Hubbell Power Systems, Inc. v. United States , 365 F. Supp. 3d 1302 ( 2019 )

Slip Op. 19-25
UNITED STATES COURT OF INTERNATIONAL TRADE
HUBBELL POWER SYSTEMS, INC.
Plaintiffs,
v. Before: Jane A. Restani, Judge
UNITED STATES,
Court No. 15-00312
Defendant,
and PUBLIC VERSION
VULCAN THREADED PRODUCTS INC.
Defendant-Intervenor
OPINION AND ORDER
[Antidumping duty determination remanded for Commerce to reevaluate application for rate
separate from China-wide entity rate]
Dated: February 27, 2019
Kevin M. O’Brien, and Christine M. Streatfeild, Baker & McKenzie LLP, of
Washington, DC, for the plaintiff Hubbell Power Systems, Inc.
Elizabeth A. Speck, Senior Trial Counsel, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, of Washington, DC, for the defendant. With her on the brief were
Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director,
and Patricia M. McCarthy, Assistant Director. Of Counsel on the brief was Khalil N. Gharbieh,
Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department
of Commerce, of Washington, DC.
Roger B. Schagrin, Christopher T. Cloutier, and Paul W. Jameson, Schagrin Associates
Washington, DC, for the defendant-intervenor Vulcan Threaded Products Inc.
Restani, Judge: This matter concerns the Department of Commerce’s (“Commerce”) final
results of the fifth administrative review of the antidumping (“AD”) duty order on certain steel
1
threaded rod from the People’s Republic of China (“PRC”). Certain Steel Threaded Rod from the
People’s Republic of China; Final Results of 2013–2014 Antidumping Duty Administrative
Review, 80 Fed. Reg. 69,938 (Dep’t Commerce Nov. 12, 2015) (“Final Results”). Hubbell
Power Systems, Inc (“Hubbell”), a U.S. importer of Chinese exporter Gem-Year Industrial Co.
Ltd. (“Gem-Year”) products, challenges Commerce’s rejection of Gem-Year’s application for
separate rate status and assignment of the 206% PRC-wide rate to Gem-Year. Pl.’s Brief in Supp.
of Mot. for J. on the Agency R. Pursuant to Rule 56.2, Doc. No. 33 (“Hubbell Br.”). For the
reasons stated below, the matter is remanded for Commerce to reconsider Gem-Year’s separate
rate application and, if it determines that Gem-Year is entitled to a separate rate, to determine
that rate.
BACKGROUND
In 2009, Commerce issued an AD duty order on certain steel threaded rod from the PRC.
Certain Steel Threaded Rod from the People’s Republic of China: Notice of Antidumping Duty
Order, 74 Fed. Reg. 17,154 (Dep’t Commerce Apr. 14, 2009). In response to requests by
interested parties, Commerce initiated its fifth administrative review of the order for the period
of review (“POR”) April 1, 2013 to March 31, 2014. See Initiation of Antidumping and
Countervailing Duty Administrative Review, 79 Fed. Reg. 30,809 (Dep’t Commerce May 29,
2014) (“Initiation Notice”). Commerce selected exporter Gem-Year as one of two mandatory
respondents for the review. See Issues & Decision Mem. for the Final Results of the Fifth
Administrative Review of the Antidumping Duty Order on Certain Steel Threaded Rod from the
People’s Republic of China, 2013-2014, at 1, A-570-932, POR: 4/1/2013–3/31/2014 (Dep’t
Commerce Nov. 3, 2015) (“I&D Memo”). During the review, however, Commerce found that
Gem-Year had “failed to cooperate by not acting to the best of its ability,” because it did not
2
provide Commerce with “full and complete answers” to its inquiries. Id. at 27. Commerce
highlighted Gem-Year’s inadequate information regarding various factors of production
(“FOPs”) and late disclosure that its affiliate, Jinn-Well Auto Parts (Zhejiang) Co. Ltd. (“Jinn-
Well”), had likely produced in-scope merchandise. 1 Id. at 9–28. Commerce claimed that to
properly conduct a separate rate analysis it needed to examine not only Gem-Year’s corporate
structure, but also the operations of its affiliated manufacturers of in-scope merchandise–Jinn-
Well and Gem-Duo. Id. at 27. Although Commerce apparently knew that both Gem-Duo and
Jinn-Well existed, it was not made aware that Jinn-Well likely had produced in-scope
merchandise until verification. Id. at 21–22, 26–27. Accordingly, Commerce stated that Gem-
Year’s separate rate information was “unreliable and incomplete” and had “deficiencies in Gem-
Year’s corporate structure and affiliation information,” such that a separate rate was not merited.
Id. at 27–28. Thus, Commerce applied “total” adverse facts available (“AFA”) and “placed
[Gem-Year] in the PRC-wide entity.” Id. at 28.
Hubbell challenges this result and claims that Commerce improperly conflated Gem-
Year’s separate rate inquiry with the issue of whether Gem-Year supplied the necessary data
needed to set such a rate. See Hubbell Br. at 13–16. It argues that any purported deficiencies
must go “to the heart of . . . corporate ownership and control” for Commerce to deny a separate
rate. Id. at 14. At base, Hubbell argues that “the record does not support a finding of state
1
At the administrative level, Gem-Year disputed whether the merchandise was in fact within the
scope of the AD duty order, see Case Brief of Gem-Year, C.R. 551, 14–16 (June 22, 2015)
(“Gem-Year Case Brief”), [[
]]; see also I&D Memo at 21–22
(stating that the products are within scope and noting Gem-Year’s objection). Hubbell “takes no
position” on this matter, Hubbell Br. at 5 n. 3., so the court will assume for its purposes that the
products fell within the scope of the AD duty order.
3
ownership or control.” Id. at 16. Further, Hubbell argues that, although Commerce was not made
aware that Jinn-Well produced potentially-subject merchandise, its status as Gem-Year’s affiliate
was clear from a timely-submitted organizational chart. Id. at 17–18.
According to the chart, Jinn-Well is a fully-owned subsidiary of Gem-Year and Chin-
Champ Enterprise Co., Ltd., which in turn can both be traced back to the same four Taiwanese-
national owners (members of the Tsai Family) and public shareholders. Id. at 18–20; Gem-Year
Section A. Questionnaire Response, Ex. 10 “Investment Relation Chart of Gem-Year,” C.R. 11
(Aug. 22, 2014) (“Gem-Year Org. Chart”). Because Commerce assessed government control of
Gem-Year and the Tsai Family, and had received at least some of Jinn-Well’s financial records,
Hubbell argues that Commerce ignored significant evidence showing a lack of government
control that entitled it to a separate rate. Hubbell Br. at 18–20. Hubbell also stresses that the Jinn-
Well merchandise constituted a very small fraction of Gem-Year’s exports and that there was no
indication that this merchandise was exported to the United States. Id. at 17. Finally, Hubbell
challenges Commerce’s imposition of the PRC-wide rate resulting from an adverse inference,
arguing that it is untethered to the record and punitive given Gem-Year’s active participation in
the review. Id. at 22–26.
Defendant United States (“the government”) and Defendant-Intervenor Vulcan Threaded
Products Inc. (“Vulcan”) argue that applying the PRC-wide rate to Gem-Year based on an
adverse inference is supported by substantial evidence and otherwise in accordance with law.
Def.’s Resp. to Pl.’s Mot. for J. Upon the Agency R., Doc. No. 46 (“Def. Br.”); Def.-Intervenor’s
Resp. to Pl.’s USCIT Rule 56.2 Mot. for J. on the Agency R., Doc. No. 45 (“Vulcan Br.”). The
government states that “this case presents unusual circumstances in which Commerce received
some separate rate information and sought to verify that information, but discovered at
4
verification that the separate rate information was incomplete.” Def. Br. at 13. Because Gem-
Year omitted the information about Jinn-Well’s production, Commerce determined that Gem-
Year “failed to cooperate to the best of its ability,” which in turn led Commerce to disregard all
of Gem-Year’s proffered information as unreliable. Id. at 14. The government disagrees with
claims that the information necessary to evaluate government control of Jinn-Well was on the
record, pointing out in its briefing before the Court missing information, such as business
licenses and plans, and Commerce’s inability to verify such information given the late notice. 2
Id. at 16–18. Accordingly, the government argues that Commerce was unable to assess “the
Chinese government’s involvement in Jinn-Well’s business decisions, its purchases and price-
setting, or the appointment of its management.” Id. at 17.
The government claims that absent verification, it cannot validate Hubbell’s assertions
that the Jinn-Well merchandise was only a small fraction of relevant exports and may not have
been shipped to the United States. Id. at 22–23. The government emphasizes that “Commerce did
not assign Gem-Year an adverse facts available margin” (emphasis in original), but rather “as
adverse facts available, Commerce rejected all of Gem-Year’s separate rate information and
included Gem-Year in the China-wide entity.” Id. at 25. Vulcan largely agrees with the
government. See Vulcan Br. at 11–32. It also stresses the validity of Commerce’s rebuttable
presumption of state control in non-market economies (“NME”) and that those seeking a
separate rate must prove lack of de jure and de facto control rather than Commerce proving
control. See id. at 11–14.
2
No specific categories of missing corporate structure information were mentioned in
Commerce’s determination.
5
In its reply, Hubbell essentially contends that if Commerce needed additional information
to verify a lack of government control of Jinn-Well, then it should have requested it. See Pl.’s
Reply Br. in Supp. of Mot. for J. on the Agency R. Pursuant to Rule 56.2, Doc. No. 50 (“Hubbell
Reply Br.”). Hubbell also claims that as all subject merchandise for this review was produced in
2009 and because Commerce previously found a lack of government control during the first
administrative review covering 2008–2010, Commerce should have explained why the previous
finding of independence fails to alter the outcome here. Hubbell Reply Br. at 8.
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2012). The court upholds
Commerce’s final results of an administrative review of an AD duty order 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).
DISCUSSION
I. Whether Gem-Year is Entitled to a Separate Rate
a. Separate Rate Determination Framework
Although the parties largely agree on the underlying facts, they deviate in their
understanding of precisely why Commerce denied Gem-Year’s separate rate application.
Hubbell understands Commerce to have denied the separate rate application because of an
arguably small amount of undisclosed Jinn-Well merchandise, which it claims is not enough to
undermine Gem-Year’s application. See Hubbell Reply Br. at 6. In contrast, the government
understands Commerce to have made its decision not based on Jinn-Well’s production of in-
scope merchandise per se, but because it found that the failure to mention this production until
the end of verification undermined the reliability of Gem-Year’s entire separate rate application.
6
Def. Br. at 13–15. Although the latter understanding best comports with Commerce’s reasoning
in its issues and decision memo, see I&D Memo at 25–28, as detailed below, even under a more
generous reading of Commerce’s rationale, the resulting decision is not supported by substantial
evidence.
The Court of Appeals for the Federal Circuit (“CAFC”) has consistently upheld
Commerce’s use of a rebuttal presumption of state control such that entities in NMEs are
assigned the state-wide AD duty rate unless they demonstrate eligibility for a separate rate. 3 See
e.g., Diamond Sawblades Mfrs. Coal. v. United States, 866 F.3d 1304, 1310–11 (Fed. Cir. 2017);
Changzhou Hawd Flooring Co., Ltd. v. United States, 848 F.3d 1006, 1009 (Fed. Cir. 2017);
Michaels Stores, Inc. v. United States, 766 F.3d 1388, 1390 (Fed. Cir. 2014); Sigma Corp. v.
United States, 117 F.3d 1401, 1405 (Fed. Cir. 1997). If an entity demonstrates a lack of de jure
and de facto government control, Commerce will assign it a separate rate. AMS Assoc., Inc. v.
United States, 719 F.3d 1376, 1379 (Fed. Cir. 2013). With regard to government control, the
CAFC has stated that:
The absence of de jure government control can be shown by reference to
legislation and other governmental measures that suggest sufficient company
legal freedom. The absence of de facto government control can be shown by
evidence that an exporter sets its prices independently of the government and of
other exporters, negotiates its own contracts, keeps the proceeds of its sales
(taxation aside), and selects its management autonomously.
Id. (internal citations omitted); see also, Final Determination of Sales at Less than Fair Value:
Sparklers from the People’s Republic of China, A-570-804, 56 Fed. Reg. 20,588, 20,589 (Dep’t
Commerce May 6, 1991) (“Sparklers”). 4
3
The state-wide rate is, in essence, an individual rate for an entire state entity. See 19 U.S.C. §
1673d(c)(1)(B)(i)(I-II).
4
In that review, which Commerce references in this administrative review, Commerce stated:
7
Commerce evaluates an entity’s separate status by requiring it to prove that it is wholly-
foreign owned 5 or otherwise establish that it is independent through a separate rate application. 6
See I&D Memo at 26. If an entity shows that it is entitled to a separate rate, then Commerce
typically estimates a dumping margin based on how much the normal value, as derived from the
producer’s FOPs valued in a surrogate market economy, exceeds the export price or constructed
export price. See 19 U.S.C. § 1677(35); 19 U.S.C. § 1677b(c); I&D Memo at 45. As indicated, if
an entity fails to establish separate rate status by not rebutting the presumption of state control,
Commerce can place the entity within the PRC-wide entity. Additionally, Commerce has broad
Evidence supporting, though not requiring, a finding of de jure absence of central control
includes: (1) An absence of restrictive stipulations associated with an individual
exporter's business and export licenses; (2) any legislative enactments decentralizing
control of companies; or (3) any other formal measures by the government
decentralizing control of companies. De facto absence of central government control with
respect to exports is based on two prerequisites: (1) Whether each exporter sets its own
export prices independently of the government and other exporters; and (2) whether each
exporter can keep the proceeds from its sales.
Sparklers at 20,589; see also I&D Memo at 25–26 (referencing the Sprinkler’s test).
5
According to Section A of Gem-Year’s AD questionnaire response:
Gem-Year was established on November 17, 1995, as a wholly foreign owned
company in the PRC. Gem-Year made its initial public offering in January 2007 and has
been listed and traded on the Shanghai Stock Exchange ever since. [[
]].
Gem-Year Section A Questionnaire Response, at 2, C.R. 11 (Aug. 22, 2014). Commerce,
however, found that Gem-Year was not a wholly foreign-owned because it is a publicly-traded
PRC company. I&D Memo at 26.
6
Entities that have received a separate rate in the administrative review immediately prior to an
administrative review at issue need only submit a separate rate certification stating that they
continue to satisfy the requirements for such status. See Initiation Notice, 79 Fed. Reg. at 30,810.
8
discretion in choosing an AFA rate, which the rate applied to the China-wide entity is. It need
only act reasonably in the light of the record, but this discretion is not boundless. See F.lli De
Cecco Di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027, 1032 (Fed. Cir. 2000).
For instance, where application of the PRC-wide rate presumes government control, if a
respondent proves an absence of control, Commerce “may not apply the PRC-wide rate as the
AFA rate where AFA is warranted for sales and FOP data.” Qingdao Taifa Grp. Co. v. United
States, 637 F. Supp. 2d 1231, 1240 (CIT 2009).
The POR at issue in this administrative review is 2013-2014. As indicated, Hubbell
asserts that the previous finding of lack of PRC control for 2009, the production year, should
dictate the result here. Government control can arise, however, at other points in the exportation
process, for instance, in price setting or contract negotiation. Thus, although this information is
something that Commerce could have considered in deciding whether to grant Gem-Year’s
separate rate application, lack of consideration of this information is not dispositive.
b. Late Notice of Jinn-Well’s Production of In-Scope Merchandise
Hubbell continually states that it disclosed Jinn-Well’s status as an affiliate in a timely-
submitted, organizational chart. Hubbell Reply Br. at 5–10; see also Gem-Year Org. Chart. Thus,
it argues, Commerce is at fault for any failure to investigate Jinn-Well. The court is not
persuaded. The chart contains numerous affiliates–some fully-owned by Gem-Year, some not–
that, under Hubbell’s logic, Commerce would have been required to investigate without any
indication from Gem-Year that these affiliates had produced subject merchandise. See Gem-Year
Org. Chart. Rather than engage in this potentially-lengthy undertaking, Commerce reasonably
asked Gem-Year to identify those affiliates that produced subject merchandise and then set out to
9
investigate those affiliates. This is administratively practicable and saves all parties time and
effort.
Nonetheless, the imposition of China’s total AFA rate in response to Gem-Year’s failure
to timely reveal Jinn-Well’s production of some small amount of subject merchandise appears
unduly punitive or arbitrary given the extensive factual information that remained on the record. 7
See F.lli De Cecco, 216 F.3d at 1032 (holding that 19 U.S.C. § 1677e(b) does not sanction
imposing “punitive, aberrational, or uncorroborated margins,” but rather incentivizes
cooperation). Commerce has not asserted that the remaining timely-submitted information was
deficient regarding the question of government control, could not be verified, was incomplete,
unduly difficult to assess, or that Gem-Year failed to act to the best of its ability in providing
Commerce with government control information. Commerce instead stated, in general terms, that
it “discovered numerous deficiencies that significantly impact[ed] the Department’s dumping
analysis and the separate rate inquiry in particular” such that it deemed “the separate rate
information submitted by Gem-Year to be unreliable and incomplete, as a whole.” I&D Memo at
26–27.
Commerce’s claim that the Jinn-Well omission taints all of Gem-Year’s submissions
strains credulity. See Qingdao Taifa Grp. Co., Ltd. v. United States, 760 F. Supp. 2d 1379, 1384
(CIT 2010) (noting that when a respondent is less than honest it is proper to “treat internal
documents about who is running [the respondent] with skepticism. Skepticism, however, does
not mean total disregard”). Although omissions, lies, and non-cooperation have in some cases
been enough to merit Commerce’s choice to disregard all information, the discrepancy relied on
7
While the exact amount has not been finally established, it seems clear that Jinn-Well was not a
major producer. See Gem-Year Verification Report, A-570-932, C.R. 430, Exhibit XIII-C at 6
(Mar. 25, 2015).
10
here does not rise to the level present in such cases. See, e.g., Ad Hoc Shrimp Trade Action
Comm. v. United States, 802 F.3d 1339, 1355–56 (Fed. Cir. 2015) (determining that substantial
evidence supported Commerce’s decision to place respondent in the PRC-wide entity given its
repeated misrepresentations and concealment of a relationship with an illegal enterprise until
Commerce placed on the record irrefutable evidence proving affiliation); AMS Assoc. Inc., 719
F.3d at 1380 (upholding Commerce’s denial of separate rate status in a case where respondent
removed confidential information, which resulted in a lack of information on the record needed
to assess government control).
Further, Commerce did not discover the production discrepancy here on its own and
confront Gem-Year, rather, two days after confirming previously-submitted questionnaire
responses stating that Gem-Duo was the only affiliate that produced subject merchandise, Gem-
Year officials revealed that Jinn-Well also produced some potentially relevant merchandise. See
Verification of the Sales and Factors of Production Responses of Gem-Year Indus. Co., Ltd. and
Gem-Duo Co., Ltd. in the Fifth Admin. Review of Certain Steel Threaded Rod from the PRC, A-
570-932, C.R. 353, at 6 (Dep’t Commerce Apr. 30, 2015) (“Verification Report”); compare with
Ad Hoc Shrimp, 802 F.3d at 1356 (noting that the respondents in that case only admitted to an
affiliation when confronted with unequivocal proof). Moreover, there is at least some indication
that Gem-Year may not have understood the Jinn-Well products to be within the scope of the AD
duty order and that these products were not sold in the United States. See Verification Report at
6; Gem-Year Case Brief at 14–16. Nonetheless, after this revelation, Commerce did ask for and
seemingly received “a complete product listing identifying everything that Jinn-Well produced
and sold to Gem-Year in 2009, and identifying all products that met the definition of the scope.”
Verification Report at 6.
11
This is not a case in which it appears that the omissions are so severe or central to the
actual question at issue that they normally would prevent Commerce from determining whether
Gem-Year is under state control. See Ad Hoc Shrimp, 802 F.3d at 1357 (rejection of separate
rate status when the omissions went “to the heart of [the respondent’s] ownership and control”
and “cut across all aspects of the data.”) (internal citations omitted). As the court has previously
stated, a company’s failure to provide information unrelated to establishing entitlement to a
separate rate does not necessarily undermine submissions demonstrating an absence of
government control. See Shenzhen Xinboda Indus. Co. v. United States, 180 F. Supp. 3d 1305,
1316–17 (CIT 2016) (holding that Commerce cannot find a respondent’s separate rate
information “tainted” on the basis of deficiencies in sales data as such data is unrelated to
corporate ownership and control); Lifestyle Enter. Inc. v. United States, 768 F. Supp. 2d 1286,
1296 (CIT 2011) (holding that a respondent’s failure in unrelated aspects of a review does not
undermine its application for separate rate status); Shangdong Huarong Gen. Grp. Corp. v.
United States, 27 C.I.T. 1568, 1594 (2003) (denying Commerce’s assignment of a PRC-wide
dumping margin where respondents presented “evidence of their entitlement to separate rates”
when there was “no indication that any necessary information was missing or incomplete”).
Here, the production data deficiencies do not relate to the threshold determination of government
control, but rather impact Commerce’s ability to set an accurate dumping rate. Although
Commerce is free to disregard unverifiable information, it has notably not asserted that the
information regarding government control submitted by Gem-Year is unverifiable. See AMS
Assoc., Inc., 719 F.3d at 1380 (noting that 19 U.S.C. § 1677e(a)(2)(D) instructs Commerce to
use facts otherwise available if the information submitted by an interested party cannot be
12
verified). Given the ample record here, Commerce’s assertion that Gem-Year’s submissions are
materially deficient regarding corporate structure and affiliation are not supported. 8
There appears to be sufficient evidence in the record to assess government control for
Gem-Year, Gem-Duo, and Jinn-Well, 9 even if some data is missing, although at this point it is
unclear what such missing data would be. On remand, Commerce should recognize Gem-Year as
a separate rate entity or clearly specify what material gaps in information as to Jinn-Well’s status
remain and how that undermines Gem-Year’s claim to separate rate status. The court stresses the
need for Commerce to clearly bifurcate its decision on whether Gem-Year is entitled to a
separate rate from any decision regarding its ability to calculate such a rate accurately.
II. Application of Adverse Facts Available in Calculating a Separate Rate for Gem-
Year
On remand, should Commerce determine that Gem-Year is entitled to a separate rate, nothing
in this opinion should be read to prevent Commerce from applying adverse inferences to facts
otherwise available in calculating such a rate. Should Commerce need to utilize facts otherwise
available, it should explain which information is missing, that is, what gap results from deficient
8
The court notes that Commerce found that Gem-Year did not act to the best of its ability in
providing information. These findings, however, seem to rest primarily, if not entirely, on
failures to provide information necessary to set an accurate separate rate, rather than information
necessary to establish a lack of government control. Thus, unless Commerce on remand explains
how the information on government control is insufficient under 19 U.S.C. § 1677m(e), the court
presumes it is adequate.
9
In addition to the investment relation chart mentioned above, such evidence includes Gem-
Year’s financial statements from 2012 and 2013 [[
]], see Gem-Year’s Section A Response, C.R. 10, at 36–37 (Aug. 22, 2014) [[
]] and Jinn-Well’s
business license, see Business License for Enterprise Activity, C.R. 66, at 76 [[
]],
in addition to the information gathered during verification on Gem-Year and Gem-Duo.
13
reporting, and on what basis any adverse inference is being drawn with regard to such
deficiency. See 19 U.S.C. § 1677e. The court notes that although Gem-Year’s failure to disclose
Jinn-Well’s production of potentially-subject merchandise is insufficient on its own to apply
AFA to the threshold inquiry regarding state control, this failure may be relevant to an
application of AFA in arriving at a separate rate. See e.g., Qingdao Taifa Grp. Co., 637 F. Supp.
2d at 1239–41 (upholding Commerce’s decision to disregard all of a plaintiff’s submitted
information to facts relevant to calculating the dumping margin given its active attempts to hide
and alter sales data and other relevant documents). 10
CONCLUSION
For the foregoing reasons, this matter is remanded for Commerce to reevaluate Gem-
Year’s separate rate application in a manner consistent with this opinion and if it finds that Gem-
Year is entitled to a separate rate, to determine one. The remand redetermination should be filed
with the court within 60 days of the date of this order and all other parties shall have 30 days
thereafter to file comments on the remand redetermination.
_/s/Jane A. Restani_
Jane A. Restani, Judge
Dated: February 27, 2019
New York, New York
10
In that case, the court held that the direct application of the PRC-wide rate as the AFA rate was
not appropriate where a respondent had established a lack of government control, but that AFA
could be applied “to all of the facts relevant in calculating [the respondent’s] dumping margin.”
Qingdao Taifa Grp. Co., 637 F. Supp. 2d at 1240. The court does not suggest that Gem-Year’s
conduct was like that of Qingdao Taifa Group Co., merely that the choice of any particular rate
based on application of AFA is not determined here.
14