Jiangsu Senmao Bamboo & Wood Indus. Co. v. United States , 2024 CIT 47 ( 2024 )

Slip Op. 24-47
UNITED STATES COURT OF INTERNATIONAL TRADE
JIANGSU SENMAO BAMBOO
AND WOOD INDUSTRY CO.,
LTD.,
Plaintiff,
and
LUMBER LIQUIDATORS
SERVICES, LLC,
Plaintiff-Intervenor,
Before: Jennifer Choe-Groves, Judge
v.
Court No. 22-00190
UNITED STATES,
Defendant,
and
AMERICAN MANUFACTURERS
OF MULTILAYERED WOOD
FLOORING,
Defendant-Intervenor.
OPINION
[Remanding the U.S. Department of Commerce’s Final Results of Redetermination
Pursuant to Remand Order in the antidumping duty review of multilayered wood
flooring from the People’s Republic of China.]
Dated: April 19, 2024
Court No. 22-00190 Page 2
Jeffrey S. Neely and Stephen W. Brophy, Husch Blackwell, LLP, of Washington,
D.C., for Plaintiff Jiangsu Senmao Bamboo and Wood Industry Co., Ltd.
Matt R. Ludwikowski and Kelsey Christensen, Clark Hill, PLC, of Washington,
D.C., for Plaintiff-Intervenor Lumber Liquidators Services, LLC. With them on
the brief was Sally Alghazali.
Kelly M. Geddes, Trial Attorney, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, of Washington, D.C. Of Counsel was Christopher
Kimura, Attorney, Office of the Chief Counsel for Trade Enforcement &
Compliance, U.S. Department of Commerce, of Washington, D.C.
Timothy C. Brightbill and Stephanie M. Bell, Wiley Rein, LLP, of Washington,
D.C., for Defendant-Intervenor American Manufacturers of Multilayered Wood
Flooring. Maureen E. Thorson and Theodore P. Brackemyre also appeared.
Choe-Groves, Judge: Before the Court is the U.S. Department of
Commerce’s (“Commerce”) remand redetermination in the administrative review
of the antidumping duty order on multilayered wood flooring from the People’s
Republic of China (“China”) for the period of December 1, 2019 through
November 30, 2020, filed pursuant to the Court’s Opinion and Order in Jiangsu
Senmao Bamboo & Wood Industry Co., Ltd. v. United States (“Senmao I”), 47 CIT
__, 651 F. Supp. 3d 1348 (2023). See Final Results of Redetermination Pursuant to
Remand Order (“Remand Redetermination”), ECF No. 55-1; see also Multilayered
Wood Flooring from the People’s Republic of China (“Final Results”), 87 Fed.
Reg. 39,464 (Dep’t of Commerce July 1, 2022) (final results of antidumping duty
administrative review; 2019–2020) and accompanying Issues and Decision
Memorandum for the Final Results of Antidumping Duty Administrative Review:
Court No. 22-00190 Page 3
Multilayered Wood Flooring from the People’s Republic of China; 2019–2020
(Dep’t of Commerce June 24, 2022) (“IDM”), PR 245.1 For the reasons discussed
below, the Court remands Commerce’s Remand Redetermination.
ISSUES PRESENTED
The Court reviews the following issues:
1. Whether Commerce’s determination to select Brazil as the primary
surrogate country, while using Brazilian and Malaysian data for
valuing log inputs, is supported by substantial evidence; and
2. Whether Commerce’s determination to adjust the Brazilian surrogate
value data for plywood is supported by substantial evidence.
BACKGROUND
The Court presumes familiarity with the underlying facts and procedural
history of this case as set forth in Jiangsu Senmao Bamboo & Wood Industry Co.,
Ltd. v. United States (“Senmao I”), 47 CIT __, __, 651 F. Supp. 3d 1348, 1354
(2023).
Commerce initiated an administrative review of the antidumping duty order
on multilayered wood flooring from China for the period of December 1, 2019 to
1
Citations to the administrative record reflect the public record (“PR”) and public
remand record (“PRR”) numbers filed in this case, ECF Nos. 48, 64.
Court No. 22-00190 Page 4
November 30, 2020 and selected Plaintiff Jiangsu Senmao Bamboo and Wood
Industry Co., Ltd. (“Plaintiff” or “Senmao”) as the mandatory respondent in the
investigation. Initiation of Antidumping and Countervailing Duty Admin.
Review Multilayered Wood Flooring from the People’s Republic of China, 86 Fed.
Reg. 8166, 8169–71 (Dep’t of Commerce Feb. 4, 2021); Commerce’s Resp.
Selection Mem. (Mar. 9, 2021), PR 112.
In its Final Results, Commerce selected Brazil as the primary surrogate
country and valued Senmao’s oak and non-oak logs with Malaysian surrogate
values. IDM at 9; see also Multilayered Wood Flooring from the People’s
Republic of China (“Preliminary Results”), 86 Fed. Reg. 73,252 (Dep’t of
Commerce Dec. 27, 2021) (preliminary results of the antidumping duty
administrative review, preliminary determination of no shipments, and rescission
of review, in part; 2019–2020) and accompanying Decision Memorandum for the
Preliminary Results of Antidumping Administrative Review (Dec. 17, 2022)
(“PDM”) at 17, PR 213. Commerce determined that Brazilian surrogate values
were not usable for oak and non-oak log inputs. Senmao I, 47 CIT at __, 651
F. Supp. 3d at 1357 (citing PDM at 17). Commerce did not cite any record
evidence to support its determination that Brazilian surrogate values regarding oak
log inputs were highly questionable, inadequate, or unavailable such that a
departure from a single surrogate country was warranted. Id.
Court No. 22-00190 Page 5
Commerce also adjusted the Brazilian surrogate values for plywood by
excluding data that it determined to be incorrect regarding the quantity of plywood.
IDM at 9. Commerce determined that the Spanish import data for 2020 were
incorrect because the data reported the same quantity of plywood in cubic meters
(“m3”) as it did in kilograms (“kg”). Id. Because the m3 unit measures volume and
the kg unit measures weight, Commerce concluded that it was “illogical for the
Spanish import data to report the same quantity in these two different units of
measure.” Id. As a result, Commerce removed the Spanish import data. In
making this determination, Commerce relied on Exhibit 9 of Multilayered Wood
Flooring from the People’s Republic of China: Surrogate Value Comments
(“AMMWF Surrogate Value Comments” or “AMMWF Surrogate Value Cmts.”),
but never placed the document on the record. Senmao I, 47 CIT at __, 651 F.
Supp. 3d at 1361; AMMWF Surrogate Value Cmts. (July 29, 2021), PR 180, 182.
Commerce calculated Senmao’s antidumping duty margin at 39.27%. Final
Results, 87 Fed. Reg. at 39,465.
Because Commerce failed to cite necessary record evidence, provide
adequate explanations, and include cited evidence on the record, the Court
remanded for Commerce to reconsider its determinations. Senmao I, 47 CIT at __,
651 F. Supp. 3d at 1358, 1361. The Court remanded for Commerce to reconsider
its determination to apply Malaysian surrogate values for both oak and non-oak log
Court No. 22-00190 Page 6
inputs without providing a reasonable explanation for departing from Commerce’s
established practice of using one surrogate country or supporting its determination
with substantial evidence. Id. at __, 651 F. Supp. 3d at 1357. The Court also
directed Commerce to reconsider or further explain its adjustment of plywood
surrogate values because Commerce cited evidence that was not on the record. Id.
at __, 651 F. Supp. 3d at 1361.
On remand, Commerce continued to select Brazil as the primary surrogate
country. Remand Redetermination at 5‒6. Commerce also determined that it was
appropriate to value Senmao’s non-oak log inputs using Brazilian data and its oak
log inputs using Malaysian data. Id. at 15. Commerce revised the antidumping
duty rate and assigned a 34.68% dumping margin to Senmao. Id. at 17.
Senmao filed Plaintiff’s Comments in Opposition to Remand
Redetermination. Pl.’s Cmts. Opp’n Remand Redetermination (“Senmao’s
Cmts.”), ECF No. 57. Plaintiff-Intervenor Lumber Liquidators Services, Inc.
(“Plaintiff-Intervenor” or “Lumber Liquidators”) filed Lumber Liquidators’
Comments in Opposition to the Remand Redetermination. Pl.-Interv.’s Cmts.
Opp’n Remand Redetermination (“Pl.-Interv.’s Cmts.”), ECF No. 58. Defendant
United States (“Defendant” or “the Government”) filed Defendant’s Response to
Comments on Remand Results. Def.’s Resp. Cmts. Remand Results (“Def.’s
Resp.”), ECF No. 60. Defendant-Intervenor American Manufacturers of
Court No. 22-00190 Page 7
Multilayered Wood Flooring (“Defendant-Intervenor” or “AMMWF”) filed
Defendant-Intervenor American Manufacturers of Multilayered Wood Flooring’s
Comments in Support of Remand Determination. Def.-Interv.’s Cmts. Supp.
Remand Determination (“AMMWF’s Cmts.”), ECF No. 59.
JURISDICTION AND STANDARD OF REVIEW
The U.S. Court of International Trade has jurisdiction pursuant to 19 U.S.C.
§ 1516a(a)(2)(B)(iii) and 28 U.S.C. § 1581(c), which grant the Court authority to
review actions contesting the final results of an administrative review of an
antidumping duty order. The Court shall hold unlawful any determination found to
be unsupported by substantial evidence on the record or otherwise not in
accordance with law. 19 U.S.C. § 1516a(b)(1)(B)(i). The Court also reviews
determinations made on remand for compliance with the Court’s remand order. Ad
Hoc Shrimp Trade Action Comm. v. United States, 38 CIT 727, 730, 992 F. Supp.
2d 1285, 1290 (2014), aff’d, 802 F.3d 1339 (Fed. Cir. 2015).
DISCUSSION
I. Legal Framework
Antidumping duties are calculated as the difference between the normal
value of subject merchandise and the export price or the constructed export price of
the subject merchandise. 19 U.S.C. § 1673. To determine the normal value of the
subject merchandise in a non-market economy, Commerce must calculate surrogate
Court No. 22-00190 Page 8
values using “the best available information regarding the values of such factors in
a [comparable] market economy.” Id. § 1677b(c). In doing so, Commerce relies
on one or more market economy countries that are (1) “at a level of economic
development comparable to that of the non[-]market economy country,” and (2)
“significant producers of comparable merchandise.” Id. § 1677b(c)(4).
Commerce’s task is to “attempt to construct a hypothetical market value” of the
subject merchandise in the non-market economy. Nation Ford Chem. Co. v. United
States, 166 F.3d 1373, 1375 (Fed. Cir. 1999). When Commerce determines that
there is more than one country at the same level of economic development as the
non-market economy country and is a significant producer of comparable
merchandise, Commerce will consider the quality and availability of the surrogate
value data. See Fujian Lianfu Forestry Co. v. United States, 33 CIT 1056, 1075,
638 F. Supp. 2d 1325, 1347 (2009).
Commerce’s regulatory preference is to value all factors of production with
surrogate values from a single surrogate country. 19 C.F.R. § 351.408(c)(2); see
Jiaxing Brother Fastener Co., Ltd. v. United States, 822 F.3d 1289, 1302
(Fed. Cir. 2016). Commerce may use a second surrogate country, however, if data
from the primary surrogate country are unavailable or unreliable. See Import
Admin. Policy Bull. No. 04.1: Non-Market Economy Surrogate Country Selection
Process (“Policy Bulletin No. 04.1”) (Dep’t of Commerce Mar. 1, 2004). When
Court No. 22-00190 Page 9
the data from a single surrogate country are “demonstrably aberrational as
compared to certain benchmark prices, and alternative data sources could be better
corroborated,” Commerce’s preference for using data from a single country may be
deemed unreasonable. Peer Bearing Co.-Changshan v. United States, 35 CIT 103,
119, 752 F. Supp. 2d 1353, 1369–72 (2011).
II. Selection of Surrogate Country and Surrogate Values for Log
Inputs
Senmao argues that Commerce failed to provide sufficient evidence or
explanations that would justify a departure from Commerce’s preference for a
single surrogate country or would support Commerce’s use of a secondary
surrogate country to value Senmao’s inputs. Senmao’s Cmts. at 7.
If Commerce has a routine practice for addressing similar situations, it must
either apply that practice or provide a reasonable explanation regarding why
Commerce has deviated from that practice. See SKF USA, Inc. v. United States,
263 F.3d 1369, 1382 (Fed. Cir. 2001) (“An agency action is arbitrary when the
agency offers insufficient reasons for treating similar situations differently.”
(internal citation omitted)); see also M.M. & P. Mar. Advancement, Training, Educ.
& Safety Program v. Dep’t of Commerce, 729 F.2d 748, 755 (Fed. Cir. 1984) (“An
agency is obligated to follow precedent, and if it chooses to change, it must explain
why.”); see also Cinsa, S.A. de C.V. v. United States, 21 CIT 341, 349, 966
Court No. 22-00190 Page 10
F. Supp. 1230, 1238 (1997) (“Commerce can reach different determinations in
separate administrative reviews but it must employ the same methodology or give
reasons for changing its practice.”).
19 C.F.R. § 351.408(c) provides that, “[f]or purposes of valuing the factors
of production, . . . [Commerce] normally will value all factors in a single surrogate
country.” 19 C.F.R. § 351.408(c)(2). Commerce explained that when
promulgating its regulations, the preference for a single country is meant to prevent
parties from “margin shopping,” and Commerce may depart from its regulatory
preference for a single surrogate country when Commerce determines that the
“accuracy of available information regarding prices for particular factors in the
surrogate country is ‘highly questionable,’” in which case Commerce may reject
the questionable values and use data from a second country. Antidumping Duties;
Countervailing Duties, 61 Fed. Reg. 7308, 7345 (Dep’t of Commerce Feb. 27,
1996). Commerce may use a secondary surrogate country if financial data are
“inadequate or unavailable.” See Policy Bulletin 04.1 (“After all, a country that
perfectly meets the requirements of economic comparability and significant
producer is not of much use as a primary surrogate if crucial factor price data from
that country are inadequate or unavailable.”).
In evaluating surrogate value data, Commerce considers several factors,
including whether the surrogate values are publicly available, contemporaneous
Court No. 22-00190 Page 11
with the period of review, representative of a broad market average, tax and duty-
exclusive, and specific to the inputs being valued. See Policy Bulletin No. 04.1;
see also Qingdao Sea-Line Trading Co. v. United States, 766 F.3d 1378, 1386
(Fed. Cir. 2014) (citing the same factors). Commerce explained that comparable
merchandise is determined on a case-by-case basis, the meaning of a significant
producer can differ from case to case, and fixed standards have not been adopted in
Commerce’s surrogate country selection process. See Policy Bulletin No. 04.1. In
assessing whether a country is a significant producer of comparable merchandise,
Commerce considers whether all of the potential surrogate countries have
significant exports of comparable merchandise but does not consider levels of
significance in comparison with other countries. See id.A. Commerce’s Selection of Brazil as a Surrogate Country
The remand states that, “Commerce found that the [surrogate value] data on
the record for both Brazil and Malaysia are publicly available, contemporaneous
with the [period of review], representative of broad market averages, tax- and duty-
exclusive, and specific to the inputs being valued.” Remand Redetermination at 5
(citing PDM at 17).
Commerce determined that it was appropriate to continue with its selection
of Brazil as the primary surrogate country because:
Court No. 22-00190 Page 12
(1) the record contains usable Brazilian data for valuing the majority of
Senmao’s [factors of production]; and (2) the financial statements of
Brazilian company Duratex S.A. [(“Duratex”)] on the record are
contemporaneous with the [period of review] and superior to the
financial statements of Malaysian company Focus Lumber Berhad
[(“Focus Lumber”)].”
Id. at 5‒6 (citing PDM at 17; Commerce’s Surrogate Values for the Preliminary
Results (Dec. 17, 2021) (“Prelim. Surrogate Value Mem.”), PR 210‒211).
Commerce failed to cite any specific documents on the record in support of
its determination. Commerce only cited to the Preliminary Determination
Memorandum to support its conclusory statement in the Remand Redetermination
that Brazilian and Malaysian surrogate values were publicly available,
contemporaneous with the period of review, representative of a broad market
average, tax and duty-exclusive, and specific to the inputs being valued. There is
no further discussion of any documents in evidence, nor any further explanation in
the Remand Redetermination of how any record evidence supports Commerce’s
determinations.
19 U.S.C. § 1516a(b)(1)(B)(i) requires that Commerce must support its
determinations with substantial record evidence. By merely citing “PDM at 17” as
support for its remand determination that the surrogate value data for both Brazil
and Malaysia are publicly available, contemporaneous with the period of review,
representative of broad market averages, tax- and duty-exclusive, and specific to
Court No. 22-00190 Page 13
the inputs being valued, Commerce failed to cite substantial evidence. See
Remand Redetermination at 5.
First, Commerce’s Preliminary Determination Memorandum itself is not
record evidence because it expresses the agency’s views. Moreover, a review of
page 17 of the Preliminary Determination Memorandum states that, “[w]e
considered the [surrogate value] data on the record and determine that both the
Brazilian and Malaysian data generally are publicly available, contemporaneous
with the [period of review], representative of broad market averages, tax- and duty-
exclusive, and specific to the inputs being valued.” PDM at 17. No citation to
record evidence appears in support of this conclusory statement on page 17 of the
Preliminary Determination Memorandum.
Second, Commerce only cited to the Preliminary Determination
Memorandum and Preliminary Surrogate Value Memorandum to support its
determination that Brazil was the appropriate primary surrogate country. Neither
the Preliminary Determination Memorandum nor the Preliminary Surrogate Value
Memorandum are record evidence; both documents merely express the agency’s
views. Commerce’s references to the Preliminary Determination Memorandum
and Preliminary Surrogate Value Memorandum did not include any citations to
particular documents in evidence that show how Commerce reached the
determination that Brazil was the appropriate primary surrogate country.
Court No. 22-00190 Page 14
The Remand Redetermination states that, “[t]o comply with the Court’s
Remand Order, we reconsidered the [surrogate value] for Senmao’s log inputs and
determined that the substantial evidence did not lead us to conclude that the
Brazilian log [surrogate value] is either highly questionable, inadequate, or
unavailable to use to value Senmao’s log inputs.” Remand Redetermination at 6.
Commerce only cites to the Draft Remand Redetermination, the IDM, and Final
Surrogate Value Memorandum. None of these are documents in evidence.
It is insufficient under 19 U.S.C. § 1516a(b)(1)(B)(i) for Commerce to
simply declare that its determination is supported by substantial evidence, citing to
its own determinations, without actually discussing any documents on the record
that support its determinations. See 19 U.S.C. § 1516a(b)(1)(B)(i) (“The court
shall hold unlawful any determination, finding, or conclusion found . . . to be
unsupported by substantial evidence on the record, or otherwise not in accordance
with law.”). The Court already remanded once for Commerce’s failure to cite
evidence, and must now remand again for the same failure.
The Court holds that Commerce’s determinations are not supported by
substantial evidence because Commerce failed to identify any record evidence on
which it relied on for the determinations that Brazilian and Malaysian surrogate
value data were publicly available, contemporaneous with the period of review,
representative of a broad market average, tax and duty-exclusive, and specific to
Court No. 22-00190 Page 15
the inputs being valued, nor any evidence to support its determination that Brazil
was the appropriate primary surrogate country. The Court remands these issues for
further reconsideration consistent with this Opinion.
B. Surrogate Values for Log Inputs
With respect to log inputs, Commerce used Brazilian surrogate values for the
valuation of Senmao’s non-oak log inputs and used Malaysian surrogate values for
the valuation of Senmao’s oak log inputs. Remand Redetermination at 14‒15.
Senmao argues that Commerce’s selection of Malaysia as a secondary
surrogate country is inconsistent with Commerce’s policy preference to use a
single surrogate country to value inputs. Senmao’s Cmts. at 7‒10. Senmao
contends that Commerce’s decision to use Malaysian data to value oak logs was
based solely on a finding that Malaysian data were more specific than Brazilian
data. Id. at 9. Senmao also argues that Commerce did not cite to any record
evidence that shows that Brazilian data under Harmonized Tariff Schedule
(“HTS”) subheading 4403.99 would distort the margin if the data were used to
value oak logs that are classified under HTS subheading 4403.91. Id. at 10.
Defendant counters that Commerce’s decision to use Malaysian data was
based on the fact that there were no Brazilian data available on the record to value
oak logs, not because Malaysian data were more specific. Def.’s Resp. at 7.
Defendant argues that there was no evidence of Brazilian imports classified under
Court No. 22-00190 Page 16
HTS subheading 4403.91 for the period of review and that the unavailability of
such information warranted the use of a secondary primary country, consistent with
Commerce’s practice. Id. at 9 (citing Policy Bulletin No. 04.1).
The Court is remanding Commerce’s determination to select Brazil as the
primary surrogate country due to Commerce’s failure to cite substantial evidence,
and therefore does not reach the issue of whether Commerce’s determination to use
Malaysia as a secondary surrogate country to value oak log inputs is supported by
substantial evidence.
III. Adjustment of Surrogate Values for Plywood
Senmao argues that Commerce’s determination to adjust surrogate values for
plywood is inconsistent with Commerce’s practice of adjusting a surrogate value
after considering whether it is aberrational in the aggregate. Senmao’s Cmts. at 12.
As noted previously, if Commerce has a routine practice for addressing
similar situations, it must either apply that practice or provide a reasonable
explanation regarding why Commerce deviated from that practice. See SKF USA,
Inc., 263 F.3d at 1382. Commerce has a standard practice of considering whether
the average unit value (“AUV”) is aberrational in the aggregate for the
economically comparable surrogate countries or as compared to historical AUVs of
the surrogate country at issue. See SolarWorld Americas, Inc. v. United States, 42
CIT __, __, 320 F. Supp. 3d 1341, 1351–52 (2018) (“Commerce explains that its
Court No. 22-00190 Page 17
practice is to assess aberrationality by examining HTS data both across potential
surrogate countries and within the surrogate country over multiple years . . . [and]
considers import data to be aberrationally high if that data [are] ‘many times higher
than import values from other countries.’”). Interested parties need to demonstrate
that the import data are aberrational in the aggregate. Id.On remand, Commerce maintained that its initial determination to adjust the
plywood surrogate values by removing erroneous data was reasonable. Remand
Redetermination at 15. Commerce stated that it complied with the Court’s Order
in Senmao I by attaching Exhibit 9 of AMMWF’s Surrogate Value Comments
(“Exhibit 9”), which demonstrates “the density of various wood species and
standard conversion factors of wooden products.” Id. (citing AMMWF’s Surrogate
Value Comments, at Ex. 9). Commerce explained that Exhibit 9 supports
Commerce’s decision to remove an erroneous line of Spanish import data from the
plywood AUVs because Exhibit 9 “demonstrates that a quantity of plywood
expressed in [m3] cannot be the same as the quantity expressed in [kg].” Id. at 15‒
16. Commerce determined that instead of disqualifying an entire dataset for
containing erroneous data, it was unnecessary to do so in this instance because the
problem caused by the erroneous data was “easily remedied” by removing the
distinct subset of Spanish import data, thus making the remaining dataset “more
Court No. 22-00190 Page 18
accurate” and enabling Commerce to use the surrogate values of plywood from the
primary surrogate country of Brazil. Id. at 16.
Senmao argues that Commerce’s determination is inconsistent with
Commerce’s practice of removing data only if the data are “aberrational in the
aggregate.” Senmao’s Cmts. at 10‒15. Senmao asserts that when Commerce
removed the data subset containing Spanish values for Brazilian plywood imports,
it distorted the data in a manner that was grossly adverse to Senmao. Id. at 16.
The Government counters that Commerce only applies the “aberrational in
the aggregate” test when a party argues that a data point is unusually high or low
and is therefore likely to distort the average value. Def.’s Resp. at 12. The
Government argues that in this case, Commerce’s determination to remove the
Spanish data was not based on the reasoning that the data were aberrational, but
because the quantities expressed in m3 and kg units made the data incorrect and
Commerce could not rely on such data when calculating Senmao’s dumping
margin. Id. at 13. The Government also asserts that removing the data subset with
the Spanish values did not distort the data on the record because Commerce
removed incorrect data in order to use “the best available information” to
determine an accurate antidumping margin. Id. at 14.
Commerce explained that its decision to remove the data subset with the
Spanish values for the Brazilian imports was not based on a determination that the
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data were many times higher than import values from other countries, but based on
the fact that the quantities expressed in association with the units of measurement
made the data incorrect for the purposes of measuring the quantity of plywood.
Remand Redetermination at 16. By removing the incorrect data subset, Commerce
stated that it was able to calculate Senmao’s dumping margin using the best
available information on the record and as accurately as possible. Id. (citing
Shakeproof Assembly Components, Div. of Illinois Tool Works, Inc. v. United
States, 268 F.3d 1376, 1382 (Fed. Cir. 2001)).
Commerce simply cited to Exhibit 9 as support for Commerce’s decision to
remove Spanish import data that Commerce deemed erroneous, but Commerce
failed to explain how Exhibit 9 demonstrates that a quantity of plywood expressed
in m3 cannot be the same as the quantity expressed in kg. Commerce attached
Exhibits 9, 9A, and 9B to the Remand Redetermination and AMMWF’s Surrogate
Value Comments, yet Commerce did not identify which of these exhibits it actually
relied on to show how the density of various wood species and standard conversion
factors demonstrate that the Spanish import data were erroneous. At no point did
Commerce cite to specific information in Exhibits 9, 9A, or 9B to illustrate that it
was illogical for the Spanish m3 and kg values to be expressed in the same quantity.
Furthermore, Commerce made a conclusory statement that removing the
Spanish import data would enable Commerce to calculate the dumping margins as
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accurately as possible. Commerce failed to explain, however, how the removal of
the Spanish import data would be more accurate, or how such removal made the
rest of the dataset the “best available information” pursuant to 19 U.S.C.
§ 1677b(c)(1). See 19 U.S.C. § 1677b(c)(1) (“[T]he valuation of the factors of
production shall be based on the best available information regarding the values of
such factors in a market economy country or countries considered to be appropriate
by the administering authority.”).
The fact that the kg and m3 quantities cannot be the same does not support
the automatic conclusion, without any explanation, that removal of erroneous data
led to a more accurate dataset. Senmao points out that Commerce’s adjustment of
the dataset led to an increase of the Brazilian plywood surrogate value from $1.33
per m3 to $7.36 per m3, yet Commerce concluded that it was using the best
information available without showing how the $7.36 per m3 was more accurate
than the $1.33 per m3. Senmao’s Cmts. at 16. The Court agrees with Senmao that
Commerce did not provide a reasonable explanation for how its removal of the
Spanish import data led to a more accurate dataset, and Commerce did not
establish how removing the Spanish import data would result in the best available
information for calculating Senmao’s dumping margin rate. The Court notes that
Commerce removed the purportedly erroneous data without providing the parties
with a chance to correct the information and without explaining why it was more
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accurate to remove the incorrect data than to allow the parties to provide corrected
data. On remand, the Court suggests that Commerce should consider providing the
parties with the opportunity to submit corrected information that will lead to a
more accurate dumping margin calculation, rather than simply removing data from
a larger dataset without explaining how removal is more accurate than allowing for
the submission of corrected information. It seems to the Court that allowing the
Parties to submit corrected information would lead to a more accurate result than
merely deleting subsets of information that Commerce deems to be erroneous.
The Court concludes that Commerce’s determination to adjust the Brazilian
plywood dataset by removing the Spanish import data is not supported by
substantial evidence on the record. The Court remands the issue for further
consideration consistent with this Opinion.
CONCLUSION
For the foregoing reasons, the Court concludes that Commerce’s Remand
Redetermination is not supported by substantial evidence. Accordingly it is hereby
ORDERED that Commerce’s Final Results of Redetermination Pursuant to
Remand Order, ECF No. 55-1, are remanded to Commerce for reconsideration
consistent with this Opinion; and it is further
ORDERED that this case shall proceed according to the following schedule:
(1) Commerce shall file the remand determination on or before June 20,
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2024;
(2) Commerce shall file the administrative record on or before July 3, 2024;
(3) Comments in opposition to the remand determination shall be filed on or
before August 20, 2024;
(4) Comments in support of the remand determination shall be filed on or
before September 20, 2024; and
(5) The joint appendix shall be filed on or before September 30, 2024.
/s/ Jennifer Choe-Groves
Jennifer Choe-Groves, Judge
Dated: April 19, 2024
New York, New York