Solianus, Inc. v. United States ( 2019 )

Slip Op. 19-
UNITED STATES COURT OF INTERNATIONAL TRADE
SOLIANUS, INC. AND CONSOLIDATED
FIBERS, INC.,
Plaintiffs,
v.
UNITED STATES, Before: Richard W. Goldberg, Senior Judge
Court No. 18-00179
Defendant,
and
DAK AMERICAS LLC, NAN YA PLASTICS
CORPORATION, AMERICA AND AURIGA
POLYMERS INC.,
Defendant-Intervenors.
OPINION AND ORDER
[The court sustains the determinations of the U.S. Department of Commerce.]
Dated: June 21, 2019
Gregory S. Menegaz, J. Kevin Horgan, Alexandra H. Salzman, deKeiffer & Horgan,
PLLC, of Washington, D.C., for plaintiffs.
Kelly Krystyniak, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, D.C., for defendant. With her on the brief were Joseph H.
Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, and Claudia Burke, Assistant
Director. Of counsel on the brief was Kristen McCannon, Office of the Chief Counsel for Trade
Enforcement and Compliance, U.S. Department of Commerce, of Washington, D.C.
Paul C. Rosenthal, David C. Smith, Kathleen M. Cusack, Kelley Drye & Warren LLP, of
Washington, D.C., for defendant-intervenors.
Goldberg, Senior Judge: Plaintiffs Solianus, Inc. (“Solianus”) and Consolidated Fibers,
Inc. (“Consolidated”) (collectively “Plaintiffs”) challenge the final results issued by the U.S.
Court No. 18-00179 Page 2
Department of Commerce (“Commerce” or “the Department”) in its administrative review of the
antidumping duty on fine denier polyester staple fiber from the Republic of Korea (“Korea”).
See Fine Denier Polyester Staple Fiber from the Republic of Korea: Final Affirmative
Determination of Sales at Less Than Fair Value, 83 Fed. Reg. 24,743 (Dep’t Commerce May 30,
2018) (final determ.) (“Final Determination”) and accompanying Issues & Decisions Mem.
(Dep’t Commerce May 23, 2018) (“I&D Mem.”). Plaintiffs challenge the Department’s
“all-others” antidumping duty rate assigned to all non-investigated Korean producers and
exporters in the Final Determination.
On review of Plaintiffs’ motion for judgment on the agency record, Pls.’ Mot. for J. on
Agency R., ECF No. 24 (Jan. 17, 2019) (“Pls.’ Br.), the court sustains Commerce’s methodology
in calculating the all-others antidumping duty rate of 30.15 percent.
BACKGROUND
Commerce initiated an antidumping duty investigation of fine denier polyester staple
fiber from Korea in June 2017. See Fine Denier Polyester Staple Fiber from the People’s
Republic of China, India, the Republic of Korea, Taiwan, and the Socialist Republic of Vietnam:
Initiation of Less-Than-Fair-Value Investigations, 82 Fed. Reg. 29,023 (Dep’t Commerce June
27, 2017) (initiation). The period of investigation ran from April 1, 2016 through
March 31, 2017. Id. On July 31, 2017, Commerce selected Down Nara Co. (“Down Nara”) and
Huvis Corporation (“Huvis”) as mandatory respondents for this investigation and issued both
companies antidumping questionnaires. See Selection of Resp’ts Mem., Joint Appendix, ECF
No. 30 (“J.A.”) (May 2, 2019) Tab 9 (July 31, 2017). Toray Chemical Korea Inc. (“TCK”)
requested to be examined as a voluntary respondent. TCK Request for Voluntary Resp’t
Selection, J.A. Tab 12 (Aug. 7, 2017). Immediately thereafter, Huvis informed Commerce that it
Court No. 18-00179 Page 3
did not intend to participate in the investigation. Huvis’s Notice of Intent Not to Participate, J.A.
Tab 13 (Aug. 10, 2017). The Department then selected TCK as a third mandatory respondent.
See Selection of an Add’l Mandatory Resp’t Mem., J.A. Tab 15 (Aug. 18, 2017). The
Department did not elect to replace any other mandatory respondent for individual investigation.
Commerce issued questionnaires to both Down Nara and TCK. I&D Mem. at 13, 21. Down
Nara never responded to the Department’s questionnaire.
In its Preliminary Determination, Commerce found that Down Nara and Huvis failed to
cooperate to the best of their ability under 19 U.S.C. § 1677e(b) and assigned them each a rate of
45.23 percent, based on total adverse facts available (AFA). See Fine Denier Polyester Staple
Fiber from the People’s Republic of Korea: Preliminary Affirmative Determination of Sales at
Less Than Fair Value, Postponement of Final Determination, and Extension of Provisional
Measures, 83 Fed. Reg. 660 (Dep’t Commerce Jan. 5, 2018) (prelim. determ.) (“Preliminary
Determination”) and accompanying Prelim. Decision Mem., J.A. Tab 5 (Dec. 18, 2017)
(“PDM”). TCK received a de minimis rate and Commerce preliminary calculated an all-others
rate of 30.15 percent, reflecting an average of the rates assigned to all three mandatory
respondents. See PDM at 11 (“[W]e preliminarily determine that it is reasonable to calculate the
all-others rate based on a simple average of the zero percent dumping margin and the two
dumping margins based totally on AFA.”). Commerce did not make any major changes to these
rates in its Final Determination and continued to assign the average rate of 30.15 percent from all
three mandatory respondents to all-others rate companies, including Plaintiffs. Plaintiffs
(Solianus and Consolidated Fibers) are Korean exporters of fine denier polyester staple fiber not
individually investigated.
Court No. 18-00179 Page 4
Today, Plaintiffs raise a challenge before this court concerning the Department’s
all-others rate assignment. See generally Pls.’ Br. Specifically, Plaintiffs claim that because two
of the mandatory respondents (Down Nara and Huvis) did not participate in the investigation,
they were not “individually investigated” within the meaning of 19 U.S.C. § 1673d(c)(1)(B)(i),
and therefore, should not be included in Commerce’s calculation. As a result, Plaintiffs maintain
that Commerce’s all-others rate was improperly calculated. Id. at 8. Instead, Plaintiffs argue,
Commerce should have calculated the all-others rate using only TCK’s de minimis margin. Id. at
8–9. The Government defends the Department’s position as consistent with the Federal Circuit’s
interpretation of an “individually investigated” respondent. See generally Def.’s Resp. to Pls.’
Mot., ECF No. 28 (Mar. 22, 2019) (“Def.’s Br.”). 1
Ultimately, the Department’s methodology in calculating the all-others rate was legally
sound and did not produce an unfair result. The court upholds the resulting 30.15 percent
all-others antidumping rate assigned to Plaintiffs.
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction over this action pursuant to 28 U.S.C. § 1581(c) and will
sustain Commerce’s determinations 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).
1
Additionally, Defendant-Intervenors raise an exhaustion challenge to Plaintiffs’ claims, arguing
that because Plaintiffs did not request to become voluntary respondents, they cannot “seek [their]
own duty rate” by way of challenging the all-others rate. See Def.-Intervenors’ Resp. to Pls.’
Mot., ECF No. 27 (Mar. 22, 2019). The court shall require exhaustion of administrative
remedies where appropriate. 28 U.S.C. § 2637(d). However, Plaintiffs here are not seeking an
individual duty rate separate from the all-others rate. As Plaintiffs correctly identify, Plaintiffs
are challenging the all-others rate methodology and application to all non-investigated firms,
including itself. Therefore, the exhaustion doctrine is not at issue in this case.
Court No. 18-00179 Page 5
DISCUSSION
Pursuant to 19 U.S.C. § 1673d(a)(1), Commerce is required to make a final determination
of whether certain merchandise is sold in the United States at less than its fair value. In so doing,
the antidumping duty law generally requires that Commerce establish an antidumping duty
margin for each exporter for which review is requested. Specifically, the Department must (i)
determine the estimated weighted average dumping margin for each exporter and producer
individually investigated; and (ii) determine the estimated all-others rate for all exporters and
producers not individually investigated. § 1673d(c)(1)(B)(i).
Because it would be practically impossible to examine all producers and exporters of all
relevant merchandise, the statute contains a built-in all-others rate calculation—which allows
Commerce to assign an antidumping rate to non-investigated firms. Section 1673d(c)(5) governs
the method for determining the all-others rate. Generally, the estimated all-others rate is equal to
the weighted average of the estimated weighted average dumping margins for exporters and
producers that were individually investigated, excluding any zero or de minimis margins, or
margins based entirely upon facts available. § 1673d(c)(5)(A). However—foreshadowing the
issue at hand—the statute also recognizes an exception to the general rule for calculating
all-others rates: if all margins are zero, de minimis, or based entirely on facts available, the
statute permits Commerce to use “any reasonable method to establish the estimated all-others
rate for exporters and producers not individually investigated.” Id. According to the Statement
of Administrative Action accompanying the Uruguay Round Agreements Act, the “expected
method in such cases will be to weight-average the zero and de minimis margins and margins
determined pursuant to facts available.” See Statement of Administrative Action, H.R. Doc. No.
Court No. 18-00179 Page 6
103–316 (1994), at 873 reprinted in 1994 U.S.C.C.A.N. 4040, 4201 (“SAA”) 2. But, “if this
method is not feasible . . . Commerce may use other reasonable methods.” Id.
Here, Commerce had assigned two of the mandatory respondents (Down Nara and Huvis)
total AFA because they refused to participate in the investigation, and the remaining mandatory
respondent, TCK, received a de minimis rate—thereby triggering the “exception” under section
1673d(c)(5). Commerce then calculated the all-others rate by averaging the rates assigned to
these three respondents, including the AFA rates assigned to Down Nara and Huvis. I&D Mem.
at 14–18. Plaintiffs challenge the Department’s methodology because “it does not rely upon the
margin calculated for the only individually investigated exporter for purposes of determining the
all-others rate for Solianus.” Pls.’ Br. at 8. Implicit in (and integral to) Plaintiffs’ argument,
however, is the claim that because Down Nara and Huvis failed to participate in the
investigation, the only “individually investigated” exporter was TCK—which received a de
minimis rate. Essentially, Plaintiffs assert, a company cannot be “individually investigated”
unless it places some information on the record for Commerce to actually examine. Moreover,
according to Plaintiffs, Commerce abandoned the “expected method” of calculating the separate
rate (that is, weight-averaging the margins) without first establishing that the method was not
“feasible” or would result in a margin that is not “reasonably reflective of potential dumping
margins.” Pls.’ Br. at 8–9. Ultimately, Plaintiffs request that Commerce, on remand,
re-calculate the all-others rate using only TCK’s de minimis margin. See Pls.’ Br. at 18.
What is the meaning of “individually investigated,” in the context of section 1673d? The
statute permits Commerce to “use any reasonable method to establish the estimated all-others
2
Congress has deemed the SAA “as an authoritative expression of the United States concerning
the interpretation and application of the Uruguay Round Agreements.” 19 U.S.C. § 3512(d).
Court No. 18-00179 Page 7
rate for exporters and producers not individually investigated, including averaging the estimated
weighted average dumping margins determined for the exporters and producers individually
investigated.” 19 U.S.C. § 1673d(c)(5)(B). Plaintiffs are pointedly refraining from arguing that
the term “individually investigated” is ambiguous. Pls.’ Reply Br. at 4. That is the correct
approach, based on controlling precedent that, “as a matter of the plain meaning of words, there
is no ambiguity in the word ‘individually’ or in the word ‘investigated.’” MacLean-Fogg v.
United States, 753 F.3d 1237, 1243 (Fed. Cir. 2014). Indeed, the phrase “individually
investigated” “must be understood to be a term of art,” id. at 1244. The issue before the court
today boils down to whether firms that were assigned a rate based entirely on AFA (due to a total
refusal to cooperate with the investigation) are still considered “individually investigated,” so as
to be included in the all-others calculation. Plaintiffs assert that entirely non-cooperating firms
cannot be “individually investigated” unless they place at least some information on the record
for Commerce to examine. Pls.’ Br. at 8–9. Based on the plain language of the statute and
Federal Circuit precedent, the court disagrees.
The antidumping statute creates two categories of importers or producers: those that are
“individually investigated” and those that are not. The statute explicitly states that the estimated
all-others rate is the rate applied to “exporters and producers not individually investigated,”
19 U.S.C. § 1673d(c)(5)(B). Based on statutory context, then, producers that are “not
individually investigated” represent the “all-other” firms that, “[a]s a practical matter,” were “not
selected for examination,” SAA at 4200. See also Changzhou Hawd Flooring Co., Ltd. v. United
States, 848 F.3d 1006, 1011 (Fed. Cir. 2017) (“In investigations involving exporters from market
economies, 19 U.S.C. § 1673d(c)(5) establishes the method for determining the rate for entities
that are not individually investigated, the so-called all-others rate.” (emphasis added)). On the
Court No. 18-00179 Page 8
other hand, firms that are “individually investigated” fall into the category of producers or
exporters wherein Commerce initiated an investigation and made a determination “based upon
the information available to it at the time of the determination, or whether there is a reasonable
basis to believe or suspect that the merchandise is being sold . . . at less than fair value.” 19
U.S.C. § 1673b(b)(1)(A). In other words, “there is no possible doubt that a [] respondent who
receives his individual rate has undergone ‘individual investigation.’” MacLean-Fogg Co., 753
F.3d at 1243. This rule is further confirmed by the operating regulation, which defines what it
means to be individually examined:
(c) Exporters and producers examined—
(1) In general. In an investigation, the Secretary will attempt to determine an
individual weighted-average dumping margin or individual countervailable subsidy
rate for each known exporter or producer of the subject merchandise. However, the
Secretary may decline to examine a particular exporter or producer if that exporter or
producer and the petitioner agree.
19 C.F.R. § 351.204(c)(1) (emphasis added). Neither the statute nor the regulation makes a
distinction between mandatory respondents who put forward information for Commerce to
evaluate, and mandatory respondents that refuse to do so. In either circumstance, so long as a
mandatory respondent received an “individual rate”—zero, de minimis, based on facts available,
or otherwise—that respondent has undergone individual investigation sufficient for section
1673d. See MacLean-Fogg Co., 753 F.3d at 1244–45 (“The legislative history confirms that
those who are ‘individually investigated’ receive an ‘individual countervailable subsidy rate’ and
those who are ‘not individually investigated’ receive an ‘all-others’ rate.”).
Plaintiffs’ suggestion that it is the submission of evidence or documents that is necessary
to fulfill the statutory definition of “individually investigated” is not supported by either the
statute’s text or precedential case law. Indeed, if rates determined entirely under AFA fell
Court No. 18-00179 Page 9
outside of the scope of individually investigated respondents (but zero or de minimis margins did
not), Congress could have easily included that distinction in either the plain language of the
statute or in the legislative history. See Rosewell v. LaSalle Nat. Bank, 450 U.S. 503, 524 (1981)
(“If Congress had meant to carve out such an expansive exception, one would expect to find
some mention of it.”); Allied Tube & Conduit Corp. v. United States, 13 CIT 698, 704, 721 F.
Supp. 305, 311 (1989), aff’d, 898 F.2d 780 (Fed. Cir. 1990) (“It is clear to this Court that if
Congress had intended to exclude verification documents from the scope of the statute it could
easily have so provided in the plain language of the statute. This Court declines to look beyond
the plain meaning of the statutory language . . . .”).
The court’s understanding of section 1673d is further confirmed by the structure of the
statute, which initially lists the available dumping margins of individually investigated exporters
and producers as zero, de minimis, or determined entirely under section 1677e 3—and then later
refers to those same dumping margins as derived from “individually investigated” exporters or
producers. 4 19 U.S.C. § 1673d(c)(5)(B); see also Robinson v. United States, 335 F.3d 1365,
1369 (Fed. Cir. 2003) (statutory reference to a previously defined term is “powerful evidence
that [the term] was meant to have the same meaning in the [statute].”). This leaves the court with
the understanding that even those producers or exporters who receive a “zero or de minimis
margin,” or receive rates “determined entirely under section 1677e,” § 1673d(c)(5)(B), are still
“exporters and producers individually investigated,” id.
3
See 19 U.S.C. § 1673d(c)(5)(B) (“If the estimated weighted average dumping margins
established for all exporters and producers individually investigated are zero, or de minimis
margins, or are determined entirely under section 1677e of this title.”(emphasis added))
4
See id. (“[I]ncluding averaging the estimated weighted average dumping margins determined
for the exporters and producers individually investigated.” (emphasis added)).
Court No. 18-00179 Page 10
Additionally, the Federal Circuit has already affirmed the Department’s method of
calculating an “all-others”-type antidumping rate calculation in Yangzhou Bestpak Gifts & Crafts
Company v. United States, 716 F.3d 1370, 1374 (Fed. Cir. 2013) (“Bestpak”). There, the Federal
Circuit addressed the Department’s calculation of a “separate rate” for eligible non-mandatory
respondents for a proceeding in a non-market economy (China)—the calculation of which
follows the same statutory method outlined in section 1673(d). In Bestpak, Commerce selected
two exporters as mandatory respondents for investigation, one of which completely failed to
cooperate and was assigned the AFA China-wide rate while the other cooperated and was
assigned a de minimis margin. Because all dumping margins in the investigation were either de
minimis or AFA rates, Commerce applied the exception found in section 1673d(c)(5)(B) in order
to calculate a separate rate for twelve additional exporters that submitted applications. In so
doing, Commerce took a simple average of both the de minimis rate and the AFA China-wide
rate, yielding a 123.83 percent margin. Thereafter, one of the twelve additional exporters and
separate rate respondent, Bestpak, challenged the separate rate determination, arguing that the
simple average methodology was contrary to law. Id. at 1375. But in affirming Commerce’s
methodology to calculate the separate rate, the Federal Circuit depended on the “statute’s lenient
standard of ‘any reasonable method’” to conclude that a simple average of a de minimis rate and
an AFA rate was “explicitly allow[ed]” by the statute and the SAA. Id. at 1378. Therefore, the
simple average of an AFA rate and a de minimis rate was affirmed and the Court found “no legal
error” in Commerce’s methodology. Id. The same principle can be applied here: Commerce
calculated the all-others rate using a simple average of the three individually investigated
Court No. 18-00179 Page 11
mandatory respondents. 5 This methodology was permitted by the Federal Circuit in Bestpak and
is affirmed by the court today.
Despite sanctioning the Department’s underlying methodology, the Federal Circuit in
Bestpak also found that while the methodology was permitted by the statute, “the circumstances
of [that] case render[ed] a simple average of a de minimis and AFA China-wide rate
unreasonable as applied.” Id. (emphasis added). Specifically, the resulting average assigned to
Bestpak and the other eleven separate rate respondents (123.83 percent margin) did not
reasonably “reflect[] economic reality” and the Department failed to substantiate and calculate
the basis for such a dumping margin. Id. at 1378.
Plaintiffs focus on one specific portion of Bestpak to support their claim that a mandatory
respondent who receives a rate based entirely on AFA is not “individually investigated” for the
purposes of section 1673d(c)(5)(B); the Federal Circuit, in dictum, stated that “[the] record
simply does not supply enough data for Commerce to calculate its separate rate determination
based on only one individually investigated respondent.” Id. (emphasis added). Plaintiffs hang
their hat on the Court’s idle reference to the mandatory respondent that received a de minimis
rate as the “only . . . individually investigated respondent” as their premise for finding the
Department’s methodology in this administrative review contrary to law. However, to find that
5
Plaintiffs argue that Commerce abandoned the “expected method” of calculating the all-others
rate, as prescribed by the SAA. The “expected method” requires Commerce “to weight-average
the zero and de minimis margins and margins determined pursuant to the facts available,
provided that volume data is available.” SAA at 4201. The SAA continues that “if this method
is not feasible, or if it results in an average that would not be reasonably reflective of potential
dumping margins for non-investigated exporters or producers, Commerce may use other
reasonable means.” Id. Here, Commerce did not conduct a weighted-average of the margins
available (de minimis, and margins determined pursuant to the facts available), because, as the
SAA anticipated, volume data was not available for the mandatory respondents that failed to
cooperate. Def.’s Br. at 7. Therefore, the Department resorted instead to a simple average of the
margin data—an approach “explicitly allowed” by the statute. Bestpak, 716 F.3d at 1378.
Court No. 18-00179 Page 12
the Bestpak Court implied that an individually investigated respondent is one that necessarily
puts forth evidence on the record (as the de minimis mandatory respondent did in Bestpak) would
render the first portion of the Bestpak decision—that affirmed the Department’s underlying
methodology of averaging both rates—meaningless at best, and contradictory at worst.
Moreover, the Court used varying terminology throughout the decision to differentiate between
the “responding” mandatory respondent and the non-cooperative respondent—all the while
refusing to omit the non-cooperative mandatory respondent from the separate rate calculation.
See id. at 1379 (“Assigning a non-mandatory, separate rate respondent a margin equal to over
120 percent of the only fully investigated respondent . . . .” (emphasis added)); id. at 1374 (“In
sum, Commerce’s investigation was left with one participant after Jiantian’s withdrawal.”
(emphasis added)).
Coupled with the Federal Circuit’s explicit approval of the Department’s methodology in
calculating the separate rate under section 1673d(c)(5)(B), the court is ultimately left with the
understanding that, regardless of the level of cooperation, if a firm is chosen as a mandatory
respondent to an investigation, it is “individually investigated.” Indeed, that is the “plain
meaning” we can safely afford the statutory text. See generally Timex V.I., Inc. v. United States,
157 F.3d 879, 882 (Fed. Cir. 1998).
Not only does Commerce’s chosen methodology find support in the text of section
1673d(c)(5)(B) and the court’s precedents, but Plaintiffs have failed to advance either a legal or
factual reason why the Department’s methodology is flawed as applied to this administrative
review. Citing specifically to Bestpak, Plaintiffs misinterpret the relevant case law as supporting
the proposition that a respondent is only individually investigated if it cooperates in the
investigation. See Pls.’ Br. at 11–12. But that is not the “approach” that the court “rejected,”
Court No. 18-00179 Page 13
Pls.’ Br. at 12. Instead, the Federal Circuit found that the circumstances of the case before them
rendered the resulting rate unreasonably high and not reflective of the economic realities for
firms independent of Chinese intervention. See Bestpak, 716 F.3d at 1379 (“When there is only
one benchmark, Commerce’s comparison of the potential dumping margins with the estimated
AUVs based on scant information available here is not reasonable.”). Therefore, as to Bestpak’s
calculated margin, the record did “not contain any information—save the AUV estimate—that
indicat[ed] what Bestpak’s individually calculated margin might be,” and “[t]here [was] no basis
in the record to tie this 123.38 percent rate to Bestpak’s commercial activity.” Id. at 1380.
Plaintiffs attempt to raise a similar challenge here, stating that “the circumstances of this
investigation render a simple average of a de minimis rate and two AFA rates unreasonable as
applied” and that “the record reveals no evidence showing that such a determination reflects
economic reality.” Pls.’ Br. at 14. But as it stands, Plaintiffs have failed to allege any specific
error in the Department’s application of the methodology to the facts of this case. That is,
Plaintiffs have offered no reason why the resulting 30.15 percent all-others rate failed to
“reflect[] economic reality” of the “all-other” firms. Id. The court need not (and will not) take
Plaintiffs at their word that “[o]n its face, this rate does not bear a connection to the actual
production experience and sales costs of an actual cooperating Korean producer or exporter.”
Pls.’ Reply Br. at 9. Indeed, the Department has justified the application of the sanctioned
methodology to calculating the all-others rate. First, the Department selected Down Nara and
Huvis as mandatory respondents in the investigation based on the assumption that, as the largest
volume exporters, they were “representative of the rest of the market.” I&D Mem. at 18.
Additionally, the 45.23 percent AFA rate was corroborated by “compar[ing] the 45.23 percent
margin to the transaction-specific dumping margins that [the Department] calculated for TCK.”
Court No. 18-00179 Page 14
I&D Mem. at 14. And, in its analysis, Commerce “found that the dumping margin of 45.23
percent [was] not significantly higher than the highest transaction-specific margin calculated for
TCK, and therefore [was] relevant and [had] probative value.” Id. Plaintiffs do not dispute these
findings. Nor do Plaintiffs dispute the claim that “no information on the record [] supports
Solianus’ claim that it is like TCK but unlike Down Nara and Huvis.” Id. at 18. Without more
evidence to support the claim that the resulting rate is not fairly representative of “all other”
exporters, the court sustains the Department’s application of the simple average methodology to
calculate the all-others rate.
Plaintiffs’ reliance on Changzhou Hawd fares no better in this regard. Pls.’ Br. at 10
(citing Changzhou Hawd Flooring Co. v. United States, 848 F.3d 1006, 1009 (Fed. Cir. 2017)).
Plaintiffs argue that the Federal Circuit “confirm[ed] the principle that to include AFA in
calculating the ‘all-others’ rate when the only individually investigated respondent received a de
minimis rate . . . is unreasonable.” Id. But again, that is a misreading of the Federal Circuit’s
ruling and the specific facts underlying that case. In Changzhou Hawd, Commerce selected three
of the largest exporters as mandatory respondents and found all three to have zero or de minimis
dumping margins. However, in calculating the separate rate, Commerce averaged those three
zero/de minimis figures (derived from the mandatory respondents) together with the 25.62
percent AFA rate it had previously adopted as the China-wide rate—yielding a “separate rate” of
6.41 percent for the non-individually investigated companies. 6 The Federal Circuit rejected that
6
As in Bestpak, Changzhou Hawd dealt with Commerce’s antidumping duty investigation on
imports from the People’s Republic of China—a non-market economy. In non-market economy
investigations, certain Chinese entities may demonstrate their independence from the Chinese
government. The firms that successfully demonstrate their independence receive a “separate”
antidumping duty rate distinct from the “China-wide” rate that applies to entities that did not
demonstrate their independence from the Chinese government. These circumstances are not
present in the case before us today.
Court No. 18-00179 Page 15
approach as departing from the “expected method” without first determining “that the
separate-rate firms’ dumping is different from that of the mandatory respondents.” 848 F.3d at
1012. But the AFA rate that was averaged together with the three individually investigated
respondent rates was the distinct China-wide entity rate assigned to all entities “that had not
shown their independence from the Chinese government.” Id. at 1008. The China-wide AFA
rate was not derived from a mandatory respondent (or, an individually investigated company)—
as it was here. 7 That fact is integral to the Court’s decision, then, because to factor in a rate not
derived from a mandatory respondent would defeat the presumption that “mandatory respondents
. . . are assumed to be representative” of all exporters, especially those “separate” entities that
demonstrated their independence from the Chinese government. Id. at 1012. Moreover, in
explaining the statutory context surrounding the calculation of a separate rate, the Federal Circuit
also indicated that “the language of ‘margins determined pursuant to the facts available’” “refers
to margins so determined for firms that are individually investigated”—implicitly
acknowledging a situation wherein calculating an all-others (or separate) rate may include AFA
rates from individually investigated firms. Id. at 1011 n.4 (emphasis added).
The statute and our precedents permit the methodology that Commerce has undertaken in
this administrative review. Commerce acted in accordance with law in imposing an all-others
rate derived from a simple average of the dumping margins from the three mandatory
respondents. Additionally, Plaintiffs have failed to allege that this sanctioned methodology was
improperly applied in this administrative proceeding. The record below does not support
Plaintiffs’ argument that the 30.15 percent all-others rate is unreasonably high or
7
The China-wide rate is a stand-in rate for companies that are owned and controlled by the
Government of China. See Changzhou Hawd, 848 F.3d at 1009, 1012–13.
Court No. 18-00179 Page 16
unrepresentative of “all other” exporters. Accordingly, the court sustains Commerce’s
determinations here.
CONCLUSION
For the foregoing reasons, upon consideration of Plaintiff’s motion for judgment on the
agency record and all papers and proceedings herein, it is hereby:
ORDERED that Commerce’s methodology of calculating the all-others rate by simple
average of the three individually investigated exporters is sustained; it is further
ORDERED that Commerce properly applied its methodology to calculate the all-others
rate in this administrative review, pursuant to 19 U.S.C. § 1673d; and it is further
ORDERED that Plaintiffs’ Rule 56.2 Motion for Judgment on the Agency Record is
DENIED; and it is further
ORDERED that the court sustains Commerce’s determination in full and enters
judgment in the Department’s favor.
Dated: June 21, 2019 /s/ Richard W. Goldberg
New York, New York Richard W. Goldberg
Senior Judge