Mid Continent Steel & Wire, Inc. v. United States ( 2018 )

Slip Op. 18–
UNITED STATES COURT OF INTERNATIONAL TRADE
__________________________________________
:
MID CONTINENT STEEL & WIRE, INC., :
:
Plaintiff, :
:
v. : Before: Richard K. Eaton, Judge
:
UNITED STATES, : Court No. 17-00051
:
Defendant, :
:
and :
:
THE STANLEY WORKS (LANGFANG) :
FASTENING SYSTEMS CO., LTD., et al., :
:
Defendant-Intervenors. :
__________________________________________:
OPINION
[United States Department of Commerce’s final results are sustained.]
Dated: +VOF



Adam H. Gordon, The Bristol Group PLLC, of Washington, DC, argued for plaintiff.
With him on the brief was Ping Gong.
Sosun Bae, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, argued for defendant. With her on the brief were
Chad A. Readler, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia
M. McCarthy, Assistant Director. Of Counsel on the brief was Jessica DiPietro, Attorney, Office
of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce, of
Washington, DC.
Lawrence J. Bogard, Neville Peterson LLP, of Washington, DC, argued for defendant-
intervenors. With him on the brief was Peter J. Bogard.
Eaton, Judge: This case involves the final results of the seventh administrative review of
the antidumping duty order on steel nails from the People’s Republic of China, covering the
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period of review August 1, 2014, through July 31, 2015 (“POR”). Certain Steel Nails From the
People’s Rep. of China, 82 Fed. Reg. 14,344 (Dep’t Commerce Mar. 20, 2017) (final results), as
amended by 82 Fed. Reg. 19,217 (Dep’t Commerce Apr. 26, 2017), and accompanying Issues
and Decision Memorandum, P.R. 289 at bar code 3551476-01 (“Final I&D Memo”)
(collectively, the “Final Results”).
In the Final Results, the United States Department of Commerce (“Commerce” or the
“Department”) found that dumping of the subject nails occurred during the POR and calculated
an antidumping duty rate of 5.78 percent for The Stanley Works (Langfang) Fastening Systems
Co., Ltd. and Stanley Black & Decker, Inc. (collectively, “Stanley”), a mandatory respondent in
the review. See 82 Fed. Reg. at 19,218. Commerce also determined an “all-others” rate, pursuant
to 19 U.S.C. § 1673d(c)(5)(A) (2012), equal to the 5.78 percent rate calculated for Stanley.
Commerce applied the all-others rate to the seventeen companies that qualified for a separate
rate, but were not individually examined (the “Separate Rate Companies”). See 82 Fed. Reg. at
19,218. The Department assigned the only other mandatory respondent in the review, Tianjin
Lianda Group Co., Ltd. (“Lianda”), the countrywide rate (the “PRC-wide rate”) of 118.04
percent because it failed to establish independence from the Chinese government. See Final I&D
Memo at 29; see also 82 Fed. Reg. at 19,219.
Mid Continent Steel & Wire, Inc. (“plaintiff” or “Mid Continent”), a U.S. fastener
producer, was the petitioner in the underlying review, and commenced this action to challenge
certain aspects of the Final Results. Mid Continent contends that: (1) Commerce’s assignment of
the 5.78 percent all-others rate to the Separate Rate Companies is neither in accordance with law
nor supported by substantial evidence primarily because it does not reflect the companies’
“economic reality”; (2) Commerce’s valuation of Stanley’s sealing tape input is not based on the
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best available information because the surrogate import data Commerce used to value the tape,
although more specific as to the base material, does not account for its adhesiveness; and
(3) Commerce’s valuation of Stanley’s plastic granules input is not based on the best available
information primarily because the granules are finished products, i.e., ready for their ultimate
use, not unfinished products “in primary form,” as Commerce found. See Pl.’s Br. Supp. Mot. J.
Agency R., ECF No. 29-1 (“Pl.’s Br.”); see also Pl.’s Reply Br., ECF 34. Mid Continent asks the
court to remand this matter to Commerce with instructions to recalculate the all-others rate and
to amend its valuation of Stanley’s sealing tape and plastic granules.
The United States (the “Government”), on behalf of Commerce, maintains that the Final
Results are supported by substantial evidence and otherwise in accordance with law. See Def.’s
Resp. Mot. J. Agency R., ECF No. 33 (“Def.’s Resp.”). For its part, Stanley urges the court to
find that the record supports Commerce’s valuation of its sealing tape and plastic granules. See
Stanley’s Mem. Opp’n Mid Continent Mot. J. Admin. R., ECF No. 32 (“Stanley’s Br.”).
The court has jurisdiction under 28 U.S.C. § 1581(c) (2012), and, for the reasons below,
sustains the Final Results.
BACKGROUND
On October 6, 2015, Commerce initiated the seventh administrative review of the subject
order. See Initiation of Antidumping and Countervailing Duty Admin. Rev., 80 Fed. Reg. 60,356
(Dep’t Commerce Oct. 6, 2015). Commerce asserts that, because of the large number of
exporters involved in the review (48), it limited the number of individually examined exporters
to two companies. See Selection of Respondents for Individual Rev. (Dec. 16, 2015), P.R. 76 at
3, 5, bar code 3426396-01, ECF No. 30 at tab 8. Commerce selected Stanley and Lianda as
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mandatory respondents based on their volume of exports, pursuant to 19 U.S.C. § 1677f–
1(c)(2)(B). Stanley was the largest exporter, and Lianda was the fourth largest exporter, of steel
nails from China during the POR. See Third Selection of Respondent for Individual Rev. (Feb.
29, 2016), P.R. 129 at bar code 3446401-01, ECF No. 30 at tab 12.
It is worth noting that, although two companies, Tianjin Zhonglian Metals Ware Co., Ltd.
(“Zhonglian”), and Suzhou Xingya Nail Co., Ltd. (“Suzhou”), exported higher volumes of
subject merchandise than Lianda during the POR, neither exporter participated as a mandatory
respondent, or otherwise, because (1) Mid Continent withdrew its request for review of
Zhonglian, and (2) Suzhou withdrew from the review early in the proceeding, refusing to
cooperate with the Department. See Third Selection of Respondent for Individual Rev. at 2-3.
During the review, Commerce issued its nonmarket economy questionnaires to Stanley
and Lianda. Based on Stanley’s responses, Commerce determined that the company successfully
rebutted the presumption of de jure and de facto control 1 by the Chinese government and was
therefore eligible for a separate, company-specific rate. See Decision Mem. for the Prelim.
Results (Sept. 6, 2016), P.R. 256 at 11, ECF No. 30 at tab 6 (“Prelim. Dec. Memo”). To calculate
this rate, the Department determined the normal value of Stanley’s exports using the nonmarket
economy method provided for in 19 U.S.C. § 1677b(c). Specifically, Commerce valued
1
Commerce presumes that exporters and producers from nonmarket economy
countries, such as China, are under foreign government control with respect to export activities
and thus should receive a single countrywide dumping rate. See Yangzhou Bestpak Gifts &
Crafts Co. v. United States, 716 F.3d 1370, 1373 (Fed. Cir. 2013) (citing Sigma Corp. v. United
States, 117 F.3d 1401, 1405 (Fed. Cir. 1997)). This presumption is rebuttable, however, if a
company can demonstrate its independence from government control, both in law (de jure) and
in fact (de facto). Sigma, 117 F.3d at 1405. If the company successfully rebuts the presumption
of government control, it may be eligible for a separate antidumping duty rate. If not, it will be
considered part of the countrywide entity and will receive the countrywide rate. See 19 C.F.R.
§ 351.107(d) (2015).
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Stanley’s reported factors of production using import data from Thailand, the selected surrogate
market economy country. Commerce determined surrogate values for Stanley’s factors of
production, including sealing tape and plastic granules, using publicly available Thai import
prices, as reported in the Global Trade Atlas. 2
In the preliminary determination, the Department calculated a rate for Stanley of 5.90
percent. See Certain Steel Nails From the People’s Rep. of China, 81 Fed. Reg. 62,710, 62,711
(Dep’t Commerce Sept. 12, 2016) (prelim. results). Commerce also preliminarily assigned to the
Separate Rate Companies the rate of 5.90 percent. See 81 Fed. Reg. at 62,711.
Commerce, however, found Lianda’s questionnaire responses lacking in that the
company failed to rebut the presumption of state control. Specifically, Lianda’s responses to
Commerce’s Section A questionnaire and supplemental questionnaires failed to provide
requested information regarding Lianda’s and its parent company’s corporate structure. See Final
I&D Memo at 28-29. Therefore, Commerce found Lianda had not provided sufficient
information to establish that it was eligible for a separate rate. Accordingly, Commerce treated
Lianda as a part of the countrywide entity and preliminarily assigned Lianda the PRC-wide rate
of 118.04 percent. 3 See Prelim. Dec. Memo at 11.
2
The Global Trade Atlas is a secondary electronic source containing data reported
by governments, including Thailand. See Prelim. Surrogate Values Mem. (Sept. 6, 2016), P.R.
257 at 2, bar code 3504509-01, ECF No. 30 at tab 15. Neither Commerce’s selection of Thailand
as the surrogate country, nor the use of GTA data to value factors of production is in dispute.
3
The PRC-wide rate was based on a rate found in the petition that started the initial
investigation in 2007. See Certain Steel Nails From the People’s Rep. of China, 73 Fed. Reg.
3928, 3935 (Dep’t Commerce Jan. 23, 2008) (prelim. determ.); see also Certain Steel Nails
From the People’s Rep. of China, 73 Fed. Reg. 44,961 (Dep’t Commerce Aug. 1, 2008) (notice
of antidumping duty order).
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In the Final Results, Commerce assigned Stanley the amended calculated rate of 5.78
percent, and continued to apply the PRC-wide rate of 118.04 percent to Lianda. For the
companies that qualified for a separate rate, Commerce determined an all-others rate by applying
the method set out in the general rule in § 1673d(c)(5)(A). 4 Thus, in accordance with the statute,
Commerce excluded Lianda’s rate from the calculation because it was based on facts available
with an adverse inference (“AFA”) and assigned Stanley’s 5.78 percent rate—the only margin
assigned to an individually examined respondent that was not zero, de minimis, or based entirely
on facts available or AFA—to the Separate Rate Companies. This appeal followed.
STANDARD OF REVIEW
The court will sustain a determination by Commerce 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).
LEGAL FRAMEWORK
When merchandise is sold in the United States at less than fair value, Commerce is
authorized by statute to impose antidumping duties in an amount equal to a “dumping margin.”
4
The general rule states:
For purposes of this subsection . . . , the estimated all-others rate shall be an
amount equal to the weighted average of the estimated weighted average dumping
margins established for exporters and producers individually investigated,
excluding any zero and de minimis margins, and any margins determined entirely
under section 1677e of this title [i.e., based on facts available or AFA].
19 U.S.C. § 1673d(c)(5)(A).
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See 19 U.S.C. §§ 1673, 1677(35)(A). This margin reflects the amount by which the price of the
merchandise in the exporting country (“normal value”) exceeds the price of the merchandise in
the United States (“export price” or “U.S. price”). See 19 U.S.C. §§ 1673e(a)(1), 1677b(a)(1),
1677a(a).
When the merchandise is exported from a nonmarket economy country, Commerce
determines its normal value by valuing the factors of production, using data from a surrogate
market economy country or countries. 19 U.S.C. § 1677b(c)(1). Commerce must use “the best
available information regarding the values of such factors” in the market economy country that
Commerce considers to be appropriate. Id. When choosing the “best available” surrogate data on
the record, Commerce selects, to the extent practicable, surrogate data that is “publicly available,
. . . product-specific, reflect[s] a broad market average, and [is] contemporaneous with the period
of review.” Qingdao Sea-Line Trading Co. v. United States, 766 F.3d 1378, 1386 (Fed. Cir.
2014) (citations omitted).
Generally, Commerce is charged with determining individual dumping margins for each
known exporter and producer. 19 U.S.C. § 1677f–1(c)(1). When it is “not practicable” to
determine individual margins because of the large number of exporters involved in the review,
however, the statute provides that Commerce may limit its examination to a “reasonable number
of exporters or producers” (mandatory respondents) that either constitute a statistically
representative sample of all known exporters or producers or account for the largest volume of
the subject merchandise from the exporting country. 5 Id. § 1677f–1(c)(2); see also Statement of
5
“Non-selected parties can request individual examination pursuant to 19 U.S.C.
§ 1677m(a), but Commerce is not obligated to grant such requests.” Albemarle Corp. &
Subsidiaries v. United States, 821 F.3d 1345, 1348 (Fed. Cir. 2016); see also Statement of
(footnote continued . . .)
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Administrative Action accompanying the Uruguay Round Agreements Act, H.R. Doc. No. 103–
316 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4200-01 (“SAA”). 6 In this way, Commerce
may “reasonably approximate the margins of all known exporters,” absent evidence that the
examined exporters’ data is not representative. Albemarle Corp. & Subsidiaries v. United States,
821 F.3d 1345, 1353 (Fed. Cir. 2016) (“The statute assumes that, absent [contrary] evidence,
reviewing only a limited number of exporters will enable Commerce to reasonably approximate
the margins of all known exporters.”). Commerce has been criticized in the past for selecting too
few exporters or producers to examine. See, e.g., Zhejiang Native Produce & Animal By-Prods.
Imp. & Exp. Corp. v. United States, 33 CIT 1125, 1129, 637 F. Supp. 2d 1260, 1263-64 (2009);
Carpenter Tech. Corp. v. United States, 33 CIT 1721, 1726-29, 662 F. Supp. 2d 1337, 1341-44
(2009). As shall be seen, it is possible that such criticism is warranted here.
In a nonmarket economy proceeding, Commerce presumes that respondents are state-
controlled. State control results in respondents being assigned the countrywide dumping rate. 19
C.F.R. § 351.107(d). The presumption of state control is rebuttable, however, and an exporter
that demonstrates sufficient independence (de jure and de facto) from state control may apply to
Commerce for a separate rate—that is, a rate for exporters that were not individually examined,
but not covered by the countrywide rate. Sigma Corp. v. United States, 117 F.3d 1401, 1405
Administrative Action accompanying the Uruguay Round Agreements Act, H.R. Doc. No. 103–
316 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4201 (“Commerce may decline to analyze
voluntary responses because it would be unduly burdensome.”).
6
In 1994, Congress enacted the Uruguay Round Agreements Act (“URAA”), Pub.
L. No. 103–465, 108 Stat. 4809 (1994), incorporating into U.S. law the Uruguay Round
Agreements adopted by the World Trade Organization. At the same time, Congress approved the
Statement of Administrative Action, 19 U.S.C. § 3511(a)(2), which is “an authoritative
expression” when interpreting and applying the URAA. See 19 U.S.C. § 3512(d).
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(Fed. Cir. 1997); see also Changzhou Hawd Flooring Co. v. United States, 848 F.3d 1006, 1009
(Fed. Cir. 2017). This separate rate is also known as the “all-others” rate. Albemarle, 821 F.3d at
1348. The all-others rate is assigned to cooperative, non-individually examined exporters. 19
U.S.C. § 1673d(c)(1)(B)(i)(II).
Subsection 1673d(c)(5) of title 19 governs Commerce’s calculation of the all-others rate.
Paragraph (A) provides:
(A) General rule
For purposes of this subsection . . . , the estimated all-others rate shall be an
amount equal to the weighted average of the estimated weighted average dumping
margins established for exporters and producers individually investigated,
excluding any zero and de minimis margins, and any margins determined entirely
under section 1677e of this title [i.e., based on facts available or AFA].
19 U.S.C. § 1673d(c)(5)(A). 7 In the event that all of the individually investigated exporters’
margins are zero, de minimis, 8 or determined entirely on the basis of facts available or AFA
(under 19 U.S.C. § 1677e), the exception to the general rule in paragraph (B) applies:
(B) Exception
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, [Commerce] may use any
reasonable method to establish the estimated all-others rate for exporters and
producers not individually investigated, including averaging the estimated
7
See SAA at 4201 (“[T]he all others rate will be equal to the weighted-average of
individual dumping margins calculated for those exporters and producers that are individually
investigated, exclusive of any zero and de minimis margins, and any margins determined entirely
on the basis of the facts available. Currently, in determining the all others rate, Commerce
includes margins determined on the basis of the facts available.”).
8
In administrative reviews, Commerce “will treat as de minimis any weighted-
average dumping margin or countervailable subsidy rate that is less than 0.5 percent ad valorem,
or the equivalent specific rate.” 19 C.F.R. § 351.106(c).
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weighted average dumping margins determined for the exporters and producers
individually investigated.
19 U.S.C. § 1673d(c)(5)(B). 9 In other words, when calculating the all-others rate, Commerce
will use the weighted average of all mandatory respondents’ rates, excluding any de minimis
rates, or rates based entirely on facts available or AFA. If all dumping margins are only either de
minimis, or determined entirely based on facts available or AFA, Commerce applies the
exception found in § 1673d(c)(5)(B). “In such cases, Commerce ‘may use any reasonable
method to establish the estimated all others rate for exporters and producers not individually
investigated, including averaging the estimated weighted average dumping margins determined
for the exporters and producers individually investigated.’” Yangzhou Bestpak Gifts & Crafts Co.
v. United States, 716 F.3d 1370, 1373 (Fed. Cir. 2013) (quoting 19 U.S.C. § 1673d(c)(5)(B)).
By its terms, § 1673d(c)(5) references investigations. Commerce, however, has an
established, court-approved practice of applying this subsection in periodic reviews as well, both
in market economy and nonmarket economy proceedings. See Albemarle, 821 F.3d at 1352
(“[T]he statutory framework contemplates that Commerce will employ the same methods for
9
The SAA provides the following guidance on the method Commerce may use
when the exception to the general rule applies:
[Title 19 U.S.C. § 1673d(c)(5)(B)] . . . provides an exception to the general rule if
the dumping margins for all of the exporters and producers that are individually
investigated are determined entirely on the basis of the facts available or are zero
or de minimis. In such situations, Commerce may use any reasonable method to
calculate the all others rate. The expected method in such cases will be to weight-
average the zero and de minimis margins and margins determined pursuant to the
facts available, provided that volume data is available. However, 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 methods.
SAA at 4201 (emphasis added).
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calculating a separate rate in periodic administrative reviews as it does in initial investigations.”);
see also Navneet Publications (India) Ltd. v. United States, 38 CIT __, __, 999 F. Supp. 2d 1354,
1359 (2014) (“Though § 1673d(c)(5) explicitly references investigations, nothing in that statute
or in any other statute expressly or impliedly precludes application to administrative reviews.”).
DISCUSSION
I. All-Others Rate Calculation
In the Final Results, Commerce calculated the all-others rate pursuant to the general rule
set out in 19 U.S.C. § 1673d(c)(5)(A), and assigned the Separate Rate Companies a margin of
5.78 percent—a rate equal to the calculated rate of Stanley, the sole mandatory respondent with a
rate that was not zero, de minimis, or based entirely on facts available or AFA. See Final I&D
Memo at 21 (“When calculating a separate rate for non-individually reviewed respondents, the
Department will base this rate on the estimated weighted-average dumping margins established
for the individually examined respondents, excluding zero and de minimis margins or margins
based entirely on AFA.”). Mid Continent maintains that Commerce’s calculation of the all-others
rate is neither in accordance with law nor supported by the record.
As to Commerce’s choice of method, Mid Continent takes the position that Commerce’s
decision to apply the general rule, and to exclude Lianda’s AFA rate, was an unreasonable
interpretation of the dumping statute because, in doing so, Commerce failed in its obligation to
ensure that the all-others rate reflected the “economic reality” of the Separate Rate Companies.
See Pl.’s Br. 12; see also SAA at 4201 (emphasis added) (“[Title 19 U.S.C.
§ 1673d(c)(5)(B)] . . . provides an exception to the general rule if the dumping margins for all of
the exporters and producers that are individually investigated are determined entirely on the basis
Court No. 17-00051 Page 12
of the facts available or are zero or de minimis. In such situations, Commerce may use any
reasonable method to calculate the all others rate. The expected method in such cases will be to
weight-average the zero and de minimis margins and margins determined pursuant to the facts
available, provided that volume data is available. However, 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 methods.”).
First, Mid Continent observes that while Congress amended § 1673d(c)(5)(A) to require
the exclusion of AFA rates from the all-others rate calculation in investigations, it did not state
“the appropriate [method] to be used in administrative reviews.” Pl.’s Br. 17. For Mid Continent,
this “intentional omission” shows that Congress wished Commerce to continue its pre-URAA
practice of including AFA rates in the calculation of the all-others rate in administrative reviews.
See Pl.’s Br. 15-17; see SAA at 4201 (noting that before the enactment of the URAA, “in
determining the all others rate, Commerce includes margins determined on the basis of the facts
available”). Thus, Mid Continent insists that in the underlying review Commerce should have
exercised its authority under the dumping laws to devise a method that included the AFA rates of
Lianda (the mandatory respondent that failed to establish independence from government
control) and Suzhou (the mandatory respondent that withdrew from the review) in the calculation
of the all-others rate. In particular, Mid Continent asks the court to remand with instructions that
Commerce calculate the all-others rate as a simple average of the rates received by Stanley (5.78
percent), Lianda (118.04 percent), and Suzhou (118.04 percent). See Pl.’s Br. 27. Therefore, Mid
Continent argues for a rate of 80.62 percent for the Separate Rate Companies.
Notwithstanding Mid Continent’s arguments, Commerce’s decision to apply the general
rule in § 1673d(c)(5)(A) is in accordance with law. There can be no serious dispute the weight of
Court No. 17-00051 Page 13
authority holds that “the statutory framework contemplates that Commerce will employ the same
methods for calculating a separate rate in periodic administrative reviews as it does in initial
investigations,” Albemarle, 821 F.3d at 1352 (citing 19 U.S.C. § 1675(a) (Supp. IV 2016)), and
that these methods are to be employed, not only in market economy cases, but in nonmarket
economy proceedings as well. Diamond Sawblades Mfrs. Coal. v. United States, 866 F.3d 1304,
1312 (Fed. Cir. 2017) (citing Albemarle, 821 F.3d at 1352 & n.6); see also Pl.’s Br. 14-15
(recognizing same). Moreover, as between the methods used to calculate the all-others rate, as
stated in the general rule, and in the exception to that rule, the method set out in
§ 1673d(c)(5)(A) leaves little room for the exercise of discretion. See 19 U.S.C.
§ 1673d(c)(5)(A) (“[T]he estimated all-others rate shall be an amount equal to the weighted
average of the estimated weighted average dumping margins established for exporters and
producers individually [examined], excluding any zero and de minimis margins, and any margins
determined entirely under section 1677e of this title.”) (emphasis added).
Applying the statutory method, Commerce excluded the PRC-wide rate assigned to
Lianda and relied on the only other calculated rate, in this segment, that was not zero, de
minimis, or based entirely on facts available or AFA—i.e., Stanley’s 5.78 percent rate. While it
may be that Commerce should have examined more potential respondents, 10 its method comports
with the statute (the general rule in § 1673d(c)(5)(A)) and the guidance set out in the SAA. See
SAA at 4201 (“[T]he all others rate will be equal to the weighted-average of the individual
dumping margins calculated for those exporters and producers that are individually [examined],
exclusive of any zero and de minimis margins, and any margins determined entirely on the basis
10
Indeed, had it done so, this lawsuit might have been avoided.
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of the facts available.”). Resort to the exception in paragraph (B), which permits Commerce to
use “any reasonable method,” was not statutorily directed because the conditions for its
application—i.e., that all calculated margins were zero, de minimis, or determined entirely based
on facts available or AFA—were not satisfied. 11 See SAA at 4201 (“[N]ew section
735(c)(5)(B) . . . provides an exception to the general rule if the dumping margins for all of the
exporters and producers that are individually [examined] are determined entirely on the basis of
the facts available or are zero or de minimis.”) (emphasis added). Moreover, where the
exception does apply, the SAA states that Commerce may use “any reasonable method” only if
the “expected method” is not feasible:
The expected method in such cases will be to weight-average the zero and de
minimis margins and margins determined pursuant to the facts available, provided
that volume data is available. However, 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 methods.
11
Mid Continent points out that the SAA permits the use of AFA rates in cases
where the exception (i.e., § 1673d(c)(5)(B)) to the general rule applies. See Pl.’s Br. 16-18. That
is, Commerce may use “any reasonable method” where the mandatory respondents’ margins are
zero, de minimis, or based entirely on facts available or AFA, and weight-averaging those
margins “results in an average that would not be reasonably reflective of potential dumping
margins . . . .” SAA at 4201. Mid Continent cites two cases, Bestpak and Navneet, as examples
of where Commerce applied § 1673d(c)(5)(B), although the facts did not fit neatly within the
statute. Acknowledging that these cases are distinguishable on their facts from the one presented
here, Mid Continent nonetheless argues that they stand for the proposition that “‘rate
determinations for nonmandatory, cooperating separate rate respondents must . . . bear some
relationship to their actual dumping margin.’” Pl.’s Br. 22 (quoting Bestpak, 716 F.3d at 1380).
Bestpak and Navneet are, as Mid Continent acknowledges, distinguishable. In both of these
cases, Commerce did not apply the general rule, but rather employed the exception in
§ 1673d(c)(5)(B), because all individual dumping margins for the mandatory respondents were
zero, de minimis, or based on AFA. By contrast here, Commerce could, indeed must, use the
preferred, general rule to calculate an all-others rate based on Stanley’s non-de minimis, non-
AFA rate.
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SAA at 4201 (emphasis added). Mid Continent, however, makes no argument that there is a lack
of volume data available in the record or that the usual method was unfeasible. Accordingly,
Commerce’s decision to apply the general rule in the underlying review was in accordance with
law.
Next, Mid Continent argues that even if the application of § 1673d(c)(5)(A) was lawful, it
was unreasonable “as applied” because it resulted in a margin that does not accurately reflect the
dumping rate of the Separate Rate Companies. See Pl.’s Br. 17-18; Pl.’s Reply Br. 8. Even if this
were a reason to ignore the statute, the court does not agree that Stanley’s 5.78 percent margin
necessarily does not accurately reflect the Separate Rate Companies’ dumping rate. The record
shows that Stanley was the largest exporter of subject merchandise, by volume, during the POR
and, for that reason, was selected for individual examination by Commerce pursuant to 19 U.S.C.
§ 1677f–1(c)(2). This “suggests an assumption that [Stanley’s data] can be viewed as
representative of all exporters.” Albemarle, 821 F.3d at 1353. That is, “[t]he statute assumes that,
absent . . . evidence [that the largest volume exporter’s data is not representative], reviewing only
a limited number of exporters will enable Commerce to reasonably approximate the margins of
all known exporters.” Id.
Mid Continent argues that record evidence demonstrates that Stanley’s rate is not
representative of the Separate Rate Companies’ experience. In particular, it points to (1) the
PRC-wide rate assigned to Lianda and Suzhou, and (2) the rates assigned to “non-Stanley”
mandatory respondents in previous segments. See Pl.’s Br. 10-11 (table). For Mid Continent,
these rates constitute substantial evidence that the all-others rate was untethered from the
Separate Rate Companies’ “economic reality and . . . experience.” Pl.’s Br. 26 (arguing that
because “all other individually-examined Chinese respondents . . . received much higher margins
Court No. 17-00051 Page 16
in previous reviews,” this shows that the 5.78 percent all-others rate “fail[s] to reflect economic
reality and the specific experience of the Separate Rate Companies.”). Mid Continent’s
representativeness argument, however, is not convincing.
As an initial matter, it was reasonable for Commerce to exclude Lianda’s and Suzhou’s
rates from the all-others rate calculation in accordance with the plain language of
§ 1673d(c)(5)(A). While Mid Continent argues that Stanley’s rate does not tie to the Separate
Rate Companies, it is not clear that Mid Continent’s proposed remedy would result in a more
representative margin. The Separate Rate Companies are known, cooperative exporters that each
established their eligibility for a separate rate. By contrast, Lianda failed to establish
independence from government control, and Suzhou failed to cooperate with Commerce’s
requests for information. Thus, no actual rate was calculated for either company. Rather, they
were assigned the PRC-wide rate—a rate that was derived from information found in the petition
that commenced the 2007 investigation. It is difficult to credit the argument that inclusion of
their 118.04 percent rates would result in an all-others rate that was “reflective” of the Separate
Rate Companies’ actual dumping margins where the commercial standing of these two
companies is virtually unknown.
Second, the rates assigned to non-Stanley respondents in prior segments do not
demonstrate that the general rule was unreasonable as applied. It is a commonplace that each
“‘administrative review is a separate exercise of Commerce’s authority that allows for different
conclusions based on different facts in the record.’” Albemarle, 821 F.3d at 1357 (quoting
Qingdao, 766 F.3d at 1387). Indeed, part of the idea behind periodic reviews is to test if
respondents that previously dumped have mended their ways. While the Federal Circuit has
identified circumstances where it may, nonetheless, be reasonable to use information from prior
Court No. 17-00051 Page 17
segments, those circumstances are not present here. For example, Mid Continent makes no
argument that “the overall market and the dumping margins have not changed from period to
period.” Id. On the contrary, the fluctuation in margins over the last several segments suggests
otherwise. Thus, “[t]his is not a situation in which there was any consistency with respect to the
dumping margins of the individually examined respondents throughout the reviews.” Id.
Additionally, there has been no allegation that the Separate Rate Companies have failed to
cooperate with Commerce such that the use of higher rates from a prior segment may be justified
as AFA on deterrence grounds. See id.; see also Changzhou Wujin Fine Chem. Factory Co. v.
United States, 701 F.3d 1367, 1378 (Fed. Cir. 2012) (“Deterrence is not relevant here, where the
‘AFA rate’ only impacts cooperating respondents.”).
Finally, even if circumstances were such that it was reasonable to look to information
from prior segments, it is difficult to see how the prior rates of non-Stanley mandatory
respondents from the last six reviews and a new shipper review are probative of the Separate
Rate Companies’ dumping during the POR, when only two of those respondents are among the
seventeen Separate Rate Companies chosen for the underlying review: Tianjin Jinghai County
Hongli Industry and Business Co., Ltd. (“Hongli”) and Tianjin Jinchi Metal Products Co., Ltd.
(“Jinchi”). See 81 Fed. Reg. at 19,218. While it is true that Hongli and Jinchi have been
individually examined before, these examinations took place in the second and third annual
reviews, which covered the 2009 to 2010, and 2010 to 2011 periods, respectively—that is,
several years prior to the POR of the underlying review. Thus, there is little to suggest that
Hongli’s and Jinchi’s prior rates would be indicative of the “economic reality and actual
dumping margins,” Pl.’s Br. 18, of the Separate Rate Companies during the POR, as Mid
Continent suggests.
Court No. 17-00051 Page 18
Accordingly, the 5.78 percent all-others rate is in accordance with law and supported by
substantial evidence.
II. Sealing Tape Valuation
In its Section D response regarding its factors of production, Stanley stated:
During the POR, Stanley . . . purchased sealing tape and consumed this material
to seal the cartons in the packaging of subject nails. The sealing tape is basic
packaging tape made from biaxially oriented polypropylene and adhesive. It is
purchased in rolls 60cm wide and 50 meters long.
Stanley’s Sec. D Resp., P.R. 111 at 103, bar code 3442643-02, ECF No. 30 at tab 14.
Before Commerce, Mid Continent argued that the Department should value Stanley’s
sealing tape under Thai Harmonized Tariff Schedule (“HTS”) subheading 3919.10, covering
“Plates, Sheets, Film, Foil, Tape, And Other Flat Shapes Of Plastics, Self-Adhesive, In Roll Not
Over 20 Cm. (8 in.) Wide.” Final I&D Memo at 31-32 (emphasis added). For its part, Stanley
argued against using that subheading “because Thai HTS subheading 3919.10 is a general basket
category that does not differentiate products based on the kind of plastic from which the tape is
made.” Final I&D Memo at 32. Instead, Stanley argued in favor of Thai HTS subheading
3920.20.10, covering “Other plates, sheets, film, foil, and strip of plastics, non-cellular and not
reinforced, laminated, supported, or similarly combined with other materials: of polymers of
polypropylene: biaxially oriented polypropylene film.” Final I&D Memo at 32 (emphasis added).
In the Final Results, Commerce agreed with Stanley’s proposed HTS subheading, stating:
In its Section D questionnaire response, Stanley describes its sealing tape as
“basic packaging tape made from biaxially oriented polypropylene and adhesive.”
Based on the Thai description Thai GTA data under HTS 3920.20.10, we find that
Stanley’s sealing tape is included in this HTS category. Accordingly, for these
final results, we will use Thai HTS 3920.20.10 to value Stanley’s sealing tape.
Final I&D Memo at 32 (footnotes omitted); see also Final Surrogate Value Mem. (Mar. 13,
2017), P.R. 292 at 1, bar code 3553207-01, ECF No. 39 at tab 16.
Court No. 17-00051 Page 19
Before the court, Mid Continent maintains that substantial evidence does not support
Commerce’s choice of Thai HTS subheading 3920.20.10. See Pl.’s Br. 28. For Mid Continent,
this subheading does not cover the most important aspect of the sealing tape, i.e., that it is
adhesive. See Pl.’s Br. 28-29. Instead, Mid Continent again argues for Thai HTS subheading
3919.10, covering “Plates, Sheets, Film, Foil, Tape, And Other Flat Shapes Of Plastics, Self-
Adhesive, In Roll Not Over 20 Cm. (8 in.) Wide,” to value the sealing tape input. Pl.’s Br. 29.
For Mid Continent, even though it is a basket provision, subheading 3919.10 covers self-
adhesive plastic tape that, Mid Continent contends, more closely describes the sealing tape
Stanley reported using. Accordingly, Mid Continent asks the court to remand with instructions to
use Thai HTS subheading 3919.10. Pl.’s Br. 29.
The Government counters that Commerce’s use of Thai HTS subheading 3920.20.10 is
supported by the record and constitutes the “best available information” to value Stanley’s
sealing tape. Def.’s Resp. 22. As noted, this subheading covers “Other plates, sheets, film, foil,
and strip of plastics, non-cellular and not reinforced, laminated, supported, or similarly combined
with other materials: of polymers of polypropylene: biaxially oriented polypropylene film.”
According to the Government, “[t]he crux of Mid Continent’s argument is that the end use of
Stanley’s sealing tape is a more important consideration than the base material when valuing the
input.” Def.’s Resp. 23 (emphasis added). The Government argues, however, that Commerce’s
choice of the more specific subheading (i.e., not a basket provision) was reasonable: “Commerce
determined that Thai HTS category 3920.20.10 is the most product specific because, [like]
Stanley’s sealing tape, the tape is made from biaxially oriented polypropylene film.” Def.’s
Resp. 23; see also Stanley’s Br. 12, 14 (“The record evidence irrefutably established that
Stanley’s sealing tape was manufactured from biaxially oriented polypropylene. Commerce
Court No. 17-00051 Page 20
therefore reasonably based the surrogate value for this input on the Thai HTS subheading that
expressly described products manufactured from biaxially oriented polypropylene,” rather than
“inputs made of undifferentiated ‘plastic.’”). Thus, the Government asks the court to sustain
Commerce’s valuation of Stanley’s sealing tape.
Commerce is charged with the duty of choosing the “best available” surrogate data on the
record to value inputs. 19 U.S.C. § 1677b(c)(1). Among the criteria that the Department
considers when selecting from among the available surrogate data is product specificity. See
Qingdao, 766 F.3d at 1386. In the Final Results, Commerce identified the base material of the
sealing tape reportedly used by Stanley (biaxially oriented polypropylene), as expressly
described in Thai HTS subheading 3920.20.10, whereas the basket provision proposed by Mid
Continent generally covers “plastics.” The Department, then, reasonably chose to use import data
under the HTS subheading that more closely matched the description of the base material in
Stanley’s packing tape. See SolarWorld Americas, Inc. v. United States, 41 CIT __, __, 273 F.
Supp. 3d 1254, 1270 (2017) (sustaining Commerce’s selection of HTS categories to value
respondents’ backsheets input where “the primary material in each respondent’s backsheets was
reflected in the specific material of each category”). While Mid Continent’s argument has some
appeal, it does not carry the day over Commerce’s choice of the subheading that is specific to the
type of plastic from which Stanley’s tape was actually made. Because there is no record evidence
as to which component (plastic or adhesive) constitutes a greater proportion of the value of the
tape, it cannot be said that Commerce did not fulfill its charge to choose the best available
information. Therefore, substantial evidence supports Commerce’s conclusion that the best
available information to value Stanley’s packing tape was the HTS subheading that best
described the material from which Stanley’s tape was made.
Court No. 17-00051 Page 21
III. Plastic Granules Valuation
In its Section D response, Stanley stated that it “purchased plastic granules made of
calcium carbonate reinforced polypropylene plastic from a non-market economy supplier and
consumed this material in the production of plastic-collated nails.” Stanley’s Sec. D Resp., P.R.
110 at 36, bar code 3442643-01, ECF No. 30 at tab 14. The plastic granules are subjected to a
heating process, and, when melted down, are used to bind loose nails together. In particular,
“[p]lastic granules [move] from [a] pipe into [a] heater[,] become soft after heating, and [are]
extruded onto nails surface . . . [and] then plastic will adhere onto nails.” Stanley’s Sec. D Resp.,
P.R. 113, Ex. D-15, ECF No. 30 at tab 14. A purpose of the collating is to permit the nails to be
loaded into a nail gun.
Before Commerce, Mid Continent argued that Commerce should use Thai HTS
subheading 3921.90.90, covering “Other plates, sheets, film, foil and strip, of plastics” to value
the granules input. See Pl.’s Br. 30. According to Mid Continent:
[t]he Department incorrectly valued plastic granules [in] the Preliminary Results
using HTS 3902.10.90.090, “Other,” which falls under HTS 3902.10,
“Polypropylene, In Primary Forms.” . . . Stanley reported that its plastic granules
are made from “calcium carbonate reinforced polypropylene plastic” indicating
that the granules contain more than just polypropylene. As a result, the
Department should value Stanley’s plastic granules input using the Thai HTS
category 3921.90.90.
Final I&D Memo at 32. In other words, Mid Continent argued that Commerce’s preferred
subheading was not specific to the type of plastic Stanley used.
Stanley opposed Mid Continent’s argument, saying:
The Department should value plastic granules using the Thai HTS category[]
3902.10.90, which follows the Department’s practice on this same issue in the
three immediately preceding segments. The notes of HTS Chapter 39 clearly
demonstrate that Stanley’s plastic granules should not be classified under HTS
3921.90.90.
Court No. 17-00051 Page 22
Final I&D Memo at 32. HTS Chapter Note 10, which pertains to subheading 3921.90.90, i.e., the
subheading proposed by Mid Continent, explains that
In heading[] . . . 39.21, the expression “plates, sheets, film, foil and strip” applies
only to plates, sheets, film, foil and strip . . . and to blocks of regular geometric
shape, whether or not printed or otherwise surface-worked, uncut or cut into
rectangles (including squares) but not further worked (even if when so cut they
become articles ready for use).
Explanatory Note 10, Chapter Notes to Chapter 39, available at http://www.wcoomd.org/-
/media/wco/public/global/pdf/topics/nomenclature/instruments-and-tools/hs-nomenclature-
2012/hs-2012/0739_2012e.pdf?la=en (“Chapter Notes”). Stanley argues that the above note does
not describe its plastic granules. Rather, Chapter Note 6, which pertains to HTS subheading
3902.10.90, expressly covers granules sold in bulk, like Stanley’s: “[T]he expression ‘primary
forms’ applies only to the following forms : . . . (b) Blocks of irregular shape, lumps, powders
(including moulding powders), granules, flakes and similar bulk forms.” Id., Chapter Note 6
(emphasis added). Thus, for Stanley, Mid Continent’s preferred subheading was not the best
available information because it did not describe the plastic granules Stanley consumed in the
production of its nails. See Stanley Br. 9 (“Stanley’s plastic granules are not plates, sheets, film,
foil or strip, and, for that reason, they would not be classified under subheading 3921.90.90.”).
In the Final Results, Commerce used Thai HTS subheading 3902.10.90, covering
“Polymers of polypropylene . . . in primary forms: Polypropylene: Other,” to value the plastic
granules, and rejected Mid Continent’s proposed HTS subheading 3921.90.90, covering “Other
plates, sheets, film, foil and strip, of plastics.” By way of explanation, Commerce stated:
The Department addressed this issue in the three previous administrative reviews.
There, we fully explained our rationale for using Thai HTS 3902.10.90, namely
that Stanley’s plastic beads more closely match the description under this HTS
category. This HTS category more specifically covers Stanley’s plastic beads
because it covers polypropylene and not just “plastic.” Additionally, there is no
record evidence that Stanley’s plastic beads lend themselves to being cut into
Court No. 17-00051 Page 23
regular shapes as per HTS 3921 categories. We find that these same reasons are
supported by the record of this administrative review. Thus, for the final results,
we will . . . value Stanley’s plastic granules . . . using Thai HTS subheading
3902.10.90.
Final I&D Memo at 33 (footnotes omitted).
Before the court, Mid Continent argues that Commerce’s determination to use Thai HTS
subheading 3902.10.90 was not supported by substantial evidence. This is because, in Mid
Continent’s view, “Stanley’s plastic granules are not polypropylene in a primary form.” Pl.’s Br.
30 (emphasis added). “Rather, they are made from ‘calcium carbonate reinforced polypropylene
plastic,’” i.e., a product that contains “more than just polypropylene.” Pl.’s Br. 30 (quoting
Stanley’s Sec. D Resp.). Mid Continent characterizes Stanley’s granules as “finished products,”
not “bulk raw materials in a primary form.” Pl.’s Br. 30. That they are melted down to collate
nails, and require no further processing to use them, in Mid Continent’s view, reinforces that the
granules are not in “primary form.” Pl.’s Br. 30-31. Moreover, Mid Continent disagrees with
Commerce’s assertion that “there is no record evidence that Stanley’s plastic beads lend
themselves to being cut into regular shapes as per HTS 3921 categories.” Final I&D Memo at 33.
To the contrary, Mid Continent points to a photograph attached to Stanley’s Section D
questionnaire response, which “clearly shows that the granules are cut into regular shapes.” Pl.’s
Reply. Br. 15. Mid Continent asks the court to remand this issue with instructions that
Commerce “value Stanley’s plastic granules using Thai HTS number 3921.90.90,” the
subheading that covers “Other plates, sheets, film, foil and strip, of plastics,” i.e., “finished
products containing more than just polypropylene in primary form.” Pl.’s Br. 31, 32.
The Government and Stanley disagree with Mid Continent and ask the court to sustain
Commerce’s valuation of Stanley’s plastic granules. First, the Government argues that the HTS
subheading selected by Commerce is more specific to “polypropylene” (the kind of plastic
Court No. 17-00051 Page 24
Stanley represented using) than the subheading proposed by Mid Continent, which covers
“plastics.” Def.’s Resp. 24. Indeed, Stanley described its plastic granules as made of calcium
carbonate reinforced polypropylene plastic in its Section D response.
Next, Stanley argues that Mid Continent’s characterization of “primary form” reveals a
misunderstanding of that term’s meaning. See Stanley’s Br. 8. Chapter Note 6 to Chapter 39 of
the Thai HTS states that the term “primary form” as used in subheading 3902.10.90 “refers only
to the physical form of the imported polypropylene,” including, expressly, “granules . . . and
similar bulk forms.” Stanley’s Br. 9-10 (quoting Chapter Notes, Note 6) (emphasis added).
Therefore, according to Stanley, “Mid Continent’s assertion that the mere presence of calcium
carbonate precludes classification of Stanley’s plastic granules as polypropylene in primary form
has no merit” as a matter of law. Stanley’s Br. 11. Moreover, as a factual matter, Stanley argues
that the photographs on the record show “conclusively that the plastic granules were individually
no larger than 4 millimeters and were sold in 25 kilogram bags,” and therefore, “fit the physical
description of ‘primary form’ in the Thai HTS and that they are sold in bulk.” Stanley’s Br. 11.
Accordingly, Stanley and the Government argue that Commerce’s use of Thai HTS subheading
3902.10.90, covering “Polymers of polypropylene . . . in primary forms: polypropylene: Other”
to value Stanley’s plastic granules was supported by the record and should be sustained.
Based on the record evidence, Commerce’s choice of Thai HTS subheading to value
Stanley’s plastic granules is the best available information. In its questionnaire responses,
Stanley described the granules as made from polypropylene plastic, which Commerce reasonably
found was more specifically described in subheading 3902.10.90 (“polypropylene”), than in
3921.90.90 (“plastics”). See Qingdao, 766 F.3d at 1386.
Court No. 17-00051 Page 25
Mid Continent’s argument that the polypropylene is not “pure,” and therefore is not “in
primary form,” seems to misstate the idea of what “in primary form” means as explained in the
Chapter Notes. Rather than focusing on the chemical composition of the polypropylene, the
notes indicate that “in primary form” refers to the polypropylene’s physical shape (e.g., blocks of
irregular shapes, powders, flakes and granules) and whether it is sold in bulk form. That is, in
primary form means not ready for its ultimate use but, for instance, as here, suitable to be melted
down and further applied to a saleable product. Additionally, photographic evidence placed on
the record by Stanley indicates that the plastic input at issue here is, indeed, polypropylene
plastic pieces measuring no more than 4 millimeters each, and that are sold in bulk form (25
kilogram bags). See Stanley’s Sec. D Resp., P.R. 113 at bar code 3442643-04.
Finally, starting in the fourth review Commerce rejected HTS subheading 3921.90.90
because Stanley’s granules were not cut into regular shapes as a part of the manufacturing
process. See Certain Steel Nails From the People’s Rep. of China, 79 Fed. Reg. 19,316 (Dep’t
Commerce Apr. 8, 2014) (final results of the fourth periodic review) and accompanying Issues
and Dec. Mem., Cmt. 11 12; see also Explanatory Note 10, Chapter Notes (“In heading[] . . .
12
There, Commerce found that
HTS categories under 3921 only apply to plates, sheets, film, foil, strips and to
blocks of regular geometric shapes whether cut or uncut. In addition, information
on the record for another HTS (3902.1090) indicates that it is for polymers of
polypropylene in “primary form” (i.e., blocks of irregular shape, lumps, powders,
granules, flakes, and similar bulk forms). We find that Stanley’s plastic beads
more closely match the description under HTS 3902.10.90 as: 1) this HTS is more
specific because it relates to polypropylene and not just “plastic;” 2) there is no
indication that Stanly’s plastic beads were purchased in a form other than bulk;
and, 3) there is no indication that Stanley’s plastic beads lend themselves to be cut
into regular shapes, as HTS categories under 3921 imply. Thus, for the final
results we will use HTS 3902.10.90 to value Stanley’s plastic beads.
(footnote continued . . .)
Court No. 17-00051 Page 26
39.21, the expression ‘plates, sheets, film, foil and strip’ applies only to plates, sheets, film, foil
and strip . . . and to blocks of regular geometric shape, whether or not printed or otherwise
surface-worked, uncut or cut into rectangles (including squares) but not further worked (even if
when so cut they become articles ready for use).”). Stanley’s granules were melted down.
Accordingly, there was no need for the granules to “lend themselves to being cut into regular
shapes as per HTS 3921 categories,” Final I&D Memo at 33, making subheading 3921.90.90 less
specific. The record here supports the conclusion that Stanley’s polypropylene granules are
specifically covered by HTS subheading 3902.10.90 and the Chapter Notes, and therefore,
import information pertaining to that subheading was the best available surrogate data to value
that input.
CONCLUSION
Commerce’s application of the general rule in § 1673d(c)(5)(A) to calculate the all-others
rate comported with the statute, and is supported by substantial evidence. Also, Commerce’s
surrogate value determinations on sealing tape and plastic granules are supported by substantial
evidence and are, therefore, sustained. Judgment shall be entered accordingly.
/s/ Richard K. Eaton
Richard K. Eaton, Judge
Dated: +VOF



New York, New York
Issues and Dec. Mem., Cmt. 11, accompanying Certain Steel Nails From the People’s Rep. of
China, 79 Fed. Reg. 19,316 (Dep’t Commerce Apr. 8, 2014).