal value (i.e., the dumping margin) is not partially
the result of the subsidy, and thus the [particular market
situation] adjustment to fair value does not remedy the
subsidy.” Id.
The Court of International Trade affirmed Commerce’s
finding that the soybean subsidy is not passed through to
export prices and affirmed Commerce’s reasoning that the
pass-through analysis showed that Commerce did not pro-
vide a double remedy. Vicentin S.A.I.C. v. United States,
503 F. Supp. 3d 1255, 1261–68 (Ct. Int’l Trade 2021) (Vi-
centin III). It thus permitted Commerce to rely on interna-
tional soybean prices under the particular market
situation provision of 19 U.S.C. § 1677b(e).
LDC appeals Commerce’s treatment of RINs as a price
adjustment and its use of international soybean prices to
correct for the soybean subsidy. We have jurisdiction under
28 U.S.C. § 1295(a)(5).
ANALYSIS
“We review a decision of the Court of International
Trade evaluating an antidumping determination by
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VICENTIN S.A.I.C. v. US 9
Commerce by reapplying the statutory standard of review
. . . . We will uphold Commerce’s determination unless it is
unsupported by substantial evidence on the record or oth-
erwise not in accordance with the law.” Peer Bearing Co.-
Changshan v. United States,
766 F.3d 1396, 1399 (Fed. Cir.
2014) (citation omitted); 19 U.S.C. § 1516a(b)(1)(B)(i).
I
LDC challenges Commerce’s legal authority to subtract
the value of RINs from the export price as a “price adjust-
ment” under
19 C.F.R. § 351.401(c). LDC also argues that
substantial evidence does not support Commerce’s finding
that it could use the value of separated RINs on the spot
market as a proxy for the value of attached RINs.
A
Commerce’s calculation accords with the statute. Com-
merce found that the invoice price does not reflect the
“price at which the subject merchandise is first sold,” as re-
quired by 19 U.S.C. § 1677a(a) “because [the invoice price]
includes a RIN value.” First Remand Results at 10. Fur-
ther, as Commerce explained, subtracting the value of the
RINs to isolate the price paid for biodiesel alone effects the
overall statutory scheme for the less-than-fair-value com-
parison, which “seeks to produce a fair ‘apples-to-apples’
comparison between” the normal value and export price.
Id. at 4 (quoting Torrington Co. v. United States,
68 F.3d
1347, 1352 (Fed. Cir. 1995)).
LDC argues that Commerce’s treatment of the RINs
conflicts with the statute. LDC relies on our holding in AK
Steel Corp. v. United States defining “sold” under 19 U.S.C.
§ 1677a(a)–(b) “to require both a ‘transfer of ownership to
an unrelated party and consideration.’ ” AK Steel Corp. v.
United States,
226 F.3d 1361, 1371 (Fed. Cir. 2000) (quot-
ing NSK Ltd. v. United States,
115 F.3d 965, 975 (Fed. Cir.
1997)). LDC contends that these attributes of a sale “indi-
cate that the ‘first sold’ price is a price that was discussed
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10 VICENTIN S.A.I.C. v. US
and agreed upon between the parties to the sale.” Appel-
lant’s Br. 25. But transfer of ownership and consideration
show whether and between whom a sale has occurred. See
AK Steel,
226 F.3d at 1371 (relying on the definition for this
purpose). The definition in AK Steel does not bear on the
price for that sale.
Turning to the language of the regulation,
19 C.F.R.
§ 351.401(c) provides: “In calculating export price, . . . the
Secretary normally will use a price that is net of price ad-
justments, as defined in § 351.102(b), that are reasonably
attributable to the subject merchandise . . . .” Sec-
tion 351.102(b)(38) defines “price adjustment” as “a change
in the price charged for subject merchandise or the foreign
like product, such as a discount, rebate, or other adjust-
ment, including, under certain circumstances, a change
that is made after the time of sale . . . , that is reflected in
the purchaser’s net outlay.” The two phrases “such as” and
“or other adjustment” convey that the definition is not lim-
ited to discounts and rebates. See also Modification of Reg-
ulations Regarding Price Adjustments in Antidumping
Duty Proceedings,
81 Fed. Reg. 15,641, 15,644 (Mar. 24,
2016) (amending the definition “to clarify that a price ad-
justment is not just limited to discounts or rebates, but en-
compasses other adjustments as well”). Overall, the
regulations direct Commerce to use the purchaser’s “net
outlay,” or “net price actually paid” for the subject mer-
chandise, rather than any invoice price that does not ac-
count for discounts, rebates, and other adjustments. See
19
C.F.R. § 351.102(b)(38); Antidumping Duties; Countervail-
ing Duties;
62 Fed. Reg. 27,296, 27,344 (May 19, 1997)
(“[P]rice adjustments include such things as discounts and
rebates that do not constitute part of the net price actually
paid by a customer.”).
LDC contends that the regulation requires “(1) a start-
ing price actually paid by a customer and (2) an adjusted
price agreed between the buyer and seller.” Appellant’s
Br. 33. We see no requirement that an unadjusted starting
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VICENTIN S.A.I.C. v. US 11
price be a price “actually paid.” To the contrary, a discount
applied before payment is still a discount. We also see no
requirement that the buyer and seller expressly state or
negotiate an adjusted price. The example of a manufac-
turer’s rebate is illustrative. A manufacturer could sell its
product to an importer through a distributor and pay a re-
bate directly to the importer. There would be no need for
the distributor and importer to agree on what the price
would have been without the rebate. Because rebates are a
type of “price adjustment” contemplated by
19 C.F.R.
§ 351.02(b)(38), Commerce would subtract the value of the
manufacturer’s rebate and use for its export price the im-
porter’s “net outlay” after the rebate. RINs from the sale of
biodiesel into the United States are similar. The importer
receives a fungible credit affecting its “net outlay” for the
biodiesel, and the importer and exporter do not expressly
negotiate what the price would have been without the
credit. Given the similarities between RINs and rebates,
the non-limiting language of the regulation, and the fact
that Commerce’s calculation effects the overall statutory
scheme, the regulation unambiguously permits Commerce
to subtract the RINs values. 2
2 LDC contends that Commerce’s broad interpreta-
tion of
19 C.F.R. §§ 351.401(c) and 351.102(b)(38) departs
from its “longstanding interpretation of ‘price adjustment’”
that the adjustment be “one that actually existed in the
transaction as agreed upon between the parties and
changed the price from a starting price to an adjusted
price.” Appellant’s Br. 35. Commerce’s interpretation cre-
ates “unfair surprise,” LDC argues, and thus we should not
defer to it. Appellant’s Br. 34–35 (citing Kisor v. Wilkie,
139
S. Ct. 2400, 2418 (2019)). Because we hold that the regula-
tion unambiguously permits Commerce to subtract the
RINs values, we do not reach this argument regarding
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12 VICENTIN S.A.I.C. v. US
We agree with Commerce that
19 C.F.R. §§ 351.401(c)
and 351.102(b)(38) allow it to subtract the value of RINs
from export price as a “price adjustment.”
B
LDC next argues that the value Commerce used for the
RINs is not supported by substantial evidence because
Commerce used “the value of separated-RINs, which are
different from attached-RINs or the RINs-eligibility of bio-
diesel” and “none of the RIN values used in the price ad-
justment were actually connected to those individual
transactions that make up the record.” Appellant’s Br. 37.
In other words, “[t]here is no record evidence that the buyer
in LDC’s actual transactions investigated by Commerce as-
signed the same value to the RIN-generating value of
LDC’s biodiesel as a buyer that needed RINs would pay for
separated-RINs on the spot market.”
Id. at 38.
But Commerce did cite evidence that the value of sep-
arated RINs on the spot market is an accurate estimate of
the value of attached RINs. Commerce cited the statements
of exporters in related ITC proceedings that “if a given RIN
deference. In any event, Commerce previously indicated
that it believes the regulation to be broad and non-limiting.
E.g., Modification of Regulations Regarding Price Adjust-
ments in Antidumping Duty Proceedings, 81 Fed. Reg. at
15,644. LDC offers scant support for its contrary character-
ization of Commerce’s “longstanding interpretation.” It
provides examples and cases relating to Commerce’s “prac-
tice . . . to add circumstances of sale adjustment in the U.S.
market to constructed value or to deduct them from con-
structed export price,” as an alternative to using the price
adjustment regulations. Appellant’s Br. 29–31. But these
authorities do not show any prior conflicting interpretation
of the price adjustment regulation Commerce relied on
here.
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VICENTIN S.A.I.C. v. US 13
has a value of $0.75, it would add $0.75 to a gallon [of] bi-
odiesel . . . [and] industry participants assume that a gal-
lon of RINless [biodiesel] should be $0.75 per gallon less
expensive than a gallon of [biodiesel] with . . . RINs at-
tached.” First Remand Results at 13–14. This statement,
which LDC does not acknowledge in its briefing, provides
substantial evidence to support Commerce’s use of the sep-
arated RINs price.
II
Turning to Commerce’s constructed normal value cal-
culation, LDC challenges Commerce’s interpretation of the
particular market situation provision of 19 U.S.C.
§ 1677b(e). LDC argues that Commerce unreasonably in-
terpreted the provision to “permit[] it to adjust allegedly
distortive production costs when Commerce has already
imposed a countervailing duty.” Appellant’s Br. 40. LDC
argues that this interpretation is unreasonable because it
creates a double remedy. Commerce argues that its reli-
ance on 19 U.S.C. § 1677b(e) here is lawful because it found
that the soybean subsidy is not passed through to the ex-
port price and therefore Commerce correcting for the soy-
bean subsidy in the constructed value calculation did not
create any double remedy. LDC responds that this finding
is unsupported by substantial evidence.
A
The antidumping and countervailing duty laws remedy
different practices. The countervailing duty statute
broadly addresses market distortions caused by foreign
government subsidization, while the antidumping statute
focuses on whether a domestic industry is being injured by
foreign producers or exporters selling imported merchan-
dise at “less than its fair value.” Compare
19 U.S.C.
§ 1671(a), with
19 U.S.C. § 1673(1).
To avoid antidumping duties, exporters must sell their
merchandise at or above the “fair value,” which is the
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14 VICENTIN S.A.I.C. v. US
normal value as defined in 19 U.S.C. § 1677b. The normal
value is the price for merchandise identical or similar to
the subject merchandise and sold outside the United
States. 19 U.S.C. §§ 1677b(a)(1), 1677(16). Critically, the
normal value is the price “in the ordinary course of trade.”
19 U.S.C. §§ 1677b(a)(1)(B)(i), (a)(1)(C)(iii), (b)(1), (f)(2),
1677(15)(A)–(C) (requiring Commerce to disregard sales
outside the ordinary course of trade). And if Commerce can-
not determine the normal value using prices in the export-
ing country, Commerce may approximate the normal value
with a “constructed” normal value. 19 U.S.C. § 1677b(a)(4).
Commerce calculates the constructed value under 19
U.S.C. § 1677b(e) by summing the costs of production and
selling, general and administrative expenses, and profits.
A particular market situation that reduces a respond-
ent’s costs below the costs in the ordinary course of trade
tends to make Commerce’s calculation of the constructed
normal value an underestimate of the normal value in the
ordinary course of trade. This underestimate is an issue if
a respondent does not pass its reduced costs through as re-
duced prices of the exported merchandise. Under these cir-
cumstances, the particular market situation would
decrease the constructed normal value but not the export
price. If Commerce used the underestimated constructed
normal value, then the dumping margin would shrink, and
Commerce would not remedy dumping to the full extent
permitted by the antidumping laws.
The particular market situation provision of 19 U.S.C.
§ 1677b(e) authorizes Commerce to correct such a distor-
tion. If Commerce finds a particular market situation that
reduces a respondent’s cost of an input below the cost in
the ordinary course of trade, then Commerce may use a dif-
ferent measure of the cost. If the respondent does not pass
the reduced cost through to the price of its exported mer-
chandise, then Commerce may instead use the cost as it
would be in the ordinary course of trade, i.e., as it would be
without the particular market situation. The result is a
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VICENTIN S.A.I.C. v. US 15
constructed value that is an appropriate estimate of the
normal value and that can be fairly compared with the ex-
port price without the particular market situation impact-
ing either value. Making this correction allows Commerce
to remedy dumping to the full extent of the law.
That is exactly what Commerce did here. Commerce
found a particular market situation that reduced LDC’s
soybean costs. 3 Finding that LDC had not passed the re-
duced soybean price through to the price of biodiesel ex-
ported to the United States, Commerce chose to adjust the
constructed value upward to match the value in the ordi-
nary course of trade, using the clear statutory authority of
19 U.S.C. § 1677b(e). As a result of its particular market
situation adjustment, Commerce arrived at a constructed
value that approximates normal value based on sales of bi-
odiesel in the ordinary course of trade. And use of this con-
structed value resulted in an adequate remedy for
dumping, which is not duplicative of the countervailing
duty remedy.
Framed another way, Commerce has relied on an in-
ternational market price for soybeans in place of the Ar-
gentinian cost. Because of this adjustment, the soybean
subsidy did not affect the constructed normal value of bio-
diesel. Commerce found that the respondents did not pass
the soybean subsidy through to biodiesel exported to the
United States, and therefore the subsidy did not affect the
export price of biodiesel either. These two facts support
Commerce’s inference that “no portion of the [less-than-
fair-value] differential can be attributed to the subsidy,”
3 LDC does not challenge the notion that an export
tax that reduces the price of an input may be a “particular
market situation” in general, only that Commerce should
not correct for such a regime under 19 U.S.C. § 1677b(e) if
Commerce has imposed countervailing duties to address
the regime.
Case: 21-1988 Document: 60 Page: 16 Filed: 08/02/2022
16 VICENTIN S.A.I.C. v. US
Second Remand Results at 9, and therefore, the antidump-
ing duty did not provide a remedy duplicative of the coun-
tervailing duty.
B
Commerce found that the respondents did not pass the
soybean subsidy through to the export price because ex-
porters do not set the biodiesel price based on the cost of
soybeans. LDC argues that Commerce departed from its
usual practice in nonmarket economy investigations of col-
lecting direct evidence of a subsidies-to-cost link and cost-
to-price link through a questionnaire it sends to producers
and exporters, and that as a result its finding is unsup-
ported by substantial evidence. Even assuming LDC ex-
hausted administrative remedies for this challenge,
Commerce’s method of gathering information does not
alone undermine the substantiality of the evidence sup-
porting its conclusion. Although a questionnaire might be
the easiest way for Commerce to gather the evidence re-
quired, other methods and sources of evidence are not pro-
hibited. See Wheatland Tube Co. v. United States,
26
F. Supp. 3d 1372, 1385 (Ct. Int’l Trade 2014). Commerce
cited evidence that biodiesel export prices are set based on
international prices for heating oil with a fixed premium,
rather than based on volatile feedstock costs, and that the
price of Argentinian biodiesel tracked prices from other
countries rather than responding to changes in the Argen-
tinian subsidy. This amounts to substantial evidence that
“there is no significant link between the subsidy and U.S.
prices.” Second Remand Results at 12.
We affirm Commerce’s finding that there is no risk of
double counting in this case. We therefore need not address
LDC’s argument that the statute does not allow Commerce
to make an adjustment that results in a double remedy or
that creates a risk of a double remedy.
* * *
Case: 21-1988 Document: 60 Page: 17 Filed: 08/02/2022
VICENTIN S.A.I.C. v. US 17
For these reasons, the judgment of the Court of Inter-
national Trade is
AFFIRMED
