Prosperity Tieh Enter. Co. v. United States , 2023 CIT 95 ( 2023 )

Slip Op. 23-95
UNITED STATES COURT OF INTERNATIONAL TRADE
PROSPERITY TIEH ENTERPRISE CO.,
LTD. AND YIEH PHUI ENTERPRISE
CO., LTD.,
Plaintiffs,
v.
UNITED STATES,
Before: Timothy C. Stanceu, Judge
Defendant,
Consolidated Court No. 16-00138
and
CALIFORNIA STEEL INDUSTRIES,
INC., CLEVELAND-CLIFFS STEEL
CORP., CLEVELAND-CLIFFS STEEL
LLC, NUCOR CORP., STEEL
DYNAMICS, INC., AND UNITED
STATES STEEL CORP.,
Defendant-Intervenors.
OPINION
[Sustaining certain decisions reached in a second remand redetermination
submitted in response to court order]
Dated: June 23, 2023
Donald B. Cameron, Morris, Manning & Martin LLP, of Washington, D.C., for
plaintiff Prosperity Tieh Enterprise Co., Ltd. With him on the briefs were Julie C.
Mendoza, R. Will Planert, Brady W. Mills, Eugene Degnan, Mary S. Hodgins, and Nicholas C.
Duffey.
Consolidated Court No. 16-00138 Page 2
Kelly A. Slater, Appleton Luff Pte Ltd, of Washington D.C., for plaintiff Yieh Phui
Enterprise Co., Ltd. With her on the brief were Jay Y. Nee and Edmund W. Sim.
Elizabeth A. Speck, Trial Attorney, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, of Washington, D.C., for defendant. With her on the briefs
were Brian M. Boynton, Principal Deputy Assistant Attorney General, Patricia M.
McCarthy, Director, and Claudia Burke, Assistant Director. Of counsel on the briefs was
Leslie M. Lewis, Attorney, Office of the Chief Counsel for Trade Enforcement and
Compliance, U.S. Department of Commerce.
Daniel L. Schneiderman and Stephen P. Vaughn, King & Spalding LLP, of
Washington D.C., for defendant-intervenors Cleveland-Cliffs Steel Corp. and
Cleveland-Cliffs Steel LLC.
Alan H. Price, Christopher B. Weld, and Timothy C. Brightbill, Wiley Rein LLP, of
Washington, D.C., for defendant-intervenor Nucor Corp.
Roger B. Schagrin and Jeffrey D. Gerrish, Schagrin Associates, of Washington, D.C.,
for defendant-intervenors Steel Dynamics, Inc. and California Steel Industries, Inc.
Thomas M. Beline and Sarah E. Shulman, Cassidy Levy Kent (USA) LLP, of
Washington, D.C., for defendant-intervenor United States Steel Corp.
Stanceu, Judge: Plaintiffs Prosperity Tieh Enterprise Co., Ltd. (“Prosperity” or
“PT”) and Yieh Phui Enterprise Co., Ltd. (“Yieh Phui” or “YP”) brought actions, now
consolidated, to contest an affirmative “less-than-fair-value” determination issued by
the International Trade Administration, U.S. Department of Commerce (“Commerce” or
the “Department”) in an antidumping duty investigation of certain corrosion resistant
steel products (“CORE”) from Taiwan.
Before the court is the decision (the “Second Remand Redetermination”),
Commerce submitted in response to this Court’s opinion and order in Prosperity Tieh
Consolidated Court No. 16-00138 Page 3
Enterprise Co., Ltd. v. United States, 45 CIT __, 532 F. Supp. 3d 1401 (2021)
(“Prosperity IV”). Final Results of Redetermination Pursuant to Ct. Remand (Int’l Trade
Admin. Feb. 14, 2022), ECF Nos. 155-1 (conf.), 156-1 (public) (“Second Remand
Redetermination”).
In Prosperity IV, this Court, responding to the mandate of the U.S. Court of
Appeals for the Federal Circuit (“Court of Appeals”) in Prosperity Tieh Enterprise Co.,
Ltd. v. United States, 965 F.3d 1320 (Fed. Cir. 2020) (“Prosperity III”), ordered Commerce
to “submit, in accordance with the instructions herein, a second determination upon
remand” that is “consistent with the opinion of the Court of Appeals.” Prosperity IV,
45 CIT at __, 532 F. Supp. 3d at 1409.
Plaintiffs and defendant support the Second Remand Redetermination;
defendant-intervenors are opposed. The court sustains decisions Commerce reached in
the Second Remand Redetermination but, as discussed later in this Opinion, does not
sustain a speculative statement Commerce improperly included in that document.
I. BACKGROUND
Background on this case is presented in prior opinions and is briefly summarized
and supplemented herein. Prosperity IV, 45 CIT at __, 532 F. Supp. 3d at 1402–05;
Prosperity III, 965 F.3d at 1322–26; Prosperity Tieh Enterprise Co., Ltd. v. United States,
42 CIT __, __, 358 F. Supp. 3d 1363, 1365–66 (2018) (“Prosperity II”); Prosperity Tieh
Consolidated Court No. 16-00138 Page 4
Enterprise Co., Ltd. v. United States, 42 CIT __, __, 284 F. Supp. 3d 1364, 1366–68 (2018)
(“Prosperity I”).
A. The Parties
Plaintiffs Prosperity and Yieh Phui are Taiwanese producers and exporters of
CORE. Defendant is the United States. The defendant-intervenors, domestic producers
of steel products, are California Steel Industries, Inc., Cleveland-Cliffs Steel Corp.,
Cleveland-Cliffs Steel LLC, Nucor Corp., Steel Dynamics, Inc., and United States Steel
Corp.
B. The Department’s Final and Amended Final Less-than-Fair-Value Determinations
The agency decision contested in this litigation (the “Amended Final
Determination”) was published as Certain Corrosion-Resistant Steel Products From India,
Italy, the People’s Republic of China, the Republic of Korea and Taiwan: Amended Final
Affirmative Antidumping Determination for India and Taiwan, and Antidumping Duty
Orders, 81 Fed. Reg. 48,390 (Int’l Trade Admin. July 25, 2016) (“Amended Final
Determination and Order”), which modified the Department’s earlier decision (the “Final
Determination”) in Certain Corrosion-Resistant Steel Products From Taiwan: Final
Determination of Sales at Less Than Fair Value and Final Affirmative Determination of Critical
Circumstances, in Part, 81 Fed. Reg. 35,313 (Int’l Trade Admin. June 2, 2016) (“Final
Consolidated Court No. 16-00138 Page 5
Determination”). The period of investigation (“POI”) was April 1, 2014 through
March 31, 2015. Final Determination, 81 Fed. Reg. at 35,313.
In the Final Determination, Commerce determined an estimated weighted
average dumping margin of 3.77% ad valorem for what it treated as a single entity
consisting of Prosperity, Yieh Phui, and a third Taiwanese producer of CORE, Synn
Industrial Co., Ltd. (“Synn”). Final Determination, 81 Fed. Reg. at 35,314. Commerce
incorporated by reference an explanatory memorandum to support its conclusions in
the Final Determination. Issues and Decision Memorandum for the Final Determination in
the Antidumping Duty Investigation of Certain Corrosion-Resistant Steel Products from
Taiwan (May 24, 2016), ECF No. 42-6, PR Doc. 372 (“Final I&D Mem.”).1 In the Amended
Final Determination, Commerce modified its calculation in response to an allegation of
a ministerial error and assigned the Prosperity/Yieh Phui/Synn entity a revised
estimated weighted-average dumping margin of 10.34%. Amended Final Determination
and Order, 81 Fed. Reg. at 48,391.
1References cited as “PR Doc. __” are to documents that were on the record as of
the proceedings in Prosperity Tieh Enterprise Co., Ltd. v. United States, 42 CIT __, 284
F. Supp. 3d 1364 (2018), Joint Appendix (June 7, 2017), ECF Nos. 73 (conf.), 74 (public).
References cited as “Remand PR Doc. __” are to documents placed on the agency record
during Commerce’s redetermination proceedings, Joint Appendix (May 20, 2022), ECF
Nos. 171 (conf.), 172 (public). All citations are to public versions.
Consolidated Court No. 16-00138 Page 6
In the preliminary phase of its investigation, Commerce identified Yieh Phui and
Prosperity as “mandatory” respondents, i.e., respondents it would investigate
individually. Prosperity IV, 45 CIT at __, 532 F. Supp. 3d at 1403 (citing Selection of
Respondents for the Antidumping Duty Investigation on Certain Corrosion-Resistant Steel
Products from Taiwan at 4 (Int’l Trade Admin. July 20, 2015), PR Doc. 62). Commerce
identified Synn as another Taiwanese producer of CORE that had manufactured but
had not exported the subject merchandise to the United States during the POI.
Prosperity I, 42 CIT at __, 284 F. Supp. 3d at 1367 n.4 (citation omitted). Commerce
preliminarily determined that Synn was an affiliate of Yieh Phui “pursuant to section
771(33)(E) of the [Tariff] Act,” 19 U.S.C. § 1677(33)(E), and preliminarily determined
that Yieh Phui and Synn “should be collapsed together and treated as a single company,
pursuant to the criteria laid out in 19 C.F.R. § 351.401(f).” Prosperity IV, 45 CIT at __, 532
F. Supp. 3d at 1403 (citing Final Determination, 81 Fed. Reg. at 35,314). For both
Prosperity and the combined Yieh Phui/Synn entity, Commerce “preliminarily
determined zero margins” and therefore “reached a negative less-than-fair-value
determination.” Id. (citing Certain Corrosion-Resistant Steel Products from Taiwan: Negative
Preliminary Determination of Sales at Less Than Fair Value, 81 Fed. Reg. 72, 73 n.8 (Int’l
Trade Admin. Jan. 4, 2016)).
Consolidated Court No. 16-00138 Page 7
Commerce reached an affirmative final less-than-fair-value determination. Id.
(citing Final I&D Mem. at 11–19 and Final Determination, 81 Fed. Reg. at 35,313).
Commerce continued to “collapse” Yieh Phui and Synn, i.e., treat them as a single
entity, and “determined that PT is also affiliated with Synn” such that “the three
companies should be collapsed together and treated as a single company.” Id., 45 CIT at
__, 532 F. Supp. 3d at 1404 (quoting Final Determination, 81 Fed. Reg. at 35,314).
Concluding that Prosperity had “misreported the yield strength of certain of its sales of
CORE,” Commerce, “invoking its authority under 19 U.S.C. § 1677e, applied ‘facts
otherwise available’ and an ‘adverse inference’ [described by Commerce as ‘adverse
facts available’] to the costs of the sales it found to be misreported.” Id. Commerce
assigned the combined Prosperity/Yieh Phui/Synn entity an estimated weighted-
average dumping margin of 3.77%. Id. While recalculating this margin to 10.34% in the
Amended Final Determination to adjust for the ministerial error, Commerce did not
alter its decisions to collapse the three companies and to draw an adverse inference for
the reporting by Prosperity. Id. (citing Amended Final Determination and Order, 81 Fed.
Reg. at 48,393).
C. Prior Proceedings
In contesting the Amended Final Determination, plaintiffs sought judgment on
the agency record. Rule 56.2 Mot. For J. Upon the Agency R. on Behalf of Pl. Yieh Phui
Consolidated Court No. 16-00138 Page 8
Enterprise Co., Ltd. (Dec. 15, 2016), ECF No. 51; Mem. of Points and Authorities in
Supp. of Pl. Yieh Phui Enterprise Co., Ltd.’s Rule 56.2 Mot. for J. on the Agency R.
(Dec. 15, 2016), ECF Nos. 52 (conf.), 53 (public); Mot. of Pl. Prosperity Tieh Enterprise
Co., Ltd. for J. Upon the Agency R. & Pl. Prosperity Tieh Enterprise Co., Ltd.’s Br. in
Supp. of its Mot. for J. on the Agency R. (Dec. 15, 2016), ECF Nos. 54 (conf.), 55 (public).
Plaintiffs contested the Department’s decision to collapse Prosperity with Yieh
Phui/Synn and the Department’s invoking facts otherwise available with an adverse
inference in response to Prosperity’s reported yield strengths. Prosperity IV, 45 CIT at
__, 532 F. Supp. 3d at 1404.
In Prosperity I, this Court ruled that Commerce reached certain findings
unsupported by the record in making its collapsing decision. Prosperity I, 42 CIT at __,
284 F. Supp. 3d at 1375. This Court also ruled that Commerce had erred in using an
adverse inference on a finding that Prosperity had misreported yield strength
information, Commerce having failed to specify that yield strength was to be reported
according to an external industry standard as opposed to manufacturer’s specifications.
Id., 42 CIT at __, 284 F. Supp. 3d at 1376–82. Reasoning that Commerce had an
obligation to issue adequate reporting instructions for its questionnaire, this Court
noted a “lack of specificity arising from the breadth of the terms Commerce used” and
the “absence of definitions for those terms.” Id., 42 CIT at __, 284 F. Supp. 3d at 1380.
Consolidated Court No. 16-00138 Page 9
Commerce issued its “First Remand Redetermination” in response to the order in
Prosperity I. Final Results of Redetermination Pursuant to Ct. Remand (May 23, 2018),
ECF Nos. 86 (conf.), 87 (public) (“First Remand Redetermination”). Commerce “again
determined that it should collapse Prosperity with the Yieh Phui/Synn entity” and,
under protest, “used Prosperity’s reported yield strength data for its CORE production
rather than facts otherwise available and an adverse inference.” Prosperity IV, 45 CIT at
__, 532 F. Supp. 3d at 1405 (citing First Remand Redetermination at 2). Commerce
determined an estimated weighted-average dumping margin of 3.66% for the combined
entity. Id. (citation omitted). In Prosperity II, the court sustained the First Remand
Redetermination.
The plaintiffs and one of the defendant-intervenors (AK Steel Corp.) appealed
the judgment accompanying Prosperity II, and in Prosperity III the Court of Appeals
vacated this Court’s judgment in Prosperity II and remanded the decision “for further
proceedings consistent with this opinion.” Prosperity III, 965 F.3d at 1328. Specifically,
the Court of Appeals held that “Commerce did not engage in a permissible analysis in
reaching its decision on collapsing of producers” and “further, that Commerce did not
err in invoking its authority to use facts otherwise available with an adverse inference
in response to Prosperity’s reporting of yield strength.” Prosperity IV, 45 CIT at __, 532
F. Supp. 3d at 1405 (citing Prosperity III, 965 F.3d at 1326–28). Pursuant to the mandate
Consolidated Court No. 16-00138 Page 10
issued by the Court of Appeals in Prosperity III, CAFC Mandate in Appeal # 19-1400
(Sept. 8, 2020), ECF No. 132, this Court remanded the First Remand Redetermination to
Commerce in Prosperity IV.
Commerce issued a draft version of the Second Remand Redetermination to the
parties and invited comments, which it received from defendant-intervenors and Yieh
Phui. Draft Results of Redetermination Pursuant to Ct. Remand (Int’l Trade Admin.
Nov. 24, 2021), Remand PR Doc. 2; Corrosion-Resistant Steel Products From Taiwan:
Comments on Draft Results of Second Redetermination (Dec. 10, 2021), Remand PR Doc. 11;
Corrosion-Resistant Steel Products from Taiwan: Rebuttal Comments on the Second Draft
Results of Redetermination (Jan. 26, 2022), Remand PR Doc. 15. Commerce submitted the
Second Remand Redetermination to the court on February 14, 2022.
Plaintiffs submitted comments in support of the Second Remand
Redetermination on March 30, 2022. Pl. Prosperity Tieh’s Comments on the U.S.
Department of Commerce’s [February 14], 2022 Final Redetermination Pursuant to Ct.
Remand, ECF No. 163; Comments of Pl. Yieh Phui Enterprise Co., Ltd. on the Final
Results of Redetermination Pursuant to Ct. Remand, ECF No. 162. Defendant-
intervenors submitted their comments in opposition on the same day. Def.-Intervenors’
Comments on Final Results of Redetermination Pursuant to Ct. Remand, ECF Nos. 164
(conf.), 165 (public) (“Def.-Ints.’ Comments”). Defendant responded to defendant-
Consolidated Court No. 16-00138 Page 11
intervenors’ comments on May 6, 2022, Def.’s Resp. to Def.-Intervenors’ Comments on
Remand Results, ECF Nos. 168 (conf.), 169 (public), and updated their response on
June 2, 2022, Def.’s Corrected Resp. to Def.-Intervenors’ Comments on Remand Results,
ECF Nos. 177 (conf.), 178 (public).
II. DISCUSSION
A. Jurisdiction and Standard of Review
The court exercises subject matter jurisdiction under section 201 of the Customs
Courts Act of 1980, 28 U.S.C. § 1581(c), which grants jurisdiction over civil actions
brought under section 516A of the Tariff Act of 1930 (“Tariff Act”), as amended 19 U.S.C.
§ 1516a.2 Among the decisions that may be contested according to Section 516A are
“[f]inal affirmative determinations” that Commerce issues concerning the sale of goods
at less than fair value. Id. §§ 1516a(a)(2)(B)(i), 1673d. In reviewing an agency
determination, including one issued in response to court remand, the court must set
aside any determination, finding, or conclusion found “to be unsupported by
substantial evidence on the record, or otherwise not in accordance with law.” Id.
§ 1516a(b)(1)(B)(i). Substantial evidence refers to “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” SKF USA, Inc. v.
2
All citations herein to the United States Code are to the 2012 edition except
where otherwise noted. All citations to the Code of Federal Regulations are to the 2021
edition.
Consolidated Court No. 16-00138 Page 12
United States, 537 F.3d 1373, 1378 (Fed. Cir. 2008) (quoting Consol. Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)).
B. The Second Remand Redetermination
In the Second Remand Redetermination, Commerce “reconsidered the
determination to collapse Prosperity with YP/Synn upon further consideration of the
record” and “determined that the record does not provide sufficient information to
support collapsing Prosperity with the YP/Synn entity.” Second Remand Redetermination
at 2. Effectuating this determination, Commerce “recalculated separate margins for
Prosperity and YP/Synn.” Id. at 2–3.
Commerce determined an estimated weighted-average dumping margin for
Prosperity of 11.04%, id. at 4, which, in response to this Court’s order effectuating the
decision of the Court of Appeals, reflected the reinstatement of findings for the use of
facts otherwise available and an adverse inference in response to Prosperity’s reporting
of yield strength, id. at 7. Commerce determined a de minimis estimated weighted-
average dumping margin of 1.20% for what it now determined to be the separate Yieh
Phui/Synn entity, “which, if sustained by the Court, will result in the exclusion of
entries of subject merchandise produced and exported by the YP/Synn entity from the
antidumping duty order.” Id. at 4; see Amended Final Determination and Order, 81 Fed.
Reg. at 48,391–93.
Consolidated Court No. 16-00138 Page 13
C. Commerce’s Decision in the Second Remand Redetermination Not to Collapse
Prosperity with the Yieh Phui/Synn Entity
In Prosperity III, the Court of Appeals held that:
Commerce, in applying its collapsing regulation [19 C.F.R.
§ 351.401(f)] to a situation involving three or more affiliated producers,
must apply the criteria in its regulation to the evidence of relationships
between all three or more of those producers, even when a previous
decision to collapse two of those producers was not contested by any
party to the litigation that gave rise to the remand proceeding.
Prosperity IV, 45 CIT at __, 532 F. Supp. 3d at 1406 (citing Prosperity III, 965 F.3d at 1326).
Commerce, in this proceeding, must determine “either: (i) the relationship between each
individual entity being considered for collapse (here, Prosperity to Synn, Prosperity to
Yieh, and Yieh to Synn) or (ii) the relationship between an individual entity and an
already collapsed entity with which it is being considered for further collapsing (here,
Prosperity to Yieh/Synn).” Id., 45 CIT at __, 532 F. Supp. 3d at 1406–07 (quoting
Prosperity III, 965 F.3d at 1328). “The Court of Appeals viewed as impermissible the
Department’s deeming an analysis of the relationship between Prosperity and Synn to
be an analysis of the relationship between Prosperity and the Yieh Phui/Synn entity,
regardless of the earlier, uncontested collapsing [of Yieh Phui and Synn].” Id., 45 CIT at
__, 532 F. Supp. 3d at 1407.
In its earlier determinations (the Final and Amended Final Determinations, as
well as the First Remand Redetermination), Commerce analyzed only the relationships
Consolidated Court No. 16-00138 Page 14
between Prosperity and Synn and between Yieh Phui and Synn and, upon determining
that Prosperity and Synn could be collapsed, assumed that Prosperity also could be
collapsed with the Yieh Phui/Synn single entity. Commerce did not assess separately
whether Prosperity and Yieh Phui could be collapsed, independently of their respective
relationships with Synn. In the Second Remand Redetermination, Commerce chose to
evaluate “the relationship between Prosperity and the Yieh Phui component of the
YP/Synn single entity.” Second Remand Redetermination at 2.
Under its regulations, Commerce may “treat two or more . . . producers as a
single entity” in antidumping proceedings when three requirements are satisfied.
19 C.F.R. § 351.401(f); see also Prosperity III, 965 F.3d at 1323. First, the entities must be
affiliated. 19 C.F.R. § 351.401(f)(1). Second, affiliated producers must “have production
facilities for similar or identical products that would not require substantial retooling of
either facility in order to restructure manufacturing priorities.” Id. Third, “there is a
significant potential for the manipulation of price or production.” Id.
For purposes of the first requirement, Commerce determined that Prosperity and
Synn were “affiliated” within the meaning of section 771(33)(E) of the Tariff Act,
19 U.S.C. § 1677(33)(E) (2018), “based on Prosperity’s ownership share of Synn during
the period of investigation (POI).” Second Remand Redetermination at 10. Commerce
found, further, that “Prosperity and Yieh Phui were affiliated based on a familial
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relationship and because together they were in a position to control Synn, pursuant to
sections 771(33)(A) and (F) of the [Tariff] Act, respectively.” Id. at 10–11. Commerce
found the second requirement to be met because “Prosperity, Synn, and Yieh Phui all
produced subject merchandise during the POI” and, therefore, that “there was no need
for these producers to retool their facilities in order to restructure manufacturing
priorities.” Id. at 11.
In contesting the Department’s decision in the Second Remand Redetermination
not to collapse Prosperity and the Yieh Phui component of the Yieh Phui/Synn entity,
defendant-intervenors argue that substantial record evidence did not support the
Department’s negative determination under the third requirement in § 351.401(f)(1) for
collapsing, “a significant potential for manipulation of price or production.” As
required by its regulation, Commerce addressed the following non-exhaustive criteria
in applying the third requirement:
(1) “[t]he level of common ownership,” (2) “the extent to which
managerial employees or board members of one firm sit on the board of
directors of an affiliated firm,” and (3) “whether operations are
intertwined,” for example, “through the sharing of sales information,
involvement in production and pricing decisions, the sharing of facilities
or employees, or significant transactions between the affiliated
producers.”
Id. at 11–12 (quoting 19 C.F.R. § 351.401(f)(2)(i)–(iii)) (citation omitted). “While the
Department ‘need not find all of the factors . . . present,’ Commerce ‘must consider the
Consolidated Court No. 16-00138 Page 16
totality of the circumstances.’” Prosperity IV, 45 CIT at __, 532 F. Supp. 3d at 1406
(quoting Prosperity III, 965 F.3d at 1323 (citations omitted)). Commerce is not precluded
from collapsing even where “not all three of the factors are met or where the case for
collapsing is not strong under each one of them when considered separately.”
Prosperity II, 42 CIT at __, 358 F. Supp. 3d at 1368. Nevertheless, collapsing “requires a
‘significant’ potential for manipulation of price or production,” which is a “more
demanding standard.” Prosperity IV, 45 CIT at __, 532 F. Supp. 3d at 1407 (quoting
Prosperity III, 965 F.3d at 1323–24 (citation omitted)).
In its Final Determination, Amended Final Determination, and First Remand
Redetermination, Commerce “did not consider Prosperity’s relationship with Yieh or
Prosperity’s relationship with Yieh/Synn.” Prosperity III, 965 F.3d at 1325. To address
this shortcoming, Commerce conducted “additional analysis of the relationship
between Prosperity and Yieh Phui not addressed previously.” Second Remand
Redetermination at 10. Based on its new analysis, Commerce concluded “that the record
contains insufficient evidence to form a factual basis that ‘significant potential for
manipulation’ exists between Yieh Phui and Prosperity.” Id. at 12. In reaching that
conclusion, Commerce addressed the three factors provided in 19 C.F.R. § 351.401(f)(2)
and determined that they were not satisfied:
First, Prosperity and Yieh Phui do not share any significant
common ownership, and there is no overlap in their largest shareholders.
Consolidated Court No. 16-00138 Page 17
Second, none of Prosperity or Yieh Phui’s managers and directors serve as
managers or directors of the other firm. Third, the record does not reflect
that the operations of Prosperity and Yieh Phui are intertwined in any
way; specifically, the firms do not share sales information, have no
involvement in each other’s production and pricing decisions, do not
share facilities or employees, and had no significant transactions with each
other.
Id. (citations omitted). Commerce concluded, further, that “[t]he record contains several
specific factors which could support Commerce’s finding of a ‘potential for
manipulation of price or production’ between Prosperity and Yieh Phui,” id., but also
concluded these were “scant pieces of evidence” that were insufficient because “the
collapsing criterion requires a ‘significant’ potential for manipulation of price or
production based on the totality of the circumstances,” id. at 13 (footnote omitted).
Among the “factors” Commerce considered relevant but insufficient to show such a
significant potential were:
(1) a familial relationship between Prosperity and Yieh Phui
(suggesting common family control); and (2) the notation in Prosperity’s
verification report that an “informal agreement” exists between Prosperity
and Yieh Phui which provides that Prosperity and Yieh Phui may each
appoint one of Synn’s three directors (suggesting informal coordination
between respondents).
Id. at 12–13 (footnote omitted).
Commerce considered the first factor insufficient under the criterion because,
despite the familial relationship between the two companies (in both of which members
of the Lin family held various positions in ownership, directorship, or management),
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“the record does not support common family control by a family grouping.” Id. at 13.
Commerce found, as to the second factor, that “the informal agreement noted in the
verification report is elsewhere established on record as a formalized agreement,
whereby the three largest shareholders in Synn each appoint a representative director to
Synn’s board.” Id. (footnote omitted). “Such an arrangement between the largest
shareholders in a company is not extraordinary and we do not consider it, in itself,
evidence of potential for manipulation.” Id.
On the decision not to collapse Prosperity and Yieh Phui, defendant-intervenors
argue that Prosperity and Yieh Phui had the potential to manipulate price or production
because of the roles various members of the Lin family, considered “in the aggregate,”
performed in ownership, board membership, and management of the two companies.
Def.-Ints.’ Comments 9–13. According to their argument, Commerce should have
applied the criteria of 19 C.F.R. §§ 351.401(f)(2)(i) (level of common ownership) and (ii)
(extent to which managerial employees or board members of one firm sit on the board
of directors of the affiliated firm) so as to treat the Lin family as a unified “family
entity.” Id. at 10. They maintain that “Commerce rejected this analysis, however,
because it erroneously believed that, even in cases involving control of two companies
by a family entity, the factors at 19 C.F.R. §§ 351.401(f)(2)(i) and (ii) can support
collapsing only when the same individual family members own both companies . . . and
Consolidated Court No. 16-00138 Page 19
when the same individual family members serve as managers or directors of both
companies.” Id. (citing Second Remand Redetermination at 26, 29, 30).
1. Participation of Members of the Lin Family in the Ownership, Control, or
Management of Prosperity and Yieh Phui
Commerce considered the Lin family to be something other than a “unified”
family entity and instead regarded it as having two distinct branches. Commerce found
that the ownership, board, or management of Prosperity involved a different branch of
the Lin family than did the ownership, board, or management of Yieh Phui. Commerce
found, specifically, that “the Lin family members involved in the ownership, board, or
management of Prosperity and its affiliates are all direct family relations (i.e., sibling,
spouse, or parent/child) of Mr. Kao-Huang Lin” and that “the Lin family members
involved in the ownership, board, or management of Yieh Phui are all direct family
relations of Mr. Lin, I Shou.” Second Remand Redetermination at 26. Commerce found,
further, that:
Critically, there is no overlap of ownership, directorship, or
management by any individual member of either branch of the Lin family
with the other (i.e., involvement of Lin family members in Yieh Phui
remains distinct to direct family members of Mr. Lin, I Shou, and the
involvement of Lin family members in Prosperity remains distinct to
direct family members of Mr. Kao-Huang Lin).
Id. at 26–27 (footnote omitted). Commerce found, further, that “Prosperity and Yieh
Phui are competitors” and “there is very little personal or professional interaction
Consolidated Court No. 16-00138 Page 20
among the family members involved in the respective companies.” Id. at 27 (footnote
omitted). Commerce concluded that “the two Lin family groups do not operate
collectively, as a cohesive unit, sharing a common interest or consisting of relationships
that could impact business decisions.” Id. at 27–28.
Asserting that “Commerce assumed that a collapsing analysis must be conducted
at the level of individual family members rather than considering the family as a
collective unit,” defendant-intervenors insist that “Commerce is simply wrong as a
matter of law.” Def.-Ints.’ Comments 11. They submit that “[t]he cases make clear that
the regulatory factors to be considered under 19 C.F.R. § 351.401(f)(2) are
non-exhaustive, and the statute broadly permits Commerce to find a ‘significant
potential for manipulation’ based on family ownership, management positions, and
board memberships in the aggregate.” Id. at 11. They argue that “Commerce failed to
properly analyze the significance of collective family ownership and control here
because it erroneously believed that it was precluded from finding a potential for
manipulation absent the appearance of the same individuals on the boards of both PT
and YP, or ownership by the same individuals.” Id. at 12. These arguments are
unconvincing.
No rule of law required Commerce to consider an extended family such as the
Lin family to be a single, unified entity when applying the criteria of 19 C.F.R.
Consolidated Court No. 16-00138 Page 21
§§ 351.401(f)(2)(i) and (ii).3 Moreover, defendant-intervenors mischaracterize the
reasoning Commerce employed. Commerce did not conclude that, as a matter of law, it
could not find a significant potential for manipulation of price or production “absent
the appearance of the same individuals on the boards of both PT and YP, or ownership
by the same individuals.” Id. at 12. It concluded instead that “the mere fact that there
are ‘familial relations’ between the two entities does not in itself support a determination
that the two entities constitute a single person for purposes of affiliation and
collapsing.” Second Remand Redetermination at 26 (emphasis added) (citing Echjay
Forgings v. United States, 44 CIT __, __, 475 F. Supp. 3d 1350, 1374 (2020)). Commerce
performed the required analysis, making its collapsing determination according to its
non-exhaustive criteria and based on a totality of the circumstances. Defendant-
intervenors arguments amount, at the most, to a contention that Commerce could have
found that one or more of its criteria were met based on the familial relationships. They
do not demonstrate that Commerce reached findings unsupported by substantial record
3
In support of this legal argument, defendant-intervenors cite Echjay Forgings v.
United States, 44 CIT __, 475 F. Supp. 3d 1350 (2020), Jinko Solar Co. v. United States, 41
CIT __, 229 F. Supp. 3d 1333 (2017), and Zhaoqing New Zhongya Aluminum Co. v. United
States, 39 CIT __, 70 F. Supp. 3d 1298 (2015). Def.-Intervenors’ Comments on Final
Results of Redetermination Pursuant to Ct. Remand, ECF Nos. 164 (conf.), 165 (public).
The holdings in these cases do not support the existence of a rule or principle under
which Commerce was required, on the record before it, to regard the Lin family as a
single, unified entity.
Consolidated Court No. 16-00138 Page 22
evidence, considered on the whole, such that it was required to rule otherwise than it
did.
2. The Department’s Considering a Development Occurring After the Close of the
POI in Deciding Not to Collapse Prosperity with the Yieh Phui/Synn Entity
Defendant-intervenors argue that Commerce, in declining to collapse Prosperity
with the Yieh Phui/Synn entity, improperly considered evidence of an event that
occurred after the close of the period of investigation on March 31, 2015. Def.-Ints.’
Comments 4–9. The event at issue is Prosperity’s divesting itself of an ownership
interest in Synn, which divestment became effective in December 2015, after the close of
the POI but before Commerce issued the Preliminary Determination in May 2016. See
id. at 4 (citing Second Remand Redetermination at 32–33). According to defendant-
intervenors’ arguments, considering the divestment was unlawful because it departed
from agency practice without explanation, violated the doctrine of “law of the case,”
and violated the doctrine of judicial estoppel. Id. at 4–5.
The Department’s deciding to consider record evidence of a post-POI
development was atypical, but defendant-intervenors are incorrect that Commerce
failed to explain its rationale for doing so. Commerce explained that the divestment
was relevant in response to the petitioners’ argument in the remand proceeding that
“Prosperity and Yieh Phui could manipulate price and production through their
ownership of Synn.” Second Remand Redetermination at 33 (footnote omitted).
Consolidated Court No. 16-00138 Page 23
Commerce explained, further, in responding to this argument, that “the collapsing
criterion standard is focused on the price or production manipulation which might
transpire in the future,” and, accordingly, that “the fact that Prosperity divested its
interest in Synn prior to the issuance of the Preliminary Determination and, thus, prior to
the imposition of AD duties indicates that concerns regarding the potential for future
manipulation are unfounded.” Id. (footnote omitted).
Nor are defendant-intervenors correct in asserting that Commerce acted contrary
to what they term “the law of the case.” According to their argument, “we have a clear
legal finding—upheld by this Court—that transactions or occurrences are relevant to
‘future manipulation’ in the collapsing analysis only when they take place during the
POI” and “[t]hat particular issue already has been resolved and may not be reopened in
this subsequent stage of the litigation.” Def.-Ints.’ Comments 8. For support, they rely
upon this Court’s rulings in Prosperity II and Prosperity I. Id. at 8–9. But neither of those
cases ruled so broadly as defendant-intervenors describe.
Prosperity II sustained the Department’s decision to collapse Prosperity with the
Yieh Phui/Synn entity despite Prosperity’s argument that its divesting of the interest in
Synn negated a possibility of future manipulation. Prosperity II, 42 CIT at __, 358
F. Supp. 3d at 1369. Commenting that Prosperity’s ownership interest in Synn “had
significance through and beyond the POI itself,” id., this Court held that the “collapsing
Consolidated Court No. 16-00138 Page 24
decision rests on findings supported by substantial evidence on the record considered
as a whole,” id., 42 CIT at __, 358 F. Supp. 3d at 1370. In other words, this Court
declined to hold that the post-POI divestiture was sufficient in itself to negate the
Department’s decision to proceed with the collapsing decision. (This Court’s affirming
that decision in Prosperity II was reversed by the Court of Appeals in Prosperity III on a
different ground, as discussed previously in this Opinion.) The rulings of this Court in
Prosperity II were not equivalent to a holding that Commerce, in any future
circumstance that might arise in this litigation, could not consider evidence of events
occurring outside of the POI when making a collapsing decision.
The Second Remand Redetermination presented just such a circumstance.
Commerce addressed a new and different issue that arose as a result of the decision of
the Court of Appeals in Prosperity III: specifically, whether Prosperity should be
collapsed with the Yieh Phui portion of the Yieh Phui/Synn entity. The divesting
occurring in December 2015 is evidence relevant to that new issue. Defendant-
intervenors fail to show that the doctrine of law of the case precluded Commerce from
considering whether it was pertinent to, and supportive of, its ultimate decision.
In support of their argument, defendant-intervenors also argue that “[m]oreover,
this Court agreed with PT that Commerce erred in considering other evidence
regarding cold-rolling services occurring outside the POI to support the collapsing
Consolidated Court No. 16-00138 Page 25
decision.” Def.-Ints.’ Comments 6 (citing Prosperity I, 42 CIT at __, 284 F. Supp. 3d at
1375). They add that “[a]s the Court of Appeals for the Federal Circuit would later
describe it, ‘the Trade Court vacated Commerce’s Final Determination, concluding that
Commerce had improperly relied on evidence outside the period of investigation.’” Id.(quoting Prosperity III, 965 F.3d at 1324). Contrary to defendant-intervenors’ argument,
this Court’s opinion in Prosperity I did not state a broad holding that Commerce was not
permitted to rely upon evidence outside the POI in making a collapsing decision.
Instead, the opinion identified errors by Commerce in concluding that certain evidence
of intertwined operations between Prosperity and Synn pertained, or pertained
specifically, to the POI when in fact it did not. As the opinion stated, “[r]egarding the
timing of the cold-rolling services that Synn performed for Prosperity, defendant
admits that Commerce incorrectly stated in the Collapsing Memorandum that the cold-
rolling services Synn provided for Prosperity occurred during the POI.” Prosperity I,
42 CIT at __, 284 F. Supp. 3d at 1375 (citation omitted). “Defendant also acknowledges
that the data detailing Synn’s sales to Prosperity and its purchases from Prosperity were
for calendar year 2014, rather than for the POI, as found by Commerce.” Id. (citation
omitted).
The court also disagrees with defendant-intervenors that defendant is judicially
estopped from arguing in support of the Second Remand Redetermination that
Consolidated Court No. 16-00138 Page 26
Commerce was permitted to consider the post-POI divestment, having argued in an
earlier phase of this litigation that Commerce acted permissibly in disregarding it. See
Def.-Ints.’ Comments 8–9. For the Second Remand Redetermination, Commerce
considered the divesting of the interest in Synn when resolving an issue that arose in
the special circumstance resulting from the decision of the Court of Appeals in
Prosperity III. That Commerce had discretion to disregard this record evidence during
the investigation does not compel a conclusion that Commerce lacked discretion to
consider this evidence for a different purpose. In short, the doctrine of judicial estoppel
does not bar defendant from arguing that Commerce could exercise its discretion to
consider this evidence in resolving the new issue as it arose in the current remand
proceeding.
D. The Department’s Decision to Maintain Its Collapsing of Yieh Phui and Synn
Rather than Collapse Synn and Prosperity
Defendant-intervenors contend that even had Commerce decided (over their
objection) not to collapse all three companies into a single entity, it should have
collapsed Prosperity and Synn rather than collapsing Yieh Phui and Synn. Id. at 13–17.
The court does not find merit in this contention.
Defendant-intervenors’ argument conflates what actually are two separate
issues. In effect, they are arguing that Commerce, on this record, was required: (1) to
“uncollapse” the Yieh Phui/Synn entity that Commerce recognized early in the
Consolidated Court No. 16-00138 Page 27
investigation; and (2) after that is accomplished, to collapse Prosperity and Synn.
Of course, it would not have been possible for Commerce to collapse Prosperity with
Synn without first uncollapsing the Yieh Phui/Synn entity (an action not required by the
decision of the Court of Appeals in Prosperity III), and each of these two separate actions
would entail application of the regulatory criteria in 19 C.F.R. § 351.401(f)(2). By
conflating the two actions, defendant-intervenors sidestep the issue of whether Synn,
following the additional remand order that they seek, could or should be investigated
as a separate exporter/producer. Nor do they confront the complications such an
uncollapsing, absent a subsequent collapsing of Prosperity and Synn, would entail. For
example, as noted previously in this Opinion, Synn did not export CORE to the United
States during the POI. Prosperity I, 42 CIT at __, 284 F. Supp. 3d at 1367 n.4 (citation
omitted). In addition, as Commerce pointed out, “Yieh Phui reported without objection
relevant margin calculation information regarding Synn’s cost of production and home
market sales.” Second Remand Redetermination at 35 (footnote omitted).
Commerce addressed the relationships between Yieh Phui and Synn, and those
between Prosperity and Synn, as they pertain to the factor described in 19 C.F.R.
§ 351.401(f)(2)(i), “[t]he level of common ownership.” Commerce justifiably concluded
that this factor strongly favored the Department’s continuing to treat Synn and Yieh
Phui as single entity rather than adopting the course of action defendant-intervenors
Consolidated Court No. 16-00138 Page 28
advocate. Commerce noted that “Yieh Phui is the largest single owner of Synn,” id.
at 35, and compared this ownership interest to that of Prosperity, id. at 36, which had
been Synn’s second largest shareholder but divested itself entirely of that ownership
interest. Regarding the divesting, defendant-intervenors argue that Commerce
improperly considered this event occurring after the close of the POI and assert the
same grounds they asserted in arguing for a single entity consisting of all three
companies, i.e., that Commerce failed to explain its departure from practice, law of the
case, and judicial estoppel. Def.-Ints.’ Comments 14. For the reasons discussed above,
the court again must reject their argument, and accordingly the court finds no fault in
the Department’s giving significant weight to Prosperity’s divesting of its interest in
Synn when deciding in the Second Remand Redetermination not to uncollapse Yieh
Phui and Synn and not to collapse Prosperity and Synn. Even though it was completed
after the close of the POI, the divestment had significant implications for any
determination on whether Prosperity and Synn should be treated as one entity. As
Commerce explained with respect to its decision not to collapse all three companies into
a single entity, a collapsing determination necessarily involves the issue of whether
price or production manipulation might transpire in the future, and the occurrence of
the divesting before issuance of the Preliminary Determination indicated that concerns
of the potential for such future manipulation were “unfounded.” Second Remand
Consolidated Court No. 16-00138 Page 29
Redetermination at 33 (citation omitted). The same rationale pertains to the issue of
whether Prosperity should be collapsed with only the Synn portion of the Yieh
Phui/Synn entity following an uncollapsing of that entity.
Commerce found that the second factor, the extent to which managerial
employees or board members of one firm sit on the board of directors of an affiliated
firm, 19 C.F.R. § 351.401(f)(2)(ii), was met with respect to the Yieh Phui-Synn
relationship and also with respect to the Prosperity-Synn relationship but also
concluded that the ties were more extensive as to the former. Commerce noted that
“Yieh Phui’s President is on Synn’s board, Yieh Phui’s vice president is also a vice
president of Synn,” and “various Yieh Phui managers are also managers at Synn.” Id.
at 35. Commerce stated that “Prosperity’s chairman was also on the board of Synn
(though no other overlap of board or management between Prosperity and Synn was
found).” Id. at 36.
On the third factor, i.e., the presence of intertwined operations, 19 C.F.R.
§ 351.401(f)(2)(iii), Commerce found that they existed between Prosperity and Synn and
also between Yieh Phui and Synn. Defendant-intervenors take issue with this finding,
asserting that “Synn should be collapsed with PT rather than with YP, because it was
highly intertwined operationally with the former and was not at all intertwined with
the latter.” Def.-Ints.’ Comments 14. They add that “in the event that Commerce was
Consolidated Court No. 16-00138 Page 30
deciding which company to collapse with Synn, the ‘intertwined operations’ factor at
19 C.F.R. § 351.401(f)(2)(iii) should have weighed heavily in favor of collapsing Synn
with PT rather than YP.” Id. at 14–15.
In the Second Remand Redetermination, Commerce found that the record
contained “clear evidence of operational intertwining” between Yieh Phui and Synn,
“such as co-located facilities and payments of salaries for managers.” Second Remand
Redetermination at 35–36 (footnote omitted). Commerce stated that “[r]ecord evidence
demonstrates a significant level of common management of Yieh Phui and Synn
Industrial,” offering as examples, inter alia, that Yieh Phui’s president served on Synn’s
board, its vice president served as Vice President of Synn’s Financial Division, and
employees of Yieh Phui served as managers of Synn. Id. at 36 n.198 (citing Less Than
Fair Value Investigation of Certain Corrosion-Resistant Steel Products from Taiwan:
Preliminary Affiliation and Collapsing Memorandum for Yieh Phui Enterprise, Co., Ltd. at 5
(Int’l Trade Admin. Dec. 21, 2015), PR Doc. 272 (“Prelim. Collapsing Mem.”)). Defendant-
intervenors object that the finding as to common management “relates to the separate
factor at 19 C.F.R. § 351.401(f)(2)(ii) regarding the extent to which managerial employees
serve both companies, rather than to the ‘intertwined operations’ factor at 19 C.F.R.
§ 351.401(f)(2)(iii).” Def.-Ints.’ Comments 15. They also point to the lack of “evidence of
shared facilities or transactions between the entities.” Id. This argument is misguided.
Consolidated Court No. 16-00138 Page 31
The factor described in 19 C.F.R. § 351.401(f)(2)(iii) is broader than defendant-
intervenors presume. The text of the regulation contains a non-exhaustive list of
exemplars for consideration: “the sharing of sales information, involvement in
production and pricing decisions, the sharing of facilities or employees, or significant
transactions between the affiliated producers.” 19 C.F.R. § 351.401(f)(2)(iii) (emphasis
added). Therefore, it was reasonable for Commerce to regard Yieh Phui’s and Synn’s
co-location of factory facilities and sharing of management personnel as valid
considerations under this factor. Overall, the Department’s affirmative finding on this
factor was within the intended scope of the regulation.
In arguing that Commerce erred in collapsing Synn with Yieh Phui rather than
Prosperity, defendant-intervenors highlight that Commerce, in the Second Remand
Redetermination, chose to cite the “Preliminary Collapsing Memorandum” for “clear
evidence of operational intertwining” between Yieh Phui and Synn, Def.-Ints.’
Comments 15 (quoting Second Remand Redetermination at 35, 36 n.198 (citing Prelim.
Collapsing Mem. at 5)), and ignored contrary conclusions contained in its “Final
Collapsing Memorandum,” Less Than Fair Value Investigation of Certain Corrosion-
Resistant Steel Products from Taiwan: Final Affiliation and Collapsing Memorandum at 7, PR
Doc. 379 (May 24, 2016) (stating, inter alia, that “[t]he record does not contain evidence
to suggest that operations were intertwined between either Yieh Phui and Synn
Consolidated Court No. 16-00138 Page 32
Industrial or Yieh Phui and Prosperity Tieh during the POI.”). This argument is also
unpersuasive. Commerce was free to re-examine the record during the remand
proceeding and make findings contrary to those it had made during the investigation.
The most that can be said for defendant-intervenors’ position is that the record,
which contained evidence of transactions between Prosperity and Synn, see Def.-Ints.’
Comments 16, could have supported a finding that the intertwining of Prosperity’s and
Synn’s operations was more extensive than the intertwining of Yieh Phui’s and Synn’s
operations. But that finding, standing alone, would not invalidate the Department’s
determination on the issue, which rested primarily on the first two factors of 19 C.F.R.
§ 351.401(f)(2). Nothing required Commerce to base its conclusion exclusively on the
third factor. That the third factor, considered in isolation, could have favored
collapsing Synn with Prosperity instead of with Yieh Phui is not a sufficient basis upon
which the court may disallow the Department’s ultimate conclusion on the question
presented. As Commerce concluded,
For this final redetermination, we find that the higher ownership
stake in Synn maintained by Yieh Phui (as its largest individual owner),
the significant ownership overlap and co-location of factory facilities, and
in particular the record information which demonstrates that Prosperity
divested its interest in Synn discussed above, support our determination
in the Draft Results to include Synn’s information in the calculation of the
margin for YP/Synn and calculate a separate margin for Prosperity, and
we continue to do so in this final redetermination.
Consolidated Court No. 16-00138 Page 33
Second Remand Redetermination at 36–37. The court must reject defendant-intervenors’
contention that the record evidence required Commerce to collapse Synn with
Prosperity and not with Yieh Phui.
E. Commerce’s Reinstatement of Facts Otherwise Available and an Adverse
Inference for the Reporting of Yield Strength Data in the Second Remand
Redetermination
The Court of Appeals held in Prosperity III that “the Trade Court erred [in
Prosperity II] when it reversed Commerce’s finding that Prosperity misreported yield
strength. We vacate that aspect of the Trade Court’s judgment.” 965 F.3d at 1328.
Accordingly, in Prosperity IV this court ordered that “in the Second Remand
Redetermination Commerce, in determining a margin for Prosperity, shall employ the
use of facts otherwise available with an adverse inference as to the reporting of yield
strength by Prosperity that it used in its final and amended determinations.”
Prosperity IV, 45 CIT at __, 532 F. Supp. 3d at 1409. Commerce has done so, and no party
contests this aspect of the Second Remand Redetermination.
F. Exclusion of the Yieh Phui/Synn Entity from the Antidumping Duty Order
Further to the Department’s permissible decisions in the Second Remand
Redetermination not to collapse Prosperity with the Yieh Phui/Synn entity and not to
alter its decision to maintain Yieh Phui and Synn as a collapsed entity, the court will
sustain the Department’s assigning Prosperity an estimated weighted average dumping
Consolidated Court No. 16-00138 Page 34
margin of 11.04% and its assigning a de minimis estimated weighted average dumping
margin of 1.20% to the Yieh Phui/Synn entity, as a consequence of which the Yieh
Phui/Synn entity must be excluded from the Order. In sustaining these decisions, the
court does not sustain the following statement in the Second Remand Redetermination:
While YP/Synn will be excluded from the order as a result of this
redetermination, in the future, to the extent evidence indicates that the
circumstances have changed and that the three companies are acting as a
collapsed entity, Commerce has authority to investigate the relationship of
the companies and may find the merchandise produced by the collapsed
entity to be subject to the order.
Second Remand Redetermination at 37. In including this statement within the Second
Remand Redetermination, Commerce asserts that it may exercise the authority in the
future (ostensibly, in a future review conducted under section 751(b) of the Tariff Act,
19 U.S.C. § 1675(b) (2018)) to assess antidumping duties on merchandise produced or
exported by a company, entity, or companies that have been excluded from the Order
as a result of having been assigned a de minimis margin in an antidumping duty
investigation. In including this statement in the determination before the court,
Commerce is attempting, speculatively, to decide an issue or issues that are not before
the court in this litigation and, therefore, are not among the issues Commerce was
authorized to decide in the remand proceeding that it conducted under the court’s
supervision. The court, therefore, does not sustain the sentence in question. The court’s
Consolidated Court No. 16-00138 Page 35
entry of a judgment that will conclude this consolidated action does not signify that the
sentence in question is a correct statement with respect to law or fact.
III. CONCLUSION
The court will sustain the decisions in the Second Remand Redetermination
assigning Prosperity an estimated weighted average dumping margin of 11.04%,
assigning the Yieh Phui/Synn entity a de minimis margin of 1.20%, and excluding that
entity from the Order. The court does not sustain the Department’s statement on the
possibility that the outcome of a future proceeding may alter or affect the exclusion
from the Order of the Yieh Phui/Synn entity. The court will enter judgment
accordingly.
/s/ Timothy C. Stanceu
Timothy C. Stanceu
Judge
Dated: June 23, 2023
New York, New York