Elkay Mfg. Co. v. United States

Slip Op. 15-33
UNITED STATES COURT OF INTERNATIONAL TRADE
ELKAY MANUFACTURING
COMPANY,
Plaintiff,
v.
UNITED STATES, Before: Timothy C. Stanceu, Chief Judge
Defendant, Consol. Court No. 13-00176
and
GUANGDONG DONGYUAN
KITCHENWARE INDUSTRIAL
COMPANY, LTD.,
Defendant-intervenor.
OPINION AND ORDER
[Denying a motion for reconsideration of the court’s decision remanding a determination by the
U.S. Department of Commerce in an antidumping duty investigation]
Dated: April 20, 2015
Joseph W. Dorn and P. Lee Smith, King & Spalding LLP, of Washington D.C., for
plaintiff and consolidated defendant-intervenor Elkay Manufacturing Company.
Gregory S. Menegaz and J. Kevin Horgan, DeKieffer & Horgan, PLLC, of Washington
D.C., for consolidated plaintiff and defendant-intervenor Guangdong Dongyuan Kitchenware
Industrial Company, Ltd.
Patricia M. McCarthy, Assistant Director, and Richard P. Schroeder, Trial Attorney,
Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington D.C.,
for defendant United States. With them on the brief were Joyce R. Branda, Acting Assistant
Attorney General, and Jeanne E. Davidson, Director. Of counsel on the brief was Whitney M.
Rolig, Attorney-International, Office of the Chief Counsel for Trade Enforcement and
Compliance, U.S. Department of Commerce.
Consol. Court No. 13-00176 Page 2
Stanceu, Chief Judge: Guangdong Dongyuan Kitchenware Industrial Company, Ltd.
(“Dongyuan”), defendant-intervenor and consolidated plaintiff in this case, moves for
reconsideration of the court’s December 22, 2014 decision remanding a determination of the
International Trade Administration, U.S. Department of Commerce (“Commerce” or the
“Department”) in an antidumping duty investigation. Consol. Pl. Guangdong Dongyuan
Kitchenware R. 59(a) Mot. for Reconsideration (Jan. 21, 2015), ECF No. 55 (“Dongyuan’s
Mot.”). See Elkay Mfg. Co. v. United States, 38 CIT __, 34 F. Supp. 3d 1369 (2014) (“Elkay”).
The court denies Dongyuan’s motion.
I. BACKGROUND
This case is a consolidation of challenges by Dongyuan, a producer/exporter of subject
merchandise and Elkay Manufacturing Company (“Elkay”), domestic producer and petitioner, to
the Department’s final determination (“Final Determination”) in the less-than-fair value
investigation of drawn stainless steel sinks (“subject merchandise”) from the People’s Republic
of China (“China” or the “PRC”). See Drawn Stainless Steel Sinks From the People’s Republic
of China: Investigation, Final Determination, 78 Fed. Reg. 13,019 (Int’l Trade Admin.
Feb. 26, 2013) (“Final Determination”); Drawn Stainless Steel Sinks from the People’s Republic
of China: Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty
Order, 78 Fed. Reg. 21,592 (Int’l Trade Admin. April 11, 2013) (“Order”). The court issued an
opinion and order on December 22, 2014 remanding the Final Determination to Commerce for
reconsideration. Elkay, 38 CIT at __, 34 F. Supp. 3d at 1370. The background of this case is set
forth in that opinion and order.
Dongyuan filed its Motion for Reconsideration on January 21, 2015, Dongyuan’s Mot. 1,
and defendant filed a brief in opposition on February 19, 2015, Def.’s Opp’n to Mot. for
Consol. Court No. 13-00176 Page 3
Reconsideration by Guangdong Dongyuan Kitchenware Industrial Co., Ltd. 1 (Feb. 19, 2015),
ECF No. 59 (“Def.’s Opp’n”). The proceeding for the filing of the remand determination is
ongoing.
II. DISCUSSION
USCIT Rule 59 authorizes a rehearing after a nonjury trial “for any reason for which a
rehearing has heretofore been granted in a suit in equity in federal court.” USCIT
R. 59(a)(1)(B). “A motion for rehearing is addressed to the sound discretion of the trial court,”
and the grant of such a motion “is appropriate where there is a fundamental or significant flaw in
the original proceeding.” Arthur J. Humphreys, Inc. v. United States, 973 F.2d 1554, 1560 (Fed.
Cir. 1992) (“Arthur J. Humphreys”). However, “[t]he purpose of a rehearing is not to relitigate.”
Id. Instead, “‘[t]he major grounds justifying reconsideration are an intervening change of
controlling law, the availability of new evidence, or the need to correct a clear error or prevent
manifest injustice.’” Royal Thai Gov’t v. United States, 30 CIT 1072, 1074,
441 F. Supp. 2d 1350, 1354 (2006) (citation omitted). For the reasons discussed below, the court
concludes that Dongyuan has not shown that the grant of its motion would be appropriate.
The court’s opinion and order in Elkay addressed two challenges to the Final
Determination: (1) Dongyuan’s challenge to the Department’s use of import data from Thailand
to determine a surrogate value for a factor of production (FOP), the cold-rolled stainless steel
coil that Dongyuan used as the primary material in producing subject merchandise; and
(2) Elkay’s challenge to the Department’s method of accounting for selling, general, and
administrative (“SG&A”) labor expenses in the normal value determinations for Dongyuan and
another individually-investigated producer/exporter. Elkay, 38 CIT at __, 34 F. Supp. 3d
at 1373-74, 1376. In response to Dongyuan’s challenge, Commerce requested a voluntary
Consol. Court No. 13-00176 Page 4
remand to place on the record additional data that would allow it to consider whether the Thai
import data Commerce used to determine a surrogate value for the steel coil input were
aberrational, which the court granted. Id. at __, 34 F. Supp. 3d at 1374, 1386. In response to the
second challenge, the court ordered Commerce to reconsider the method it used to account for
SG&A labor expenses in the normal value calculations and, as necessary, to revise the
antidumping duty margins for both the investigated and separate rate respondents. Id. at __,
34 F. Supp. 3d at 1375-76, 1386. In its Motion for Reconsideration, Dongyuan seeks rehearing
on both aspects of the court’s remand order.
A. Dongyuan’s Request for Reconsideration of the Court’s Remand Order Concerning
Surrogate Values for Cold-Rolled Stainless Steel Coil
In response to defendant’s request for a voluntary remand, the court ordered Commerce
to “reconsider[] the use of surrogate information from Thailand to value cold-rolled stainless
steel coil when determining the normal value of Dongyuan’s subject merchandise . . . .” Elkay,
38 CIT at __, 34 F. Supp. 3d at 1386. Defendant stated that certain data relevant to a surrogate
value determination for the stainless steel coil FOP were missing from the record and asked for
leave so that Commerce could reopen the record to include those data. Def.’s Resp. to Pl.’s Rule
56.2 Mot. for J. on the Agency R. 16 (Feb. 28, 2014), ECF No. 40 (“Def. Opp’n”). The court
ordered that “if Commerce places additional surrogate value data on the record on remand,
Commerce must provide parties to this litigation the opportunity to submit comments concerning
those data and the Department’s decision addressing the valuation of cold-rolled stainless steel
coil . . . .” Elkay, 38 CIT at __, 34 F. Supp. 3d at 1386.
Dongyuan requests that the court direct Commerce to make a specific finding that the
Thai import data are unreliable, issue an order vacating the opinion and order in Elkay, instruct
Commerce to “forego reliance on any Thai import statistics for cold-rolled steel inputs consumed
Consol. Court No. 13-00176 Page 5
by Dongyuan Kitchenware,” and further instruct Commerce to “to reconsider fully which part of
the extensive existent steel surrogate value data constitutes the ‘best available information’ on
the administrative record to value Dongyuan Kitchenware’s cold-rolled steel inputs.”
Dongyuan’s Mot. 21-22, Proposed Order. Dongyuan advances several reasons why the court
should do so.
Dongyuan argues, first, that Commerce had “multiple opportunities by letter, statute, and
regulation for the submission of the very data that the Department now suggests should be
added” and that Commerce should not be given additional opportunities “in the absence of
extraordinary circumstances (e.g., a fraud on the Department).” Dongyuan’s Mot. 3. This
argument is meritless. Reopening of the record upon remand ordinarily is a matter of agency
discretion, and Dongyuan cites no authority for its conclusion that the court, in this case, violated
an established law or binding precedent in allowing Commerce to reopen the record on remand.
See Essar Steel Ltd. v. United States, 678 F.3d 1268, 1278 (Fed. Cir. 2012) (“The decision to
reopen the record is best left to the agency . . . .”).
Dongyuan submits that the court’s decision granting Commerce the voluntary remand
and allowing reopening of the record was contrary to the statutory timelines set by Congress for
conducting an antidumping investigation. Dongyuan’s Mot. 3. The court does not find merit in
this argument. The remand proceeding is being conducted under the authority of this Court
pursuant to statutory provisions governing judicial review, see 19 U.S.C. § 1516a (2012);
28 U.S.C. § 2640(b) (2012), not the provisions governing the time limits for the agency’s
conducting of the investigation prior to the publication of the contested determination, see
19 U.S.C. § 1673b(b)(1)(A), (c)(1)(B) (2012). Nothing in the statute negates the Department’s
Consol. Court No. 13-00176 Page 6
authority, exercised under the Court’s supervision, to reopen an agency record and to reconsider
its prior decision pursuant to a remand conducted under the Court’s authority.1
Dongyuan also argues that reopening of the record to admit additional data is inconsistent
with the Department’s regulation, 19 C.F.R. § 351.301(c)(3)(1)(2012), which governed the date
by which surrogate value information was required to be submitted to the record.2 Dongyuan’s
Mot. 5. This argument fails because the cited regulation is not applicable here. The regulation
addressed the time limit for submission of information by parties for use in valuing factors of
production during an antidumping investigation, not during a judicial review proceeding.
Dongyuan argues that the court’s granting the voluntary remand request “constitutes a
manifest injustice.” Id. at 8. In support of this contention, Dongyuan maintains that its
“strenuous and diligent efforts to prepare and submit a winning case in the investigation have
been negated after the fact” and that Dongyuan “now faces a substantial new expense both in
1
This case is unlike Corus Staal BV v. United States, 29 CIT 777, 783, 387 F. Supp.
2d 1291, 1297 (2005), aff’d, 186 Fed. Appx. 997 (Fed. Cir. 2006) (“Corus Staal”), which
Guangdong Dongyuan Kitchenware Industrial Company, Ltd. (“Dongyuan”) cites in connection
with its argument on statutory time requirements for the conducting of an investigation. Consol.
Pl. Guangdong Dongyuan Kitchenware R. 59(a) Mot. for Reconsideration (Jan. 21, 2015), ECF
No. 55 (“Dongyuan’s Mot.”). In Corus Staal, the Court of International Trade (“CIT”) stated
that “[t]he Government must give due regard to finality and cannot simply ask for a do-over any
time it wishes.” Corus Staal, 29 CIT at 782-83, 387 F. Supp. 2d at 1296-97. Corus Staal is
neither precedential nor on point. In Corus Staal, the CIT denied the government’s request for a
remand where the U.S. Department of Commerce (“Commerce” or the “Department”) requested
the remand to correct an error alleged by a defendant-intervenor that had not filed an action
seeking relief and where Commerce provided only an undetailed assertion that there was an
error. Id. In this case, Commerce requested a remand in response to a specific challenge brought
by Dongyuan to the surrogate value for stainless steel coil.
2
At the time of the proceeding at issue in this case, the deadline in effect was forty days
following publication of the preliminary determination. Commerce later shortened the period for
submission by publication of a notice of amendment. See Dongyuan’s Mot. 5 n.4 (citing
Definition of Factual Information and Time Limits for Submission of Factual Information,
78 Fed. Reg. 21,246 (Int’l Trade Admin. Apr. 10, 2013).
Consol. Court No. 13-00176 Page 7
terms of an open-ended new investigation and in its ongoing involvement in the review segments
which it believes are unjustified in light of the lack of dumping during the investigation.” Id.
Dongyan objects, further, that petitioner Elkay “will have a second chance to develop the record”
after failing to do so during the agency proceeding. Id. at 8. Dongyuan also argues that the
court’s decision leaves “the discretion to ‘cure’ bad decisions solely with the agency” while
offering no similar opportunity to the parties. Id. at 3. The court rejects these arguments, which
do not negate the established principle that good faith requests by administrative agencies for
voluntary remands are, as a general matter, to be granted by reviewing courts. See, e.g. SKF
USA Inc. v. United States, 254 F.3d 1022, 1029 (Fed. Cir. 2001) (opining that “even if there are
no intervening events, the agency may request a remand (without confessing error) in order to
reconsider its previous position” and that “if the agency’s concern is substantial and legitimate, a
remand is usually appropriate”) (“SKF”). Dongyuan’s description of the court’s order as calling
for “an open-ended new investigation” is inaccurate because not all aspects of the Final
Determination are subject to remand. As to the Department’s determination of the steel coil
surrogate value (the aspect of the Final Determination that Dongyuan itself challenged),
Dongyuan and Elkay will have the same opportunity to comment upon any newly-submitted data
and to make arguments in support of or against the decision Commerce reaches upon remand in
valuing the FOP. See Elkay, 38 CIT at __, 34 F. Supp. 3d at 1386.
Dongyuan next submits that the arguments it made in support of its motion for judgment
on the agency record should have prevailed and thereby mooted the Department’s request for a
voluntary remand to obtain additional data for valuing the steel coil input. Dongyuan’s Mot. 9.
According to Dongyuan, “[t]he Department seeks to add the additional steel values to support the
reasonableness of the Thai values it selected in its final determination,” which Dongyuan
Consol. Court No. 13-00176 Page 8
characterizes as “not reliable, representative, or usable for purposes of the investigation.” Id.
Dongyuan adds that “it is not apparent that the Court considered this important aspect of the
issues before it” and that “[r]emanding rather than ruling on all of Dongyuan Kitchenware’s
claims constitutes a manifest injustice not only because it negates [Dongyuan’s] diligent efforts
in briefing these matters initially before the agency and again before the Court but also because
the Court has not held the Department to any standards of consistency or accountability for its
uninterrupted administrative practices.” Id. These various arguments are an attempt to relitigate
matters the court has already decided. See Arthur J. Humphreys, 973 F.2d at 1560. What is
more, Donyuan advances these arguments without demonstrating that the court, in deciding to
issue the remand order to which Dongyuan objects rather than direct Commerce to reject the
Thai import data, committed a clear error or allowed a manifest injustice by exceeding its
judicial authority.
Finally, Dongyuan asserts that “[t]he Court’s opinion is not clear on the scope of the
remand contemplated with respect to the surrogate value of steel” and requests clarification of
the scope of the remand. Dongyuan’s Mot. 11. But in requesting clarification, Dongyuan
essentially repeats its previous arguments alleging the unreliability of the Thai import data and
offers additional information on that topic, which Dongyuan posits that Commerce should accept
for the record during the remand proceeding. Id. at 11-13. The court rejects Dongyuan’s request
for clarification. In objecting to the court’s remand order as it applies to the surrogate value
determination for the steel coil FOP, Dongyuan neither identifies an ambiguity in the language
by which the court ordered a remand nor establishes a potential for misunderstanding.
In summary, Dongyuan fails to identify a valid ground upon which the court must, or
should, reconsider the order it issued in Elkay to address the steel coil FOP issue.
Consol. Court No. 13-00176 Page 9
2. Dongyuan’s Request for Reconsideration of the Court’s Order Concerning Surrogate Ratios
for SG&A Expenses
In the Final Determination, Commerce calculated surrogate ratios for selling, general and
administrative (“SG&A”) and interest expenses for the two individually-investigated respondents
(Dongyuan and another producer/exporter) using combined data from financial statements of
three companies in the chosen surrogate country, Thailand. Elkay, 38 CIT at __, 34 F. Supp. 3d
at 1377. Commerce had found that certain labor expenses included in these financial statements
were already included in the normal value calculations for the investigated respondents because
of the particular surrogate rate Commerce chose to value hours of labor. Id. at __, 34 F. Supp. 3d
at 1377-79. As a result, Commerce made certain adjustments to the SG&A expenses listed in the
financial statements when calculating the SG&A and interest expense ratios to avoid what it
considered to be double-counting. Id. Specifically, Commerce removed from its calculation of
the SG&A/interest rate expense ratios certain labor-related costs that were itemized in the
financial statements. Id.
After considering the record evidence pertaining to the Department’s chosen surrogate
labor rate, which was derived from Thailand’s National Statistics Office (“NSO”) Industrial
Census 2007 data, the court concluded that substantial record evidence did not support the
finding that double-counting of labor expenses would necessarily occur absent the particular
adjustments Commerce chose to make in the SG&A/interest rate expense ratio calculations. Id.
at __, 34 F. Supp. 3d at 1380. The court directed Commerce to “reconsider its decision to adjust
the SG&A/interest expense ratios and the particular way in which it accomplished those
adjustments.” Id. at __, 34 F. Supp. 3d at 1385. The court added that “because Commerce
grounded its decision in part on its choice of a surrogate labor cost, it may consider on remand
Consol. Court No. 13-00176 Page 10
alternative data sources with which to value the labor hours reported by the two investigated
respondents.” Id.
In its Motion for Reconsideration, Dongyuan argues that one of the alternate sources of
data from which Commerce, on remand, might value labor hours—Chapter 6A of the
International Labor Organization (“ILO”) Yearbook of Labor Statistics—is shown by record
evidence to be seriously flawed. Dongyuan’s Mot. 15-17. Dongyuan adds that the errors in the
ILO Chapter 6A data would have been clear to the court from certain information Dongyuan
submitted during the investigation. Id. Dongyuan characterizes this information as a disavowal
of the data by the ILO itself, which, according to Dongyuan, removed these data from its
statistical database. Dongyuan asserts that Commerce wrongfully excluded this information
from the record of the investigation as untimely submitted new factual information. Id. at 14-16.
According to Dongyuan, the evidence Commerce did allow on the record is sufficient to
demonstrate the serious flaws in, and the unsuitability of, the ILO Chapter 6A data (which
Commerce had used as a source for valuing labor hours in the preliminary phase of the
investigation). Id. at 17. Dongyuan “requests that the Court review this record evidence and
reconsider its request that the Department revisit its choice of surrogate value for the labor rate in
this investigation.” Id.
Because Dongyuan misreads the court’s opinion and order in Elkay, the court must reject
Dongyuan’s request. Nothing in the court’s opinion and order requested or required that
Commerce revisit its choice of surrogate value for the labor rate. To the contrary, the court
permitted Commerce to do so if Commerce so chose. In describing Elkay’s claim, the court
stated that “Elkay claims that Commerce failed to include in the normal value calculation the
total cost of the ‘hours of labor required,’ as required by 19 U.S.C. § 1677b(c)(3)(A), or to
Consol. Court No. 13-00176 Page 11
capture satisfactorily ‘general expenses,’ as required by 19 U.S.C. § 1677b(c)(1).” Elkay,
38 CIT at __, 34 F. Supp. 3d at 1376. As the court noted, “Commerce grounded its decision in
part on its choice of a surrogate labor rate.” Id. at __, 34 F. Supp. 3d at 1385.
The court also must reject Dongyuan’s request for other reasons. Dongyuan does not
identify any clear error or manifest injustice in the court’s allowing Commerce to consider other
data sources for the valuing the labor hours. Instead, Dongyuan appears to agree with that
approach and directs its objection solely to the prospect of the Department’s choosing to use the
ILO Chapter 6A data. Mentioning that it had placed on the record “comparable wage data from
economically comparable countries,” Dongyuan informs the court that it “would not object if the
Department chose any of the other reliable sources with lower labor rates from the record
evidence.” Id. at 17. Rather than identify a clear error or manifest injustice, Dongyuan is
attempting to offer, prematurely, argument on an issue that is pending in this litigation.
Dongyuan will have the opportunity to comment on the submission Commerce makes upon
remand, including the Department’s method of addressing the treatment of SG&A labor
expenses in the normal value calculation. If Commerce chooses to reconsider its choice of data
with which to value the labor hours, Dongyuan also will have the opportunity to comment on and
make arguments concerning that specific aspect of the Department’s decision.
Dongyuan also asks for reconsideration of the court’s statement that the record data did
“not support an actual finding that the NSO labor rate was higher—or by what percentage it was
higher—than it would have been had it been derived solely from Thai data on production labor
rather than from a combination of Thai data on production labor and various types of
non-production labor.” Dongyuan’s Mot. 18 (citing Elkay, 38 CIT at __, 34 F. Supp. 3d
at 1382). This statement occurred in a discussion holding invalid “the principal conclusion
Consol. Court No. 13-00176 Page 12
underlying the [Department’s] decision to make the adjustments to the SG&A/interest expense
ratios,” Elkay, 38 CIT at __, 34 F. Supp. 3d at 1380, which was that those adjustments were
“necessary in order ‘to avoid double-counting SG&A labor.’” Id. at __, 34 F. Supp. 3d at 1381
(citation omitted). As to why the Department’s finding of double-counting was unsupported by
substantial evidence, the court explained that “[t]he NSO information supports a finding that the
NSO rate was derived from an average remuneration paid for ‘persons engaged’ in various
production-related and non-production-related activities.” Id. The court noted, however, that
“[l]ess clear is that the NSO labor rate is higher than it would have been had it been derived
solely from data on production workers.” Id. The court stated, further, that “[a]pparently,
missing from the record are the raw data from which the NSO rate was derived, which possibly
could support such conclusions.” Id. at __, 34 F. Supp. 3d at 1382. The court did not reach its
own finding that the NSO labor rate was no higher than it would have been had it been derived
solely from data on production workers.
In support of its Motion for Reconsideration, Dongyuan reproduces record data that it
submits “support the conclusion that wages and salaries for non-factory workers are across the
board higher than for direct production labor and packing labor, the two categories to which the
Department applies its labor rate.” Dongyuan’s Mot. 18. Because this information is not data
from the 2007 NSO Industrial Census that underlies the NSO labor rate Commerce used in the
Final Determination, it does not support a finding that the NSO labor rate is higher than it would
have been had it been derived solely from data on production workers.3 Even Dongyuan
3
Dongyuan cites a website, Business-in-Asia.com, for its average baht/hour wage rate for
various non-production labor wages (Plant Manager, Office Manager, Executive Secretary,
Sales/Marketing Staff, General Office Staff), and it cites NSO/Bank of Thailand data for various
other wages (Technicians, Clerks, Sales Workers, Machine Operators & Assemblers, Elementary
(continued . . .)
Consol. Court No. 13-00176 Page 13
“concedes that the record evidence summarized above may not quite reach the standard set by
the Court of ‘raw data’ from which the above rates are derived.” Dongyuan’s Mot. 19. In
summary, the record information to which Dongyuan refers in support of its Motion for
Reconsideration does not show that the court erred in its statements concerning the absence from
the record of source data underlying the NSO labor rate. Nor has Dongyuan demonstrated an
error in the court’s holding that the record lacked sufficient evidence on which Commerce could
conclude that SG&A labor costs would be double-counted but for the adjustments made.
Next, Dongyuan urges reconsideration of the court’s statement that “even if the NSO rate
were presumed to be higher than it would be if it had not included non-production labor . . . the
record would not support the Department’s conclusion that the adjustments the Department made
to the SG&A/interest expense ratios were appropriate adjustments for the double-counting of
SG&A labor that the Department found would occur absent those adjustments.” Dongyuan’s
Mot. 20 (quoting Elkay 38 CIT at __, 34 F. Supp. 3d at 1383). Dongyuan complains that this
statement “contradicts,” id., the Department’s intention, as stated in the Department’s 2011
notice (“Labor Methodologies”) announcing a new methodology for valuing labor in non-market
economy (NME) proceedings. As described by the court, that intent is for Commerce to “make
the appropriate adjustments to the surrogate financial statements subject to the available
information on the record.” Elkay, 38 CIT at __, 34 F. Supp. 3d at 1383 n. 20 (citing
Antidumping Methodologies in Proceedings Involving Non-Market Economies: Valuing the
Factor of Production: Labor, 76 Fed. Reg. 36,092 (Int’l Trade Admin. June 21, 2011) (“Labor
Methodologies”). Dongyuan argues that “the Court appears to be overturning the Department’s
(continued . . .)
Occupations). Dongyuan’s Mot. 19. The NSO data that Dongyuan submits is from a Bank of
Thailand/NSO report that is different than the 2007 NSO Industrial Census.
Consol. Court No. 13-00176 Page 14
new labor calculation policy articulated in its Labor Methodologies notice.” Dongyuan’s
Mot. 21. This argument misconstrues the court’s decision in Elkay. The court stated that the
Labor Methodologies notice does not serve as support for the Department’s decision to adjust the
SG&A expenses listed in the surrogate financial statements because Commerce did not use the
ILO Chapter 6A rate as a surrogate value for labor for this case. Elkay, 38 CIT at __,
34 F. Supp. 3d at 1384-84. The court added that even if the Labor Methodologies notice is
construed to reflect an intention by Commerce to make appropriate adjustments to
SG&A/interest expense ratios even when Commerce does not use the Chapter 6A data, the court
still would conclude “the record in this case does not contain substantial evidence to support the
Department’s conclusion that when calculating the SG&A/interest expense ratios Commerce
made appropriate adjustments to the surrogate financial statements to compensate for an
overstated labor cost.” Id. at __, 34 F. Supp. 3d at 1384. The court did not hold impermissible
any adjustments to SG&A expenses, concluding instead that record evidence did not demonstrate
that the specific adjustments Commerce made in the Final Determination were appropriate. Id.
at __, 34 F. Supp. 3d at 1382.
II. CONCLUSION AND ORDER
For the reasons discussed in the foregoing, upon consideration of Dongyuan’s Motion for
Reconsideration, and the responses of defendant thereto, upon consideration of all papers and
proceedings had herein, and upon due deliberation, it is hereby
ORDERED that Dongyuan’s Motion for Reconsideration be, and hereby is, denied.
/s/Timothy C. Stanceu
Timothy C. Stanceu
Chief Judge
Dated: April 20, 2015
New York, NY