Coal. of Am. Mfrs. of Mobile Access Equip. v. United States , 2024 CIT 66 ( 2024 )

Slip Op. 24-66
UNITED STATES
COURT OF INTERNATIONAL TRADE
Court No. 22-00152
COALITION OF AMERICAN MANUFACTURERS
OF MOBILE ACCESS EQUIPMENT,
Plaintiff,
v.
UNITED STATES,
Defendant,
and
ZHEJIANG DINGLI MACHINERY CO., LTD.,
Defendant-Intervenor.
Before: M. Miller Baker, Judge
OPINION
[The court sustains in part the agency’s final determi-
nation and remands in part for further proceedings.]
Dated: May 31, 2024
Timothy C. Brightbill and Laura El-Sabaawi, Wiley
Rein LLP, Washington, DC, on the papers for Plaintiff.
Brian M. Boynton, Principal Deputy Assistant Attor-
ney General; Patricia M. McCarthy, Director; Tara K.
Hogan, Assistant Director; and Kristin E. Olson, Trial
Attorney, Commercial Litigation Branch, Civil
Ct. No. 22-00152 Page 2
Division, U.S. Department of Justice, Washington,
DC, on the papers for Defendant. Of counsel for De-
fendant was Brishailah Brown, Attorney, Office of the
Chief Counsel for Trade Enforcement and Compliance,
U.S. Department of Commerce, Washington, DC.
Ned H. Marshak, Dharmendra N. Choudhary, and
Jordan C. Kahn, Grunfeld, Desiderio, Lebowitz, Sil-
verman & Klestadt LLP, New York, NY, and Washing-
ton, DC, on the papers for Defendant-Intervenor.
Baker, Judge: In this case, domestic manufacturers
challenge the Department of Commerce’s final deter-
mination following an antidumping investigation into
“mobile access equipment”—peripatetic lifting ma-
chines such as one might see used in large home im-
provement stores or factories—imported from China.
For reasons explained below, the court sustains the
agency’s determination in part and remands for recon-
sideration of certain issues.
I
At the request of the Coalition of American Manu-
facturers of Mobile Access Equipment, Appx1176,
Commerce opened an antidumping investigation cov-
ering the second half of 2020. 86 Fed. Reg. 15,922;
Appx6778–6784. The Department selected as manda-
tory respondents the two largest Chinese exporters or
producers during the period of investigation, Lingong
Group Jinan Heavy Machinery Co., Ltd. (Jinan), and
Ct. No. 22-00152 Page 3
Zhejiang Dingli Machinery Co., Ltd. (Dingli).
Appx1001–1002.
Commerce found that dumping was occurring.
Appx1035. After the International Trade Commission
determined that these imports injure domestic indus-
try, the former issued an antidumping order. 87 Fed.
Reg. 22,190, 22,190.
II
Invoking jurisdiction conferred by 28 U.S.C.
§ 1581(c), the Coalition sued under 19 U.S.C.
§§ 1516a(a)(2)(A)(i)(II) and (a)(2)(B)(i) to challenge
Commerce’s final determination. See ECF 8. After
Dingli intervened on the side of the government, ECF
16, the Coalition moved for judgment on the agency
record. ECF 55. The government (ECF 59) and the
company (ECF 53) opposed. The Coalition replied.
ECF 57. The court decides the motion on the papers.
In § 1516a(a)(2) actions, “[t]he court shall hold un-
lawful any determination, finding, or conclusion 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). That is, the question is
not whether the court would have reached the same
conclusion on the same record—rather, it is whether
the administrative record as a whole permits Com-
merce’s conclusion.
Ct. No. 22-00152 Page 4
Substantial evidence has been defined as more
than a mere scintilla, as such relevant evidence
as a reasonable mind might accept as adequate
to support a conclusion. To determine if substan-
tial evidence exists, we review the record as a
whole, including evidence that supports as well
as evidence that fairly detracts from the sub-
stantiality of the evidence.
Nippon Steel Corp. v. United States, 337 F.3d 1373,
1379 (Fed. Cir. 2003) (cleaned up); see also SSIH
Equip. S.A. v. U.S. Int’l Trade Comm’n, 718 F.2d 365,
382 (Fed. Cir. 1983) (if Commerce makes a choice be-
tween “two fairly conflicting views,” the court may not
substitute its judgment even if its view would have
been different “had the matter been before it de novo”)
(quoting Universal Camera Corp. v. NLRB, 340 U.S.
474, 488 (1951)).
III
A
The Coalition challenges the Department’s surro-
gate value selections for Dingli’s ocean-shipping costs,
steel inputs, and drive motor inputs. 1 The court con-
siders each in turn.
1 Because China has a nonmarket economy, in antidump-
ing cases Commerce calculates the costs of producing goods
in that country and shipping them to the United States
Ct. No. 22-00152 Page 5
1
Commerce requested facts and figures to value
Dingli’s cost of shipping cargo by sea from China to the
United States. The company submitted data from Des-
cartes, Freightos, and Drewry, Appx6908–6913,
Appx7402–7465, while the Coalition provided infor-
mation from Maersk, Appx3718–3732. The Depart-
ment observed that in weighing this evidence, its pol-
icy is to select values that are “publicly available, prod-
uct-specific, representative of a broad market average,
. . . and contemporaneous with the [period of investi-
gation] under consideration.” Appx1042 (emphasis in
original). Weighing those factors, it selected the Des-
cartes, Freightos, and Drewry material. Appx1042–
1047.
Commerce provided several reasons for this choice.
Most importantly, the Coalition designated its Maersk
data as business proprietary information (BPI),
Appx1043, but Dingli placed information from three
sources on the public record, Appx1042–1043. 2
using analogous market-economy costs. See Hung Vuong
Corp. v. United States, 483 F. Supp. 3d 1321, 1339 (CIT
2020) (describing this process).
2 In response to the Coalition’s claim that it was forced to
designate its Maersk data as proprietary because Dingli
had so designated its shipping routes, the Department ex-
plained that it wasn’t clear why the former “treated the en-
tirety of the Maersk ocean freight data as BPI rather than
simply [so] treating the shipping routes.” Appx1043. Had
Ct. No. 22-00152 Page 6
Moreover, the Coalition’s Maersk data were based on
“price quotes . . ., which are not data [the Department]
prefers to use.” Appx1044. In contrast, “the Descartes
data for ocean freight charges represent actual, con-
summated transactions.” Id. Further, and again un-
like the Descartes, Freightos, and Drewry price
quotes, the Maersk data were not “[p]ublicly available,
published prices,” Appx1043–1044, meaning they
could not be obtained except through a private inquiry.
Addressing the Coalition’s contention that the
Maersk data were more specific, i.e., they more closely
resembled Dingli’s ocean freight costs, the Depart-
ment opined that the Descartes, Drewry, and
Freightos information reflected routes used by both
Dingli and Jinan, Appx1043, and that freight carried
by both Maersk and Descartes covered “a broad class
of merchandise that do[es] not specifically pertain to
mobile access equipment or subassemblies thereof.”
Appx1044. Although the Drewry and Freightos data
did “not specify the precise types of commodities being
shipped,” id., their rates appeared to be “representa-
tive of, and equally applicable to, all types of merchan-
dise,” id.the Coalition only treated the routes “as BPI, the ocean
freight rates could have been considered because there is
no presumption that the shipping routes referenced in
Maersk’s ocean freight rates are necessarily identical to
those used by respondents.” Id.Ct. No. 22-00152 Page 7
The Coalition attacks these findings on several
grounds:
The Agency Preference for Public Data
The Coalition argues that the Department improp-
erly accepted Dingli’s designation of its ocean freight
routes as proprietary. ECF 55, at 27. According to the
Coalition, this forced it to similarly denominate its
Maersk shipping data to avoid breaching the agency’s
protective order. Id. at 27–28.
The government does not defend Commerce’s ac-
ceptance of Dingli’s BPI designation of ocean freight
routes, instead arguing that regardless of whether the
company erred in so doing, the agency prefers using
public rather than confidential data. See ECF 59,
at 20. For its part, the company does not justify char-
acterizing its sea lanes as proprietary. Rather, it con-
tends—echoing the Department’s reasoning, see above
note 2—that the Coalition only has itself to blame for
erroneously denominating the Maersk shipping rates
as BPI when Dingli only so labeled its routes. ECF 53,
at 5.
As neither the government nor Dingli defends the
latter’s BPI designation of its routes, the court re-
mands for the agency to explain why such characteri-
zation was permissible under 19 C.F.R. § 351.105(c).
Insofar as the Department finds that the company
erred, the former must direct the latter to withdraw
Ct. No. 22-00152 Page 8
its designation. See 19 U.S.C. § 1677f(b)(2). 3 If Dingli
declines, then the agency must return the submission
and allow the company to proffer “other material.” Id.
On the other hand, if the Department finds that
Dingli properly designated its shipping routes as pro-
prietary, Commerce must then advise the Coalition
that its corresponding designation of “ocean freight
rates” was—as explained in the agency’s final deter-
mination—improper and ask for an “explanation.” Id.
If the agency is unpersuaded, it must allow the Coali-
tion to withdraw the designation. See id. What the
agency cannot do under § 1677f(b)(2) is what it did
here—accept an interested party’s BPI designation,
only later characterize that denomination as errone-
ous, and then cite that error as a reason not to use the
information because of the agency’s preference for us-
ing publicly available data. 4 Commerce has a statutory
3 The agency must also provide a corresponding oppor-
tunity for the Coalition to do the same as to the Maersk
data.
4 The Coalition does not contest Commerce’s “view” that the
agency “preference for publicly available information [is]
one that requires information to be placed on the public rec-
ord.” Jinko Solar Imp. & Exp. Co. v. United States, Consol.
Ct. No. 22-00219, Slip Op. 24-53, at 34–35, 2024 WL
2078453, at *13 (CIT May 1, 2024) (emphasis added). Far
from it—as explained below in connection with certain BPI
rebuttal material submitted by Dingli, the Coalition seeks
to enforce that preference. Cf. id. at 36–37, 2024 WL
2078453, at *14 (remanding for the agency to “consider or
Ct. No. 22-00152 Page 9
duty to allow an interested party to cure unwarranted
BPI designations. See 19 U.S.C. § 1677b(f)(2).
Price Quotes Versus Consummated Transactions
The Coalition argues that Commerce cited no evi-
dence to support its finding that Dingli’s Descartes
data reflect consummated transactions, unlike the
Maersk price quotes. See ECF 55, at 33–34. But Dingli
explain how publicly available information on the confiden-
tial record fails to promote accuracy, fairness, and predict-
ability”).
The court observes that it appears the agency’s preference
for non-BPI data is based on the interplay between three
regulations. One authorizes interested parties to submit
“factual information”—defined by another as “[p]ublicly
available information,” 19 C.F.R. § 351.102(b)(21)(iii)—“to
value factors of production under § 351.408(c),” i.e., in non-
market-economy country cases, id. § 351.301(c)(3)(i). A
third, in turn, explains that “[t]here are four categories of
information in an antidumping or countervailing duty pro-
ceeding,” id. § 351.105(a), two of which are “public” and
“[BPI],” id. The former “is information that may be made
available to the public, whereas [the latter] may be dis-
closed (if at all) only to authorized applicants under an [ad-
ministrative protective order].” Id. Putting all this to-
gether, the Department requires interested parties to sub-
mit non-BPI data to value the factors of production in non-
market-economy cases. The court reserves for another day
whether that requirement conflicts with the statute, which
directs—subject to an exception not relevant here—that in
such cases the Department’s valuation of those factors
“shall be based on the best available information . . . .” 19
U.S.C. § 1677b(c)(1) (emphasis added).
Ct. No. 22-00152 Page 10
points to a certain code (the “Transshipment Local In-
structions”) which it asserts “establishes that all Des-
cartes price data represent actual transactions on
those dates.” ECF 53, at 8. The Coalition’s failure to
confront this point on reply leads the court to infer that
substantial evidence supports the Department’s find-
ing, even if the agency did not cite that evidence.
Are the Maersk Data Public?
The Coalition objects to Commerce’s characteriza-
tion of the Maersk information as not “[p]ublicly avail-
able, published prices.” ECF 55, at 29–30 (quoting
Appx1044). Neither the government nor Dingli seri-
ously disputes this point, with the latter reduced to
complaining that the Coalition failed “to establish how
Maersk data can be publicly accessed.” ECF 53, at 5–
6. On reply, however, the Coalition observes that the
Department “has acknowledged the public nature of
the Maersk data many times” and cites two such ex-
amples. See ECF 57, at 6–7. 5 In view of Commerce’s
past pronouncements bearing directly on the question,
the court remands so the agency can reconcile its find-
ing with those previous determinations.
5 Consistent with Commerce’s previous acknowledge-
ments, the court observes that the Maersk website pro-
vides shipping price quotes to the public. See
https://www.maersk.com/onlinequote/standard.
Ct. No. 22-00152 Page 11
Specificity
The Coalition argues its Maersk data were more re-
flective of Dingli’s ocean freight costs than the Des-
cartes, Freightos, and Drewry information used by
Commerce. According to the Coalition, the former data
were limited to the sea route (to the U.S. West Coast)
Dingli used for the overwhelming majority of its ex-
ports, see ECF 54, at 24, but the latter included routes
for both the U.S. East and West Coasts, see ECF 55,
at 24–25.
Commerce explained that the Descartes, Freightos,
and Drewry data replicated not only Dingli’s routes,
but Jinan’s as well, Appx1043—a non sequitur, be-
cause the Department was calculating just the for-
mer’s ocean shipping costs. The government repeats
that error, ECF 59, at 24, and further observes that
Dingli shipped to both coasts, id. at 22–23, but does
not acknowledge that the company’s exports to the
East Coast were de minimis. Dingli, to its credit,
acknowledges that fact, see ECF 53, at 3–4, but argues
that there is no administrative or judicial precedent
requiring the agency to weigh the “number of ship-
ments for each port combination used,” id.
The lack of precedent, however, is not dispositive
because the relevant question is whether Commerce’s
specificity determination is reasonable. And “what is
reasonable depends on the context.” United States v.
R. Enters., Inc., 498 U.S. 292, 299 (1991) (quoting New
Jersey v. T.L.O., 469 U.S. 325, 337 (1985)). Dingli ships
Ct. No. 22-00152 Page 12
almost all its lifting machines by sea to the U.S. West
Coast, with only a small fraction going to the Port of
New York. 6 Elementary geography dictates that, all
other things being equal, it’s cheaper to transport
cargo by sea from China to the former rather than the
latter. 7 At least as to Dingli’s ocean shipping routes,
the Department’s failure to recognize that the Des-
cartes, Freightos, and Drewry data are less specific
than the Maersk information is unreasonable.
The Coalition’s second specificity challenge is to
Commerce’s finding that the Descartes, Freightos, and
Drewry rates were for cargo essentially comparable to
the goods used for the Maersk price quotes. The Coali-
tion argues that the Department’s decision is unrea-
sonable because its Maersk data involved machinery
parts, see ECF 54, at 25, that more closely resembled
Dingli’s lifting equipment than the array of both me-
chanical parts and non-machinery goods reflected in
6 Notwithstanding that Dingli’s shipping routes are pur-
portedly BPI, its public brief discloses that the company
“actually used the Shanghai–New York route.” See ECF 53,
at 3.
7 For example, it’s 5398 nautical miles from Shanghai to
San Francisco, to take one West Coast port. A vessel steam-
ing at 10 knots would take 22 days to transit that distance.
From Shanghai to New York at the same speed would take
44 days via the Panama Canal (10,582 nautical miles), 51
days via the Suez Canal (12,370 nautical miles), 60 days
via the Cape of Good Hope (14,468 nautical miles), and 69
days via the Strait of Magellan (16,684 nautical miles). See
https://Sea-Distances.org.
Ct. No. 22-00152 Page 13
the Descartes data, including furniture, plastic bags,
fabric, paper cups, and sofa covers, see ECF 55, at 25.
The court disagrees. Commerce weighed this evi-
dence and explained that neither the Coalition’s data
nor Dingli’s “specifically pertain[ed] to mobile access
equipment or subassemblies thereof.” Appx1043. Both
covered a “broad class of merchandise” that included
various mechanical parts. Id. That Dingli’s data in-
cluded non-mechanical products had to be weighed
against the fact that neither data set replicated the
mobile access equipment. Unlike the Department’s
treatment of shipping routes, there’s nothing unrea-
sonable in how the agency weighed the competing con-
siderations as to cargo specificity.
* * *
Commerce’s choice of data to value Dingli’s ocean
freight costs is a mixed bag. Certain aspects of that de-
cision are supported by substantial evidence, but oth-
ers are not. It’s not clear the agency would have
reached the same result had it properly analyzed the
record, so the court remands for reconsideration.
Adjustments to Descartes Data (If Selected Again)
Finally, Commerce rejected the Coalition’s asser-
tion that “Dingli improperly excluded certain charges
in its reported Descartes freight data when shipping
goods to the United States.” Appx1046. The Depart-
ment found that the Descartes rates “are clearly
Ct. No. 22-00152 Page 14
identified as only ocean freight charges,” which “indi-
cates that the rates do not cover non-ocean freight
charges, such as brokerage and handling fees, U.S. in-
land freight charges (i.e., destination delivery
charges)[,] or truck-freight services.” Appx1046–1047.
It added that those sorts of costs “are included in the
brokerage and handling [surrogate value]” based on
World Bank data. Appx1047.
The Coalition now raises a contingent argument
that, if Commerce justifiably selected Dingli’s prof-
fered shipping data, the Department needed to “adjust
it” by adding certain fees to the rate so that it would
more closely match the company’s “experience” during
the period of investigation. ECF 55, at 34. The Coali-
tion asserts that Dingli omitted certain charges that a
customer would have to pay when using Descartes to
transport goods by sea—including a “bunker adjust-
ment factor,” a “destination delivery charge,” and local
port fees—and contends that those charges should
have been part of the freight rates. Id. at 34–35. It also
argues that the “other excluded charges . . . ‘are all
part of the price that a customer would have to pay
and are separate from brokerage and handling ex-
penses.’୻” Id. at 35 (quoting Appx6534). Lastly, it main-
tains that Commerce’s finding that the World Bank
data included these amounts in brokerage and han-
dling expenses “does not appear to be true” because the
“brokerage and handling” information the Department
used had a narrow scope. Id. at 36–37 (citing
Appx7143–7266, Appx6777(e)–6777(f)).
Ct. No. 22-00152 Page 15
Neither the agency discussion nor the parties’ ar-
guments allow the court to resolve this issue. Insofar
as the court can discern from the pages cited by Com-
merce and the parties in their briefing, it’s impossible
to tell what the “brokerage and handling” fees in-
cluded or excluded. The Department cited its surro-
gate value memorandum prepared before the prelimi-
nary determination. See Appx1047 (citing
Appx21434–21446). The text of that memorandum
contains no explanation of this issue, and the attach-
ment simply contains three different line items for
“brokerage & handling” with no detail about what
those amounts represent, although it does break out
“truck freight” separately from “ocean freight.”
Appx21446(e)–21446(f). The Coalition notes that the
page in the record showing what the “brokerage and
handling” fees include mentions only two compo-
nents—“border compliance” and “documentary compli-
ance.” ECF 55, at 37 (citing, inter alia, Appx7146). The
government essentially just repeats the agency conclu-
sion that the “brokerage and handling” value includes
the charges, see ECF 59, at 27–28 (citing Appx1047,
Appx21438), and says the data “satisfied Commerce’s
surrogate value criteria,” id. at 28–29. Dingli contends
the Coalition did not show how the various charges are
not part of “brokerage and handling.” See ECF 53,
at 8–9.
The problem the court has, for purposes of substan-
tial evidence review, is that the Department’s decision
appears to assume what the brokerage and handling
Ct. No. 22-00152 Page 16
surrogate value includes. 8 The court has “no basis for
thinking that [the assumption] is a matter of common
knowledge or otherwise can be presumed true without
evidence.” CS Wind Vietnam Co. v. United States, 832
F.3d 1367, 1374 (Fed. Cir. 2016); OCP S.A. v. United
States, 658 F. Supp. 3d 1297, 1324 (CIT 2023) (noting
that agency discretion “does not include the ability to
assume facts for which there is insufficient evidence”);
cf. DyStar Textilfarben GmbH & Co. Deutschland KG
v. C.H. Patrick Co., 464 F.3d 1356, 1367 (Fed. Cir.
2006) (“[A]ssumptions about common sense cannot
substitute for evidence thereof . . . .”) (emphasis in orig-
inal). The court therefore remands so the agency—in-
sofar as it once again chooses to use the Descartes in-
formation—can point to the specific data in the record
on which it relies to support its conclusion about what
costs the brokerage and handling surrogate value in-
cludes.
2
The Coalition challenges Commerce’s use of certain
Harmonized Tariff Schedule (HTS) subheadings to
value “minor fabricated steel components.” 9 It argues
8 The court has no difficulty accepting the agency’s conclu-
sion about inland freight charges and truck freight be-
cause, as noted above, the cited pages break those out sep-
arately from ocean freight.
9 As used by the Department and the parties, this term re-
fers to 18 various inputs. See Appx1071; ECF 55, at 39 &
Ct. No. 22-00152 Page 17
that these subheadings “relate to raw steel inputs (in
other words, plain steel) rather than manufactured
products and thus did not accurately reflect the sub-
stantial further processing that Dingli’s steel compo-
nents had undergone,” such that the Department un-
dervalued the inputs and understated the company’s
dumping margin. ECF 55, at 39–40.
Commerce described the Coalition’s theory as being
that Dingli’s inputs are “fabricated steel components
that the company’s suppliers have already fabricated
into components for incorporation into finished mobile
access equipment goods.” Appx1070. The Coalition
contended that the appropriate HTS subheading for
such components was therefore 7326.90.90.
Appx1070–1071. Dingli responded that it purchased
“minimally processed steel plates/sheet” from its sup-
pliers such that the “essential nature” did not change
from the primary steel material. Appx1071. The De-
partment agreed with the company and said the Coa-
lition “did not provide any evidence to support its alle-
gation” that the former misrepresented the degree of
processing its suppliers performed, while Dingli pro-
duced letters from various suppliers describing pro-
duction of the components. Appx1072.
The Coalition now argues that Commerce erred by
treating “numerous manufactured parts and [mobile
n.5; ECF 59, at 29 & n.3 (citing Appx21446 for a full list of
what the 18 inputs are).
Ct. No. 22-00152 Page 18
access equipment] components as plain steel.” ECF 55,
at 40. It asserts that the evidence shows that Dingli’s
suppliers sold components, not plain steel, id. at 40–
41, and that the Department erred by valuing all the
inputs using HTS subheadings for plain steel fresh
from a mill, id. at 43–44. It also emphasizes that the
agency contradicted itself by acknowledging record ev-
idence that Dingli’s suppliers “may do minimal work
on a particular part . . . or in some cases, they may do
more in-depth fabrication or processing,” id. at 45
(quoting Appx1072), but still concluding that HTS sub-
headings for raw steel that state that the steel must
be “not further worked” are somehow appropriate, id.
(citing Appx1070).
Rather than respond to the Coalition’s arguments,
the government asserts that Commerce’s conclusion
was reasonable because it considered and accepted
Dingli’s explanation. ECF 59, at 29. Acknowledging
that “in certain instances, [Dingli’s suppliers] may do
some minimal work on certain fabricated steel compo-
nents,” id. at 30 (citing Appx3289–3321), 10 the govern-
ment argues that these letters are “part of the infor-
mation that Commerce considered” and, apparently,
contends that fact makes the Department’s conclusion
10 See also id. (quoting a supplier letter stating, “We cut the
plates using a laser cutting machine to specific shapes and
sizes. We also bend some plates to specific angles using a
bending machine to meet the drawing specifications. As re-
quired, holes are drilled into several pieces of steel plates.”)
(quoting Appx1072, Appx3416).
Ct. No. 22-00152 Page 19
reasonable, id. at 30–31 (citing Appx1071), although it
offers nothing to support that implicit conclusion.
For its part, Dingli echoes Commerce’s conclusion
that the Coalition failed to provide any evidence.
ECF 53, at 21 (quoting Appx1072). But the company
block-quotes the following sentence (among others)
from the final determination:
Although the letters from certain suppliers pro-
vided on the record indicate a wide range of fab-
rication that may be involved, depending on the
input and specification requirements, record ev-
idence demonstrates that Dingli’s suppliers may
do minimal work on a particular part, such as
cutting, bending, or punching holes[,] or in some
cases, they may do more in-depth fabrication or
processing.
ECF 53, at 21 (quoting Appx1072) (emphasis added).
With agency findings like that, the Coalition didn’t
need any evidence.
Commerce’s determination is internally incon-
sistent. While it said the Coalition failed to substanti-
ate its allegation that Dingli’s suppliers provide fabri-
cated components rather than plate steel, it turned
around and acknowledged the company’s evidence
that some suppliers “do more in-depth fabrication or
processing.” Appx1072. These contradictions mean
that the Department failed to support its conclusion
Ct. No. 22-00152 Page 20
with substantial evidence, so the court remands for re-
consideration.
3
Two of Dingli’s inputs are devices called “Drive Mo-
tor 1” and “Drive Motor 2.” Before Commerce, the com-
pany offered evidence that because the latter acts
solely as a motor, while the former does that and also
functions as a generator via regenerative breaking, the
two devices are not interchangeable. Appx1099. The
Department accepted that characterization and used
different HTS subheadings to value each input. See
Appx1102 (“[B]ecause HTS subheading 8501.32 en-
compasses both of the applicable HTS eight-digit sub-
headings (8501.32.10—electric motor and
8501.32.20—generator), . . . HTS subheading 8501.32
is the most representative and accurate [average unit
value] for this input.”).
The Coalition asserts that Commerce’s valuation is
not supported by substantial evidence, and is contrary
to law, because it overlooked that Drive Motor 1’s pri-
mary function is as a motor. ECF 55, at 49 (citing
Appx6571). The Coalition considers that fact essential
because, when classifying “items that are composite
items or have more than one function, the primary
function of the items is the controlling function in
terms of tariff classification.” Id. at 50.
Although both the Coalition and the government
assert various arguments based on tariff classification
Ct. No. 22-00152 Page 21
principles and the General Rules of Interpretation,11
they overlook the essential point—persuasively made
by Dingli, see ECF 53, at 18–19—that this is an anti-
dumping case, “not a customs classification case.”
Downhole Pipe & Equip., L.P. v. United States, 776
F.3d 1369, 1379 (Fed. Cir. 2015) (emphasis in origi-
nal). Consequently, rather than “engage in a classifi-
cation analysis to determine which [HTS] subheading
contained [the relevant input],” id., Commerce “was
required to determine which of the competing sub-
headings constituted the best available information
for valuing [that] input,” id. In classification cases,
Customs and Border Protection’s role is to determine
how to classify merchandise for tariff purposes, while
in antidumping cases the Department’s job is to deter-
mine the duty needed to remedy the effects of less-
than-fair-value sales of foreign merchandise in the
United States. SolarWorld Americas, Inc. v. United
States, 910 F.3d 1216, 1224 (Fed. Cir. 2018).
To be sure, the Coalition—while not addressing
Dingli’s citation of SolarWorld—claims that its point
is not that the Department and Customs are “bound
by the same objectives.” ECF 57, at 29. Rather, it ar-
gues, “the primary function of Dingli’s merchandise
11 “The proper classification of merchandise entering the
United States is directed by the General Rules of Interpre-
tation . . . of the [Harmonized Tariff Schedule of the United
States] and the Additional United States Rules of Interpre-
tation.” Orlando Food Corp. v. United States, 140 F.3d
1437, 1439 (Fed. Cir. 1998).
Ct. No. 22-00152 Page 22
was a valid and important consideration regarding the
appropriate [surrogate value] selection. Commerce
was required to address this argument, and it failed to
do so.” Id. at 29–30. The court disagrees given the Fed-
eral Circuit’s clear holding that the Department need
not follow classification principles.
The agency explained that the record shows that
Drive Motors 1 and 2 are different devices with differ-
ent functionality—a point no party disputes—and con-
cluded that (1) it is therefore appropriate to use differ-
ent HTS subheadings to value them and (2) 8501.32
encompasses subheadings covering both (undisputed)
functions. Appx1102. The Coalition in effect asks the
court to reweigh findings. “This court’s duty,” however,
“is not to evaluate whether the information Commerce
used was the best available, but rather whether a rea-
sonable mind could conclude that [it] chose the best
available information.” Downhole Pipe, 776 F.3d
at 1379 (cleaned up). Here, a reasonable mind could so
conclude that the Department chose the best available
information.
B
Commerce’s regulations govern when interested
parties may submit certain “factual information”12
during an administrative proceeding. See 19 C.F.R.
12 The applicable definition of “factual information” varies
with the relevant context. See 19 C.F.R.
§ 351.102(b)(21)(i)–(v).
Ct. No. 22-00152 Page 23
§ 351.301. The Coalition challenges the Department’s
acceptance of certain such information from Dingli. 13
1
In an antidumping investigation, an interested
party may submit “factual information to value factors
of production under § 351.408(c).” 14 19 C.F.R.
§ 351.301(c)(3)(i); see also id. § 351.102(b)(21)(iii) (de-
fining “factual information” as including “[p]ublicly
available information submitted to value factors [of
production] under § 351.408(c)”). Other interested par-
ties in turn may tender “publicly available information
to rebut, clarify, or correct such factual information
submitted pursuant to § 351.408(c).”
Id. § 351.301(c)(3)(iv) (emphasis added); see also above
note 4 (explaining the regulatory basis for Commerce’s
preference for using non-BPI information to value the
factors of production in nonmarket-economy cases).
Dingli submitted BPI mill test certificates
(Appx3827–3933) to rebut data submitted by the Coa-
lition to value certain factors of production. Over the
13 The Coalition’s opening brief identifies the universe of
Dingli’s factual submissions ostensibly at issue, see
ECF 55, at 53 n.10, but then only addresses certain of those
submissions in its ensuing discussion. The court finds the
Coalition’s argument waived as to submissions not so ad-
dressed.
14 Section 351.408(c) in turn addresses valuation of factors
of production for use in calculating normal value of imports
from nonmarket-economy countries.
Ct. No. 22-00152 Page 24
latter’s objection that to do so violated
§ 351.301(c)(3)(iv), Commerce accepted the submis-
sion, reasoning that it was the only means available to
the company to “rebut, clarify, or correct the [surro-
gate value] information on the record.” Appx1058.
Moreover, its “purpose” was “to support information
. . . already on the record.” Id. The Department added
that the material did not prejudice the Coalition.
Appx1058–1059. Not only was the latter able to use it,
Appx1058, it did not “provide any pre-verification com-
ments” objecting to the submission, Appx1059.
The Coalition argues that neither reason offered by
the Department for accepting Dingli’s non-public re-
buttal information excuses disregarding the regula-
tion’s plain text. ECF 55, at 56–57. As to prejudice, it
asserts that “there was no way for either the agency or
[the Coalition] to corroborate or impeach this infor-
mation.” Id. at 56.
Although the government doesn’t dispute that
Commerce’s acceptance of Dingli’s BPI submission vi-
olated the Department’s regulation, it argues that the
agency provided a reasonable justification for doing so.
ECF 59, at 44–45. It also emphasizes Commerce’s find-
ing that the Coalition was not prejudiced. Id. at 46.
For its part, Dingli asserts that the regulation does
not expressly bar the submission of proprietary mate-
rial, ECF 53, at 28, and that in any event the Coalition
suffered no prejudice because it challenged the com-
pany’s mill test certificates in subsequent briefing, id.
Ct. No. 22-00152 Page 25
at 27. Dingli emphasizes—echoing the Department’s
finding—that by neglecting to provide pre-verification
comments, the Coalition “forewent an opportunity to
have Commerce assess any concerns” regarding the
company’s BPI certificates. Id. at 27–28.
As the government implicitly concedes, Commerce
plainly violated § 351.301(c)(3)(iv) by accepting
Dingli’s non-public surrogate value rebuttal infor-
mation. 15 Even so, that’s not the end of the inquiry.
The “general principle” is “that ‘[i]t is always within
the discretion of . . . an administrative agency to relax
or modify its procedural rules adopted for the orderly
transaction of business before it when in a given case
the ends of justice require it.’୻” PAM S.p.A. v. United
15 The company’s contention that the Department permis-
sibly accepted proprietary material because the regulation
does not expressly prohibit it is wrong. Under the familiar
expressio unius canon, § 351.301(c)(3)(iv)’s authorization
for an interested party to submit “publicly available infor-
mation” for rebuttal purposes necessarily implies that
other defined types of information, such as BPI, are ex-
cluded. See 19 C.F.R. § 351.105(a) (“There are four catego-
ries of information in an antidumping or countervailing
duty proceeding: public, business proprietary, privileged,
and classified.”). As Scalia and Garner explain, “[w]e en-
counter” this canon “frequently in our daily lives. When a
car dealer promises a low financing rate to ‘purchasers
with good credit,’ it is entirely clear that the rate is not
available to purchasers with spotty credit.” Reading Law:
The Interpretation of Legal Texts 107 (2012) (emphasis in
original).
Ct. No. 22-00152 Page 26
States, 463 F.3d 1345, 1348 (Fed. Cir. 2006) (brackets
in original) (quoting Am. Farm Lines v. Black Ball
Freight Serv., 397 U.S. 532, 538–39 (1970)). If an
agency articulates a reasonable justification for de-
parting from its regulation, such a departure “is only
rescindable ‘upon a showing of substantial prejudice.’୻”
Id. (quoting Am. Farm Lines, 397 U.S. at 539).
Commerce provided a reasonable explanation for
accepting Dingli’s proprietary data here—it was the
only means available to the company to “rebut, clarify,
or correct the [surrogate value] information on the rec-
ord,” Appx1058, and “the purpose” of the submission
was “to support information . . . already on the record,”
id. 16 And although the Coalition claims that it suffered
prejudice because it could not corroborate Dingli’s in-
formation, the Department found that the former
raised no such concern in its pre-verification com-
ments. 17 Appx1059. Because this finding is not dis-
puted, the court holds that the Coalition has not shown
substantial prejudice from the agency’s acceptance of
Dingli’s proprietary material.
16 Indeed, the Department was arguably required under
19 U.S.C. § 1677b(c)(1) to consider the company’s BPI re-
buttal submission. See above note 4.
17 Presumably the Coalition could have requested that
Commerce test Dingli’s proprietary submission at verifica-
tion.
Ct. No. 22-00152 Page 27
2
Along with submitting certain BPI mill test certifi-
cates to rebut data submitted by the Coalition as de-
scribed above, the company also submitted new infor-
mation on its drive motor and cast-iron billet inputs.
Appx3934–4400. 18 The Coalition contends that all
these submissions were untimely—and thus should
have been rejected by the agency—because they were
responsive to Commerce’s questionnaire. 19 ECF 55,
at 59–60.
The problem with this argument is that the Coali-
tion does not dispute—apart from the BPI aspect dis-
cussed above—Commerce’s determination that Dingli
properly and timely submitted its data as to mill test
certificates, drive motor inputs, and cast-iron billets as
rebuttal information under § 351.301(c)(3)(iv). Indeed,
as detailed above, the Coalition argues—and the court
agrees, as also explained above—that
§ 351.301(c)(3)(iv)’s prohibition on submitting proprie-
tary material applies here.
18 The Coalition’s brief identifies the asserted untimely in-
formation about mill test certificates, drive motor inputs,
and iron billet inputs as encompassing Appx3828–4400.
ECF 55, at 59.
19 The 30-day deadline for Dingli to answer the question-
naire, see 19 C.F.R. § 351.301(c)(1)(i), had long since passed
by the time the company submitted its surrogate value re-
buttal containing the factual information in question.
Ct. No. 22-00152 Page 28
The Coalition can’t have it both ways—either
§ 351.301(c)(3)(iv) applies (as it contends for purposes
of objecting to the portion of Dingli’s rebuttal presen-
tation that was BPI), or it doesn’t. If the regulation ap-
plies, then it doesn’t matter whether the company’s
timely submission was also responsive to Commerce’s
questionnaire (and therefore untimely for purposes of
that document). The Coalition offers no reason why in-
formation responsive to a Commerce questionnaire is
disqualified from presentation under
§ 351.301(c)(3)(iv). 20 The court accordingly concludes
that the Department properly accepted Dingli’s timely
submission under that regulation to rebut data sub-
mitted by the Coalition.
* * *
The court sustains in part Commerce’s decision and
remands in part for further proceedings consistent
with this opinion.
Dated: May 31, 2024 /s/ M. Miller Baker
New York, NY M. Miller Baker, Judge
20 The court assumes, but does not decide, that Dingli’s re-
buttal information was so responsive.