YC Rubber Co. (North Am.) LLC v. United States

Slip Op. 20-

UNITED STATES COURT OF INTERNATIONAL TRADE

YC RUBBER CO. (NORTH AMERICA) LLC
AND SUTONG TIRE RESOURCES, INC.,

Plaintiffs,

and

KENDA RUBBER (CHINA) CO., LTD.,

Plaintiff-Intervenor,
Before: Mark A. Barnett, Judge
Consol. Court No. 19-00069
and

MAYRUN TYRE (HONG KONG) LIMITED
AND ITG VOMA CORPORATION,

Consolidated-Plaintiffs,

v.

UNITED STATES,

Defendant.

OPINION

[Sustaining the U.S. Department of Commerce’s final results in the second
administrative review of the antidumping duty order covering certain passenger vehicle
and light truck tires from the People’s Republic of China.]

Dated: December 22, 2020

Jordan C. Kahn, Grunfeld Desiderio Lebowitz Silverman & Klestadt, LLP, of New York,
NY, argued for Plaintiffs YC Rubber Co. (North America) LLC and Sutong Tire
Resources, Inc. With him on the brief were Ned H. Marshak, Alan G. Lebowitz, and
Max F. Schutzman.

John M. Peterson, Neville Peterson, LLP, of New York, NY, argued for Consolidated
Plaintiff Mayrun Tyre (Hong Kong) Limited. With him on the brief were Richard F.
O’Neill and Patrick B. Klein.
Consol. Court No. 19-00069 Page 2

Nicholas R. Sparks, Hogan Lovells US LLP, of Washington, DC, argued for
Consolidated Plaintiff ITG Voma Corporation. With him on the brief were Jonathan T.
Stoel and Craig A. Lewis.

Ronald M. Wisla, Fox Rothschild LLP, of Washington, DC, for Plaintiff-Intervenor,
Kenda Rubber (China) Co., Ltd.

Ashley Akers, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, argued for Defendant United States. With
her on the brief were Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson,
Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the brief was Ayat
Mujais, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance,
U.S. Department of Commerce, of Washington, DC.

Barnett, Judge: This matter is before the court following the U.S. Department of

Commerce’s (“Commerce” or “the agency”) final results in the second administrative

review (“AR2”) of the antidumping duty order covering certain passenger vehicle and

light truck tires (“passenger tires”) from the People’s Republic of China (“the PRC” or

“China”) for the period of review August 1, 2016, through July 31, 2017 (“the POR”).

See Certain Passenger Vehicle and Light Truck Tires From the People’s Republic of

China, 84 Fed. Reg. 17,781 (Dep’t Commerce Apr. 26, 2019) (final results of

antidumping duty admin. review and final determination of no shipments; 2016–2017)

(“Final Results”), ECF No. 24-4, and accompanying Issues and Decision Mem., A-570-

016 (Apr. 19, 2019) (“I&D Mem.”), ECF No. 24-5.1

1
The administrative record associated with the Final Results is divided into a Public
Administrative Record (“PR”), ECF No. 24-2, and a Confidential Administrative Record
(“CR”), ECF No. 24-3. Parties submitted joint appendices containing record documents
cited in their Rule 56.2 briefs. See Public J.A., ECF No. 47; Confidential J.A. (“CJA”),
ECF No. 46. Plaintiffs YC Rubber Co. (North America) LLC and Sutong Tire
Resources, Inc., together with Consolidated Plaintiff ITG Voma Corporation (collectively,
“Plaintiffs”), physically filed two native exhibits (CR 45 and CR 307). See Certification of
Consol. Court No. 19-00069 Page 3

Plaintiffs challenge Commerce’s determinations to rely on a single mandatory

respondent’s rate as the rate for non-individually examined respondents qualifying for

separate rate status (hereinafter, “the separate rate respondents”); to reject the

withdrawal requests of certain non-individually examined respondents; and to exclude

certain import data from surrogate value data. See Confidential Mot. for J. on the

Agency R., ECF No. 35, and accompanying Confidential Mem. of P & A in Supp. of Pls.’

and Consol. [Pl.’s] Mot. for J. on the Agency R. (“Pls.’ Mem.”), ECF No. 35-1; Pls.’ and

Consol. Pl. ITG Voma’s Reply in Supp. of Mot. for J. on the Agency R. (“Pls.’ Reply”),

ECF No. 44.

Consolidated Plaintiff Mayrun Tyre (Hong Kong) Ltd. (“Mayrun”) also contests

Commerce’s decisions to rely on a single mandatory respondent’s rate as the dumping

margin for the separate rate respondents and to reject Mayrun’s withdrawal request.

See Consol. Pl. [Mayrun’s] Rule 56.2 Mot. for J. on the Agency R., ECF No. 39, and

accompanying Mem. of Law in Supp. of Pl. [Mayrun’s] Rule 56.2 Mot. for J. on the

Agency R. (“Mayrun’s Mem.”), ECF No. 39-2; Reply Br. in Supp. of Pl. [Mayrun’s] Rule

56.2 Mot. for J. on the Agency R., ECF No. 45.2

Defendant United States (“the Government”) filed a response supporting

Commerce’s Final Results. See Def.’s Mem. in Opp’n to Pls.’ Rule 56.2 Mots. for J.

Upon the Agency R. (“Gov’t’s Resp.”), ECF No. 41.

Filing and Service of Physical Ex. or Item, ECF No. 46. The court references the
confidential version of the relevant record documents, unless otherwise specified.
2
Plaintiff-Intervenor Kenda Rubber (China) Co., Ltd. filed a statement incorporating by
reference Plaintiffs’ and Consolidated Plaintiff’s Rule 56.2 motions in lieu of filing a
motion of its own. See Pl.-Int.’s Notice, ECF No. 37.
Consol. Court No. 19-00069 Page 4

For the following reasons, the court denies Plaintiffs’ and Mayrun’s motions for

judgment on the agency record and sustains Commerce’s Final Results.

BACKGROUND

On August 1, 2017, Commerce published a notice of opportunity to request an

administrative review of the antidumping duty order on passenger tires from China. See

Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation, 82

Fed. Reg. 35,754, 35,755 (Dep’t Commerce Aug. 1, 2017) (opportunity to request

admin. review), PR 1, CJA Tab 1. Review requests were submitted by several foreign

exporters and producers and by certain domestic companies. Respondent Selection

Mem. (Apr. 12, 2018) (“Selection Mem.”) at 2 & n.3, 7, PR 140, CR 47, CJA Tab 24

(citations omitted). On October 16, 2017, Commerce initiated AR2. Initiation of

Antidumping and Countervailing Duty Administrative Reviews, 82 Fed. Reg. 48,051,

48,055 (Dep’t Commerce Oct. 16, 2017) (“Initiation Notice”).

On April 12, 2018, Commerce selected Shandong Haohua Tire Co., Ltd

(“Haohua”) and Zhaoqing Junhong Co., Ltd. (“Junhong”) as mandatory respondents.

Selection Mem. at 1. Two weeks later, on April 28, 2018, Haohua informed Commerce

that it was withdrawing from participation in the administrative review. Haohua

Withdrawal from Admin. Review (Apr. 26, 2018), PR 150, CJA Tab 29.

Commerce issued the Preliminary Results without selecting a respondent to

replace Haohua. See Decision Mem. for the Prelim. Results (Sept. 4, 2018) (“Prelim.

Decision Mem.”) at 12, PR 224, CJA Tab 32; Certain Passenger Vehicle and Light

Truck Tires From the People’s Republic of China, 83 Fed. Reg. 45,893, 45,895 (Dep’t
Consol. Court No. 19-00069 Page 5

Commerce Sept. 11, 2018) (prelim. results of antidumping duty admin. review, prelim.

determination of no shipments, and rescission, in part; 2016–2017) (“Prelim. Results”),

PR 225, CJA Tab 33. Consistent with 19 U.S.C. § 1673d(c)(5)(A), Commerce relied on

Junhong’s rate of 73.63 percent to establish the rate for the separate rate respondents.

Prelim. Decision Mem. at 11–12; see also Prelim. Results, 83 Fed. Reg. at 45,895. To

value Junhong’s factors of production, Commerce selected Thailand as the primary

surrogate country, Prelim. Decision Mem. at 15, but disregarded values from countries

providing non-industry specific export subsidies, id. at 20.

Following the Preliminary Results, several respondents—including Plaintiffs,

Shandong Hengyu Science and Technology Co., Ltd. (“Hengyu”), Winrun Tyre Co., Ltd.

(“Winrun”), and Shandong Linglong Tyre Co., Ltd. (“Linglong”)—sought to withdraw their

review requests and separately filed case briefs challenging certain aspects of the

Preliminary Results. I&D Mem. at 2 & nn.3–4 (citations omitted); see also Case Br. of

[Hengyu] (Nov. 6, 2018) (“Hengyu Case Br.”), PR 256, CJA Tab 42; GDLSK Clients’

Case Br. (Nov. 8, 2018) (“YCR & Sutong Case Br.”) at ECF pp. 606–14, PR 258, CJA

Tab 43; Case Br. of [Winrun] (Nov. 8, 2018) (“Winrun Case Br.”), PR 262, CR 309, CJA

Tab 44; Case Br. of Shandong Wanda Boto Tyre Co. Ltd. and ITG Voma Corp. (Nov. 8,

2018), PR 263, CJA Tab 45; [Mayrun’s] Cmts. in Lieu of Case Br. (Nov. 8, 2018) at 1–6,

PR 265, CJA Tab 46.

For the Final Results, Commerce rejected the withdrawal requests submitted

after the Preliminary Results, I&D Mem. at 8–9, and continued to disregard import

values from countries providing non-industry specific export subsidies, id. at 18–19.
Consol. Court No. 19-00069 Page 6

Commerce calculated a rate of 64.57 percent for Junhong and relied on that margin as

the separate rate respondents’ margin. Final Results, 84 Fed. Reg. at 17,782–83.

JURISDICTION AND STANDARD OF REVIEW

The court has jurisdiction pursuant to section 516A(a)(2)(B)(iii) of the Tariff Act of

1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2018)3 and 28 U.S.C. § 1581(c)

(2018). The court will uphold an agency determination that is supported by substantial

evidence and otherwise in accordance with law. 19 U.S.C. § 1516a(b)(1)(B)(i).

The court’s review of Commerce’s statutory interpretation is guided by the two-

prong Chevron framework. See Apex Frozen Foods Priv. Ltd. v. United States, 862

F.3d 1337, 1344 (Fed. Cir. 2017); see generally Chevron, U.S.A., Inc. v. Nat. Res. Def.

Council, Inc., 467 U.S. 837 (1984). First, the court must determine “whether Congress

has directly spoken to the precise question at issue.” Apex Frozen Foods, 862 F.3d at

1344 (quoting Chevron, 467 U.S. at 842). If Congress’s intent is clear, “that is the end

of the matter,” and the court “must give effect to the unambiguously expressed intent of

Congress.” Id. (quoting Chevron, 467 U.S. at 842–43). However, “if the statute is silent

or ambiguous,” the court must determine whether the agency’s action “is based on a

permissible construction of the statute.” Id. (quoting Chevron, 467 U.S. at 843).

3
Further citations to the Tariff Act of 1930, as amended, are to the relevant portions of
Title 19 of the U.S. Code, 2018 edition.
Consol. Court No. 19-00069 Page 7

DISCUSSION

I. Commerce’s Reliance on Junhong as the Sole Mandatory Respondent

A. Legal Framework

For purposes of the antidumping duty laws, China is a non-market economy

country; therefore, Commerce begins with a “rebuttable presumption that all companies

within China are subject to government control and, thus, should be assessed a single

weighted-average dumping margin.” Prelim. Decision Mem. at 8–9. However, if an

exporter or producer can demonstrate the absence of government control, Commerce

will calculate a separate rate for the company. See id. at 9.

Section 1677f-1(c) contains a general rule and an exception with respect to

Commerce’s selection of respondents. In relevant part, the statute provides:

(1) General Rule
In determining weighted average dumping margins under section
1673b(d), 1673d(c), or 1675(a) of this title, [Commerce] shall
determine the individual weighted average dumping margin for each
known exporter and producer of the subject merchandise.

(2) Exception
If it is not practicable to make individual weighted average dumping
margin determinations under paragraph (1) because of the large
number of exporters or producers involved in the investigation or
review, [Commerce] may determine the weighted average dumping
margins for a reasonable number of exporters or producers by limiting
its examination to--

...

(B) exporters and producers accounting for the largest volume of the
subject merchandise from the exporting country that can be reasonably
examined.

19 U.S.C. § 1677f-1(c).
Consol. Court No. 19-00069 Page 8

When Commerce utilizes the exception and selects a subset of respondents for

individual examination, it refers to the selected respondents as “mandatory”

respondents, distinguishing them from any voluntary respondents that may provide

questionnaire responses based on the possibility that Commerce will have the

resources to examine them. Cf. 19 C.F.R. § 351.204(c)–(d) (discussing Commerce’s

treatment of individually-examined (i.e., mandatory) and voluntary respondents). Non-

selected respondents that demonstrate their eligibility for a separate rate (i.e., the

separate rate respondents) receive an all-others rate determined using the methodology

provided in section 1673d(c)(5). See Soc Trang Seafood Joint Stock Co. v. United

States, 42 CIT ___, ___, 321 F. Supp. 3d 1329, 1346 (2018) (discussing the relevant

statutory provisions for determining the all-others rate). Section 1673d(c)(5) provides

that the all-others rate generally is the weighted average of the individually-investigated

exporters’ and producers’ dumping margins, excluding any margins that are de minimis,

zero, or determined entirely based on facts otherwise available. 19 U.S.C.

§ 1673d(c)(5)(A).

B. Additional Background

Commerce selected Haohua and Junhong as mandatory respondents pursuant

19 U.S.C. § 1677f-1(c)(2) because they accounted for the largest volume of subject

merchandise imported during the POR that Commerce determined it could reasonably

examine. Selection Mem. at 1, 7.4 Haohua, by withdrawing from participation, failed to

4
Commerce used data from U.S. Customs and Border Protection (“CBP”) to select
respondents and invited interested parties to comment on that data. U.S. Customs
Entries (Nov. 30, 2017), PR 119, CR 44–45, CJA Tab 22. Petitioner United Steel,
Consol. Court No. 19-00069 Page 9

establish its eligibility for a separate rate and was considered part of the “China-wide

entity.” Unpublished Prelim. Results (Sept. 5, 2018), app. 2, PR 223, CJA Tab 31. The

other mandatory respondent, Junhong, participated in the review and responded to

Commerce’s questionnaires. See Prelim. Decision Mem. at 3–4. Commerce found that

Junhong, along with several other companies, qualified for separate rate status because

they exercised “both de facto and de jure control of [their] operations.” Id. at 11; see

also Prelim. Separate Rate Status Mem. (Sept. 4, 2018) at 1, PR 231, CR 298, CJA Tab

35.

For the Preliminary Results, Commerce relied on Junhong’s rate for the separate

rate respondents because that was the only calculated rate in the review. Prelim.

Decision Mem. at 12; see also 19 U.S.C. § 1673d(c)(5)(A). In the administrative

briefing, several respondents challenged Commerce’s reliance on Junhong’s rate for the

separate rate respondents. See, e.g., Hengyu Case Br; YCR & Sutong Case Br. at

ECF pp. 606–14; Winrun Case Br.

For the Final Results, Commerce continued to rely on Junhong’s rate to

determine the rate for the separate rate respondents. I&D Mem. at 11. Commerce

construed the statute as not requiring it to use multiple rates to determine the separate

rate respondents’ rate. Id. at 14; see also id. at 11 (“Nothing in the statutory framework

requires Commerce to calculate the all-others rate using multiple rates, nor precludes

Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service
Workers International Union, AFL-CIO, CLC (“USW”) urged Commerce to examine
three respondents. Pet’r’s Respondent Selection Cmts. (Dec. 7, 2017) at 5, PR 120,
CR 46, CJA Tab 23. Commerce declined USW’s request and selected Junhong and
Haohua. Selection Mem. at 7.
Consol. Court No. 19-00069 Page 10

Commerce from relying on a single rate.”). Citing Soc Trang, 321 F. Supp. 3d at 1347–

48, Commerce stated that “it is not an unforeseeable occurrence for Commerce . . . to

be left with only one [mandatory] respondent” at the end of a review or an investigation.

Id. at 14 & n.65.

Commerce acknowledged that, in other reviews, including the prior administrative

review, it has “selected a[ replacement] respondent when a prior-selected mandatory

respondent [did] not participate in the proceeding.” Id. at 14; see also id. 16 & n.79

(citation omitted). The agency noted, however, that the separate rate respondents did

not comment on Commerce’s examination of one respondent until after the Preliminary

Results, at which point “it was not feasible to select an additional respondent.” Id. at 14;

see also id. at 16. Further, Commerce explained, no respondent requested treatment

as a mandatory respondent after Haohua withdrew. Id. at 15–16.

C. Parties’ Contentions

Plaintiffs and Mayrun challenge Commerce’s reliance on Junhong’s rate to

determine the margin for the separate rate respondents on two grounds.5

First, they contend that Commerce’s construction of the statute is unlawful under

both prongs of the Chevron analysis. See Pls.’ Mem. at 17–23, 26–27; Mayrun’s Mem.

at 27–28. With respect to the first prong of Chevron, Plaintiffs and Mayrun assert that

the plain language of the statute obligates Commerce to examine more than one

5
Mayrun asserts that it was unreasonable for Commerce to examine only a single
respondent and that Junhong is not a representative producer in support of its argument
that Commerce should have granted its withdrawal request. See Mayrun’s Mem. at 22–
24. The court construes these arguments as challenging Commerce’s examination of
Junhong as the sole mandatory respondent.
Consol. Court No. 19-00069 Page 11

respondent. Pls.’ Mem at 18–19; Mayrun’s Mem. at 27. With respect to the second

prong of Chevron, Plaintiffs argue that 19 U.S.C. § 1677f-1(c)(2)—as an exception to

the general rule provided in section 1677f-1(c)(1)—is to be construed narrowly. Pls.’

Mem. at 23. Plaintiffs aver that permitting Commerce to examine only a single

respondent in a review would unreasonably broaden Commerce’s authority to utilize the

exception, thereby undermining the general rule. Id.

Second, Plaintiffs and Mayrun contend that Junhong’s rate is not representative

of the separate rate respondents’ pricing based on Junhong’s import volume. Id. at 28–

29; Mayrun’s Mem. at 23. Plaintiffs also assert that Junhong’s rate is not representative

because it is significantly higher than the rates determined in prior segments of this

proceeding. Pls.’ Mem. at 28.

The Government contends that if Congress intended to bar Commerce from

examining only one respondent it would have done so through a specific statutory

provision. Gov’t’s Resp. at 24. The Government also cites 1 U.S.C. § 1 (“the

Definitions Act”) and Soc Trang, 321 F. Supp. 3d at 1347–48, in support of its argument

that the plural terms “exporters and producers” should be interpreted to include the

singular (i.e., one exporter or producer). Id. at 24–25. The Government further argues

that Commerce did not have the resources to investigate more than two respondents

when it selected respondents and no party requested treatment as a voluntary

respondent. Id. at 25–26.

Regarding representativeness, the Government contends that having selected

respondents pursuant to 19 U.S.C. § 1677f-1(c)(2)(B), no further representativeness
Consol. Court No. 19-00069 Page 12

examination is required and there is no evidence suggesting that Junhong’s rate is not

representative. Id. at 28–29.

D. Analysis

1. Commerce’s Construction of the Statute is Lawful Under Chevron

According to Plaintiffs and Mayrun, Commerce’s statutory interpretation fails both

prongs of the Chevron analysis. They assert that when Commerce limits the number of

exporters or producers it examines pursuant to 19 U.S.C. § 1677f-1(c)(2), Commerce

must replace any respondent that withdraws from participation in the administrative

review to ensure that the number of mandatory respondents is greater than one. See

Pls.’ Mem. at 17–23; Mayrun’s Mem. at 26–28. For the reasons that follow, the statute

does not speak directly to this issue and the agency’s construction of the statute is

permissible.

a. Chevron Prong One

When examining an issue of statutory interpretation, the court must “carefully

investigate the matter to determine whether Congress’s purpose and intent on the

question at issue is judicially ascertainable.” Timex V.I., Inc. v. United States, 157 F.3d

879, 881 (Fed. Cir. 1998). That inquiry involves an examination of “the statute’s text,

structure, and legislative history,” applying, if necessary, “the relevant canons of

interpretation.” Gazelle v. Shulkin, 868 F.3d 1006, 1010 (Fed. Cir. 2017) (quoting Heino

v. Shinseki, 683 F.3d 1372, 1378 (Fed. Cir. 2012)).

As an initial matter, this case does not require the court to address whether 19

U.S.C. § 1677f-1(c)(2)(B) permits Commerce to select only one respondent for

examination. Commerce initially selected two mandatory respondents and no party has
Consol. Court No. 19-00069 Page 13

challenged that decision before Commerce or the court. See I&D Mem. at 14–15.

Nevertheless, Plaintiffs and Mayrun now assert that Congress’s use of the plural terms

“exporters and producers” in section 1677f-1(c)(2)(B) creates a continuing obligation for

Commerce to examine more than one company. See Pls.’ Mem. at 18–19; Mayrun’s

Mem. at 27; Oral Arg. at 6:20–7:20 (time stamp from oral argument) available at

https://www.cit.uscourts.gov/sites/cit/files/082620-19-00069-MAB.mp3.mp3 (last

accessed December 22, 2020). In other words, Plaintiffs and Mayrun argue, Commerce

was statutorily required to select a replacement respondent when Haohua withdrew its

participation.

Section 1677f-1(c)(2)(B) permits Commerce, when certain conditions are met, to

“limit[] its examination to” those “exporters and producers accounting for the largest

volume of the subject merchandise from the exporting country that the [agency]

determines can be reasonably examined.”6 In the Definitions Act, Congress prescribed

that, “unless the context indicates otherwise-- . . . words importing the plural include the

singular.” 1 U.S.C. § 1. Plaintiffs argue that relevant context is provided by 19 U.S.C.

§ 1673d(c)(5), such that “it is impossible to ‘average’ the margins assigned to a single

party.” Pls.’ Reply at 5; see also Pls.’ Mem. at 19–21 (arguing that 19 U.S.C.

6
The legislative history of 19 U.S.C. § 1677f-1(c) is silent with respect to the number of
respondents Commerce must examine. The Statement of Administrative Action (“SAA”)
states that, when Commerce limits its examination pursuant to 19 U.S.C. § 1677f-1(c),
the agency “either limits its examination to those firms accounting for the largest volume
of exports to the United States or employs sampling techniques.” Uruguay Round
Trade Agreements, SAA, H.R. Doc. No. 103–316, vol. 1, at 872 (1994), reprinted in
1994 U.S.C.C.A.N. 4040, 4200. “[T]he authority to select samples rests exclusively with
Commerce . . . .” Id. at 872, reprinted in 1994 U.S.C.C.A.N. at 4201. Thus, the SAA
does not speak to the instant issue.
Consol. Court No. 19-00069 Page 14

§ 1673d(c)(5) provides context demonstrating that Commerce must examine more than

one respondent pursuant to section 1677f-1(c)(2)(B)). Plaintiffs’ argument is not

persuasive.

Section 1673d(c)(5) governs Commerce’s calculation of the all-others rate in

investigations, is utilized by Commerce in reviews, and provides relevant context for the

terms “exporters and producers” as used in the statute. Subsection (c)(5)(A) provides

that Commerce is to determine the all-others rate (for exporters and producers not

individually investigated) using the “amount equal to the weighted average of the

estimated weighted average dumping margins established for exporters and producers

individually investigated, excluding any zero and de minimis margins, and any margins

determined entirely [on the basis of the facts otherwise available].” 19 U.S.C.

§ 1673d(c)(5)(A). If, however, “any one or all three of those circumstances occur,

Commerce can be left with only one” rate suitable for use in determining the all-others

rate. Soc Trang, 321 F. Supp. 3d at 1347; see also I&D Mem. at 11–12 (construing the

use of the plural terms “exporters” and “producers” in the statute as providing “for the

possibility of Commerce having multiple [calculated] rates at the end of a given

investigation or review” but not as necessitating “the calculation of a separate rate using

multiple respondents’ rates”).7

7
Plaintiffs contend that Soc Trang is distinguishable because, in that case, Commerce
rescinded the review with respect to one of two mandatory respondents more than four
months after publishing the preliminary results. Pls.’ Mem. at 22. The Soc Trang court
did not suggest that the timing of the respondent’s withdrawal was relevant to its
interpretation of the statute. 321 F. Supp. 3d at 1346–48. Moreover, Plaintiffs’ and
Mayrun’s reliance on Schaeffler Italia S.R.L. v. United States, 35 CIT 725, 729, 781 F.
Consol. Court No. 19-00069 Page 15

While Plaintiffs argue that the statutory reference to an “average” in section

1673d(c)(5)(A) requires more than one rate, see Pls.’ Mem at 21, there is no

requirement for multiple data points to determine an average. An average is simply the

aggregate of x data points divided by x. See, e.g., OXFORD ENGLISH DICTIONARY,

https://oed.com/view/Entry/13684 (last visited Dec. 22, 2020) (defining “average” as

“dividing the aggregate of a series by the number of its units”); MIKE HAMMETT,

DICTIONARY OF INT’L TRADE FINANCE 33 (2001) (providing that “[t]he average of n values

is the sum of the values divided by n”). While it may be common for an average to be

based on more than one data point, the mechanical process of determining a weighted

average is the same whether there is a single data point or multiple data points. In the

case of a single data point, both the simple average and the weighted average will be

the same as the single data point. See, e.g., Soc Trang, 321 F. Supp. 3d at 1347 (the

statute “does not necessitate the calculation of an all-others rate using multiple

respondents’ rates at the end of every investigation or review”).

Plaintiffs’ interpretation of section 1673d(c)(5)(A), on the other hand, is

untenable. Plaintiffs suggest that when Commerce selects multiple respondents for

individual investigation and, nevertheless, ends up with a single above-de minimis, non-

facts-available, calculated rate, the agency would be required to restart the process and

select another respondent to investigate in order to have more than one rate to average

Supp. 2d 1358, 1362–63 (2011), is inapposite. See Mayrun’s Mem. at 27; Pls.’ Reply at
4. Schaeffler is not binding on this court and its reasoning is not persuasive because it
did not address the Definitions Act or the statutory framework of 19 U.S.C. § 1677f-1(c),
including 19 U.S.C. § 1673d(c)(5).
Consol. Court No. 19-00069 Page 16

to determine the all-others rate. See, e.g., Pls.’ Reply at 5 (stating that it is “impossible

to ‘average’ the margin[] assigned to a single party”). Such a circular approach is

difficult to reconcile with the statutory deadlines Congress made applicable to

antidumping proceedings. Plaintiffs would avoid this scenario by asserting that

Commerce could resort to the exception provided for in 19 U.S.C. § 1673d(c)(5)(B),

which allows the agency to use “any reasonable method” to establish the all-others rate.

See Pls.’ Mem. at 31–32 (arguing that Commerce should have used “an alternative

methodology to assign a reasonable separate rate”). Plaintiffs’ argument fails, however,

because the plain language of the statute limits this exception to situations when the

margins established for “all exporters and producers individually investigated” are found

to be zero, de minimis, or based entirely on facts available. 19 U.S.C. § 1673d(c)(5)(B)

(emphasis added); see also Fine Furniture (Shanghai) Ltd. v. United States, 42 CIT

___, ___, 353 F. Supp. 3d 1323, 1356 (2018) (noting that section 1673d(c)(5) “leaves

little room for discretion” with respect to applying the general rule). Thus, the exception

would be unavailable when Commerce calculated a non-de minimis rate for one

mandatory respondent.

For these reasons, Plaintiffs and Mayrun fail to persuade the court that the

statutory text or context unambiguously requires Commerce to maintain at least two

respondents for individual investigation pursuant to section 1677f-1(c)(2)(B) after a

respondent withdraws its participation in the review. Simply put, section 1677f-1(c)(2) is

silent as to the consequences when one or more of the selected respondents withdraws

from the proceeding or otherwise ceases to participate following Commerce’s decision
Consol. Court No. 19-00069 Page 17

to limit its examination. Accordingly, the court turns to Chevron prong two in order to

consider whether Commerce’s statutory construction is permissible.

b. Chevron Prong Two

To determine whether an agency’s statutory construction is permissible, a court

considers whether the construction is reasonable, consistent with statutory goals, and

reflects agency practice. Apex Exps. v. United States, 777 F.3d 1373, 1379 (Fed. Cir.

2015). “The agency’s construction need not be the only reasonable interpretation or

even the most reasonable interpretation.” Changzhou Trina Solar Energy Co. v. United

States, 975 F.3d 1318, 1326 (Fed. Cir. 2020).

Here, Commerce explained that it is not required to select “a [replacement]

mandatory respondent[] once a previously selected mandatory respondent refuses to

participate.” I&D Mem. at 14. Commerce further noted that when Haohua withdrew,

none of the exporters or producers subject to the review “requested individual

examination, treatment as a voluntary respondent, or that Commerce select an

additional respondent.” Id. at 15–16. In fact, none of the separate rate respondents

requested Commerce to select another mandatory respondent “until after Commerce

calculated Junhong’s allegedly ‘aberrational’ margin [for] the Preliminary Results.” Id. at

14.

On these facts, Commerce’s interpretation of the requirements placed upon the

agency by section 1677f-1(c)(2)(B) is reasonable. The separate rate respondents had

the opportunity to comment on Commerce’s respondent selection when Commerce

released the CBP data and when Haohua withdrew from participation in the review in

late April 2018. Id. at 14. Instead of seizing these opportunities, the separate rate
Consol. Court No. 19-00069 Page 18

respondents waited until after the agency issued the Preliminary Results in September

2018 to comment, at which point “it was not feasible to select an additional respondent.”

Id.8

Plaintiffs argue that the separate rate respondents’ failure to request voluntary

respondent status does not excuse Commerce’s failure to select an additional

respondent. Pls.’ Mem. at 25–26. Plaintiffs suggest that it was unreasonable for

Commerce not to replace Haohua when Commerce had previously decided that it had

the resources to examine two mandatory respondents. See id. at 26 (arguing that

because “Commerce had the time and ability to investigate two or more mandatory

respondents, the legal duty to do so exists independent of any filings or requests by

respondents”). As discussed above, however, the statute places no such explicit

obligation on Commerce. Commerce’s declination to select another mandatory

respondent is reasonable given the separate rate respondents’ failure to take timely

action in this regard. The court, however, need not and does not address whether it

would have been reasonable for Commerce to decline a timely request to replace

Haohua as a mandatory respondent.

8
While the court does not find that the doctrine of laches bars Plaintiffs and Mayrun
from arguing that Commerce was obligated to a select a replacement respondent, the
court’s conclusion cannot be divorced from the fact that the separate rate respondents
waited at least five months, until it was too late as a practical matter, to ask Commerce
to add another mandatory respondent. See Kokusai Elec. Co. v. United States, 10 CIT
166, 171, 632 F. Supp. 23, 27–28 (1986) (rejecting the plaintiff’s argument for failure to
exhaust administrative remedies but stating that laches would bar the plaintiff’s
argument because the “plaintiff slept on its rights”).
Consol. Court No. 19-00069 Page 19

Plaintiffs also argue that Commerce’s interpretation of section 1677f-1(c)(2)(B)

allows this exception, whereby Commerce selects only the largest exporters or

producers for individual examination, to undermine the general rule of determining an

individual margin for each known exporter and producer. Pls.’ Mem. at 23 (citing

Carpenter Tech. Corp. v. United States, 33 CIT 1721, 1730, 662 F. Supp. 2d 1337,

1344 (2009)); see also Oral Arg. at 43:32–45:30 (arguing that Commerce’s examination

of one respondent is contrary to the statutory purpose).9 Notably, however, Plaintiffs do

not challenge Commerce’s decision to select a subset of exporters and producers for

individual investigation, see Pls.’ Mem. at 18, nor do they offer any argument as to why

Commerce’s use of the respondent selection exception in this case undermines the

general rule.10 Thus, Plaintiffs fail to provide a basis to disturb Commerce’s

determination.

9
In Carpenter Technology, Commerce found that it was unable to examine more than
two companies and resorted to 19 U.S.C. § 1677f-1(c)(2)(A) to limit its review. 33 CIT
at 1727, 662 F. Supp. 2d at 1342. The court construed Commerce’s determination as
an implicit interpretation of the phrase “large number of exporters and producers” to
mean “any number larger than two.” 33 CIT at 1727, 662 F. Supp. 2d at 1342; see also
19 U.S.C. § 1677f-1(c)(2)(B) (premising Commerce’s invocation of the exception on
situations when there are a “large number of exporters or producers involved in the
investigation or review”). The court rejected the agency’s construction of the statute
under Chevron prong one and remanded for the agency to reconsider the number of
respondents it practically may examine. Carpenter Tech., 33 CIT at 1727–32, 662 F.
Supp. 2d at 1342–46. Carpenter Technology is distinguishable because, in that case,
the court addressed Commerce’s decision to invoke the exception, which decision
Plaintiffs do not challenge here.
10
Plaintiffs argue that Commerce had the time and resources to select an additional
(i.e., a replacement) mandatory respondent. Pls.’ Mem. at 23–25; Oral Arg. at 45:45–
46:23. While Plaintiffs make out a case that it would have been reasonable for
Commerce to have selected a replacement respondent for investigation when Haohua
withdrew from participation and, as noted above, Commerce has done so in other
Consol. Court No. 19-00069 Page 20

Lastly, Plaintiffs and Mayrun have not shown that Commerce’s conduct is

demonstrably inconsistent with agency practice. See Pls.’ Reply at 8–9; Mayrun’s Mem.

at 22. Commerce acknowledged that it has in some cases, including the first

administrative review (“AR1”) of this antidumping duty order, selected a replacement

respondent when a mandatory respondent does not participate in a proceeding. I&D

Mem. at 14, 16. Citing four administrative reviews, Plaintiffs aver that Commerce has a

practice of replacing a mandatory respondent when necessary to ensure examination of

two mandatory respondents when a respondent withdraws its request for review, all

requests for review of that respondent are withdrawn, or the respondent fails to respond

to Commerce’s questionnaire. See Pls.’ Reply at 8–9; [Pls.’] Resp. to the Court’s

Request (Aug. 28, 2020), ECF No. 55. Commerce, however, treats “each segment as

an isolated proceeding in the absence of relevant evidence of similarities between

proceedings.” I&D Mem. at 16. In light of the numerous possible differences in

demands on the agency’s resources, timing of the withdrawal or decision not to

participate, and degrees of expressed interest in participating as a voluntary or

replacement respondent, Plaintiffs have not shown that the circumstances of the

administrative reviews they cite are similar to this case.

Accordingly, the court finds that Commerce’s construction of section 1677f-

1(c)(2)(B) is permissible under the Chevron analysis and the court will defer to the

agency’s interpretation of the statute.

cases, Plaintiffs do not make the case that taking such action is the only reasonable
interpretation of the statute.
Consol. Court No. 19-00069 Page 21

2. Commerce Properly Relied on Section 1673d(c)(5)(A) to Determine
the Separate Rate Respondents’ Rate

Plaintiffs and Mayrun contend that Junhong’s rate is unrepresentative of any

dumping by the separate rate respondents and, therefore, substantial evidence does

not support Commerce’s determination of the rate for the separate rate respondents.

These Parties do not, however, identify any legal authority that requires Commerce to

evaluate the representativeness of a calculated rate determined pursuant to the general

rule provided in 19 U.S.C. § 1673d(c)(5)(A).

Plaintiffs rely on the U.S. Court of Appeals for the Federal Circuit’s (“the Federal

Circuit”) discussion of “representativeness” in Albemarle Corp. & Subsidiaries v. United

States, 821 F.3d 1345 (Fed. Cir. 2016), to make their argument that Junhong’s rate

must be representative of their level of dumping in order to be assigned to them and

that substantial evidence does not support such a finding.11 See Pls.’ Mem. at 27, 32.

Albemarle speaks to the application of section 1673d(c)(5)(B)—the exception to the

general rule provided for in section 1673d(c)(5)(A)—which is used when the rates for all

mandatory respondents are de minimis, zero, or based entirely on facts otherwise

available. 821 F.3d at 1351–53; see also 19 U.S.C. § 1673d(c)(5)(B). Conversely, in

11
In Albemarle, the Federal Circuit rejected Commerce’s decision to “carry forward”
rates determined for the non-individually examined respondents in lieu of using “the
expected method” discussed in the SAA (the weighted average of the zero rates, de
minimis rates, and rates determined entirely on the facts otherwise available) when the
expected method would have resulted in averaging the de minimis rates calculated for
the individually examined respondents. 821 F.3d 1349–51; see also SAA at 873,
reprinted in 1994 U.S.C.C.A.N. at 4201. The Federal Circuit relied on the SAA to find
that Commerce could not avoid using the expected methodology without first
determining that the result of that method would not be representative of the level of
dumping of the separate rate respondents. Albemarle, 821 F.3d at 1353–54.
Consol. Court No. 19-00069 Page 22

this case, Commerce determined the all-others rate by applying the general rule in 19

U.S.C. § 1673d(c)(5)(A) (i.e., averaging the rate calculated in the review). See I&D

Mem. at 13. Commerce’s use of the general rule is consistent with the statute because

Junhong’s calculated rate was not zero, de minimis, or based on the facts available.

See Fine Furniture, 353 F. Supp. 3d at 1356 (affirming Commerce’s determination of

the separate rate based on the rate calculated for a single mandatory respondent); Mid

Continent Steel & Wire, Inc. v. United States, 42 CIT ___, ___, 321 F. Supp. 3d 1313,

1321 (2018) (same). Plaintiffs fail to articulate any basis for avoiding the results of the

general rule. Thus, Plaintiffs’ reliance on Albemarle is mistaken.

Moreover, notwithstanding Albemarle’s lack of direct relevance to this case,

some of the reasoning invoked by the Federal Circuit undermines Plaintiffs’ and

Mayrun’s position. The Albemarle court found that the statutory authority to limit a

proceeding to the largest exporters and producers suggests that the selected

respondents “can be viewed as representative of all exporters.” 821 F.3d at 1353.

Similarly, in Changzhou Hawd Flooring Co. v. United States, 848 F.3d 1006, 1012 (Fed.

Cir. 2017), the Federal Circuit rejected Commerce’s deviation from the expected

method because mandatory respondents “are assumed to be representative” of non-

individually examined respondents “unless evidence shows otherwise.” That reasoning,

coupled with the absence of clear discretion in applying the general rule, supports

Commerce’s reliance on Junhong’s rate here.

While Plaintiffs and Mayrun have not established that Commerce was required to

consider evidence they assert undermines the representativeness of Junhong’s rate for
Consol. Court No. 19-00069 Page 23

the separate rate respondents, their arguments nevertheless fail to impeach

Commerce’s determination. Plaintiffs and Mayrun contend that Junhong’s rate is

aberrationally high compared to the rates determined in previous segments of this

proceeding. See Pls.’ Mem. at 28; Mayrun’s Mem. at 24. Commerce considered this

argument and determined that although Junhong’s rate “was relatively higher than

margins calculated in previous [segments of this] proceeding[],” it was “not automatically

. . . inaccurate or inappropriate for use as the rate for the non-selected companies.” I&D

Mem. at 12.

Plaintiffs’ and Mayrun’s argument before the court provides no legal basis for

disregarding Junhong’s rate even if it is higher than previous administrative reviews.

Otherwise, their “mere disagreement with Commerce’s weighing of the evidence[] . . .

mistakes the function of the court, which is to determine whether the [Final Results] are

supported by substantial evidence, not to ‘reweigh the evidence or . . . reconsider

questions of fact anew.’” Haixing Jingmei Chem. Prods. Sales Co. v. United States, 42

CIT ___, ___, 335 F. Supp. 3d 1330, 1346 (2018) (quoting Downhole Pipe & Equip.,

L.P. v. United States, 776 F.3d 1369, 1377 (Fed. Cir. 2015)).

Next, Plaintiffs and Mayrun argue that Junhong’s import volume demonstrates

that its dumping margin is not representative of the separate rate respondents’ pricing.

See Pls.’ Mem. at 28–29; Mayrun’s Mem. at 23.12 It is undisputed that Junhong is one

12
Unlike Plaintiffs, Mayrun relies on 19 U.S.C. § 1677f-1(c)(2)(B) to argue that Junhong
is not representative because it’s import volume did not account for the “largest volume
of the subject merchandise from the exporting country that can be reasonably
examined.” Mayrun’s Mem. at 23 (quoting 19 U.S.C. § 1677f-1(c)(2)(B)). As discussed
Consol. Court No. 19-00069 Page 24

of the largest exporters by volume of subject merchandise in this review according to

CBP data. Selection Mem. at 7, Attach. 1; see also I&D Mem. at 14 (Commerce may

limit its examination to exporters accounting for the largest volume of subject

merchandise imported during the period of review). No Party explains the legal

relevance of this argument to the application of the general rule and, as discussed

above with respect to Albemarle, Commerce’s statutory authorization to select the

largest exporters supports Commerce’s reliance on that rate for the separate rate

respondents. Bald assertions that Junhong’s import volume resulted in an

unrepresentative margin are unavailing.

Plaintiffs also seek to rely on Diamond Sawblades Manufacturers’ Coalition v.

United States, 43 CIT ___, 359 F. Supp. 3d 1374 (2019), and Baoding Mantong Fine

Chemistry Co. v. United States, 39 CIT ___, 113 F. Supp. 3d 1332 (2015), in support of

their argument that Junhong’s rate is unrepresentative. See Pls.’ Mem. at 29–30.

Those cases do not provide a basis to remand Commerce’s determination.

In Baoding, the court found that a respondent’s calculated rate, 453.79 percent,

was “so prohibitive a dumping margin” that it was difficult to comprehend as a remedial

measure. 113 F. Supp. at 1338. Baoding is simply inapposite because it addresses

Commerce’s calculation of a mandatory respondent’s own rate, not the application of

that rate, pursuant to the general rule of 19 U.S.C. § 1673d(c)(5)(A), to the separate

rate respondents.

above, however, Mayrun does not challenge the initial respondent selection
determination and fails to establish that the statute contains a continuing obligation to
re-evaluate respondent selection throughout the review.
Consol. Court No. 19-00069 Page 25

In Diamond Sawblades, Commerce originally determined rates for two exporters:

“Weihai” and “Jiangsu.” 359 F. Supp. 3d at 1376. The court remanded the final results

for Commerce to reconsider its denial of a request to withdraw the review of Weihai. Id.

On remand, Commerce accepted the withdrawal request, and “rescinded its review of

Weihai leaving only a single mandatory respondent–Jiangsu.” Id. at 1377. Commerce

used Jiangsu’s rate as the all-others rate, resulting in an increase to the all-others rate

from 29.76 percent in the final results to 56.67 percent in the remand results. See id.

The court found that substantial evidence did not support Commerce’s reliance

on Jiangsu’s rate to determine the all-others rate in the remand results, explaining that:

This case is sui generis for several reasons. On remand Commerce was in the
unique position of deciding whether or not to rescind the administrative review of
Weihai after it had already completed a full individual examination of Weihai.
This is significant, in part, because the resulting rate for Weihai was drastically
different from that of . . . Jiangsu.

Id. at 1381 (footnote omitted). The Diamond Sawblades court appeared to find that the

prior calculation of an antidumping duty margin for Weihai and its inclusion in the

determination of the rate for the separate rate respondents created a basis to further

consider whether Jiangsu’s individual rate should be assigned to the separate rate

respondents once Weihai was excluded from the review on remand. See id. at 1381–

82. Here, there are no facts on the record, comparable to those which existed in

Diamond Sawblades, to suggest that the general rule, as written by Congress, should

not be applied. Thus, Plaintiffs’ reliance on Diamond Sawblades is inapposite.

For these reasons, Commerce’s reliance on Junhong’s rate for the separate rate

respondents is in accordance with law and supported by substantial evidence.
Consol. Court No. 19-00069 Page 26

II. Commerce’s Decisions to Deny the Untimely Requests for Withdrawal and
Rescission

A. Legal and Factual Background

While the antidumping duty statute provides for annual administrative reviews

upon request, the statute does not provide for what happens if a request, once made, is

withdrawn. Glycine & More, Inc. v. United States, 880 F.3d 1335, 1337 (Fed. Cir.

2018). Commerce has promulgated a regulation, which states:

The [agency] will rescind an administrative review under this section, in whole or
in part, if a party that requested a review withdraws the request within 90 days of
the date of publication of notice of initiation of the requested review. The [agency]
may extend this time limit if the [agency] decides that it is reasonable to do so.

19 C.F.R. § 351.213(d)(1).

On October 16, 2017, Commerce initiated the underlying review and, in the

Initiation Notice, advised the parties that the agency did “not intend to extend the 90-day

deadline [to request withdrawal from the administrative review] unless the requestor

demonstrates that an extraordinary circumstance has prevented it from submitting a

timely withdrawal request.” 82 Fed. Reg. at 48,052. Commerce would determine

whether to extend the 90-day deadline “on a case-by-case basis.” Id. The 90-day

period to withdraw a review request pursuant to 19 C.F.R. § 351.213(d)(1) therefore

expired on January 15, 2018. I&D Mem. at 8.

On January 23, 2018, the Federal Circuit decided Glycine. The Federal Circuit

held that Commerce’s statement of general policy that required “extraordinary

circumstances” to support an untimely request to withdraw a review request was

inconsistent with the regulation. 880 F.3d at 1345. Nevertheless, Commerce has

discretion “to apply a reasonableness test in making the decision whether to extend the
Consol. Court No. 19-00069 Page 27

deadline for filing a withdrawal notice.” Id. at 1345. The Federal Circuit also noted the

history of Commerce’s regulation, recognizing the relevance to a party of knowing the

results of the immediately preceding review, if any, to a party’s decision to withdraw its

review request. See id. at 1339.

On March 9, 2018, after the 90-day deadline, Commerce issued the final results

in AR1. See Certain Passenger Vehicle and Light Truck Tires from the People’s

Republic of China, 83 Fed. Reg. 11,690 (Dep’t Commerce Mar. 16, 2018) (final results

of antidumping duty admin. review and final determination of no shipments; 2015–

2016).

On September 4, 2018, Commerce issued the Preliminary Results, announcing a

73.63 percent margin for the separate rate respondents. 83 Fed. Reg. at 45,895.

Subsequently, in October and November 2018, several respondents attempted to

withdraw their review requests and asked Commerce to rescind their respective

administrative reviews. I&D Mem. at 2 & n.3 (citation omitted). Relevant to this

discussion, Winrun, Linglong, Hengyu, and Mayrun submitted withdrawal and rescission

requests. See Withdrawal of Request for AD Admin. Review and Request for

Rescission (Oct. 2, 2018), PR 239, CR 306–07, CJA Tab 37; Ext. of Time to File

Withdraw[a]l of Request for AD Admin. Review and Request for Rescission (Oct. 9,

2018) (“Mayrun Withdrawal Request”), PR 245, CJA Tab 38; GDLSK Respondents’

Request to Extend Time to File Withdrawal of Review Requests and Request for

Rescission of Review (Oct. 25, 2018), PR 251, CJA Tab 39; Withdrawal of Request for

Admin. Review and Request for Rescission (Nov. 6, 2018), PR 254, CJA Tab 41.
Consol. Court No. 19-00069 Page 28

In the Final Results, Commerce denied the requests for withdrawal filed by

separate rate respondents after the Preliminary Results. I&D Mem. at 8–9. Commerce

noted that the requests were made approximately nine months after the expiration of

the 90-day deadline and six months after the publication of the final results in AR1. Id.

at 9. Commerce further explained that the agency

has expended considerable resources in the preliminary phase of this
review, including but not limited to, the selection of mandatory
respondents, the analysis of extensive information regarding separate
rate eligibility for 16 companies, the evaluation of company-specific
information regarding ownership, sales processes, financial
statements, and factors of production, and the selection of surrogate
country and surrogate values. Moreover, the petitioner objected to the
separate rate respondents’ request to withdraw their requests for
review.

Id.

Commerce acknowledged that, pursuant to Glycine, it cannot require

“extraordinary circumstances” to support an untimely withdrawal request, but that the

agency maintains discretion to deny untimely requests. Id. Commerce further found

that this case raised concerns that it could devote “considerable time and resources in

the review, and then the party withdraws its request[] once it ascertains that the results

of the review are not likely to be in its favor.” Id.

B. Parties’ Contentions

Plaintiffs and Mayrun contend that a series of factors weighed in favor of granting

the withdrawal requests. First, Plaintiffs and Mayrun contend that Commerce should

have granted the withdrawal requests because the AR1 final results were not

announced until two months after the 90-day deadline. Pls.’ Mem. at 37; Mayrun’s

Mem. at 20. Second, Plaintiffs and Mayrun argue that Commerce did not expend
Consol. Court No. 19-00069 Page 29

significant resources investigating the separate rate respondents but instead

“improperly bootstrapped all of its administrative efforts” in support of its conclusion that

it expended significant time and resources reviewing the respondents at issue. Pls.’

Mem. at 38–39; see also Mayrun’s Mem. at 16. Third, Plaintiffs argue that Commerce

inappropriately relied on USW’s objection to the withdrawal requests. Pls.’ Mem. at 40.

Fourth, Mayrun argues that the agency’s delay in selecting mandatory respondents

prejudiced Mayrun by delaying its withdrawal request. See Mayrun’s Mem. at 20–21.13

Plaintiffs also contend that although Commerce stated it did not rely on the

“extraordinary circumstances” standard struck down in Glycine, the agency applied an

equivalent standard by not allowing the parties to withdraw. Pls.’ Reply at 16, 18.

The Government contends that the separate rate respondents did not submit

withdrawal requests until nine months after the 90-day deadline expired and the

Preliminary Results had been issued. Gov’t’s Resp. at 15. The Government contends

that the separate rate respondents sought to withdraw their review requests over six

months after Commerce published the final results in AR1, compared to Glycine, in

which Commerce published the results of the prior administrative review one day before

the parties sought to withdraw. Id. at 17.

13
Mayrun also argues that Commerce unreasonably denied its withdrawal request
because it only reviewed one respondent, see Mayrun’s Mem. at 21–23, and that
respondent’s rate was not representative, see id. at 23–24. The court has previously
addressed the substance of these arguments. Moreover, they bear no logical
connection to Mayrun’s arguments against Commerce’s denial of Mayrun’s untimely
withdrawal request.
Consol. Court No. 19-00069 Page 30

According to the Government, Commerce was not required to quantify the

resources allocated to individual respondents to support its conclusion that the agency

had expended significant time and resources in this review. Id. at 18–19. In the

Government’s view, the separate rate respondents had sufficient information to decide

whether to withdraw in December 2017 (after Commerce had placed CBP data “for

respondent selection on the record”) or in April 2018 (when Commerce “published its

respondent selection memorandum”) such that Commerce’s delay in selecting

mandatory respondents did not prejudice Mayrun’s decision to request withdrawal. Id.

at 20–21.

Finally, the Government contends that, in Glycine, the Federal Circuit affirmed

that Commerce has “wide discretion” in determining whether to extend the 90-day

deadline. Id. at 14. The Government argues that the Federal Circuit did not truncate

Commerce’s discretion to assess the reasonableness of an untimely withdrawal

request. Id.

C. Commerce’s Denial of the Untimely Withdrawal Requests was
Reasonable

The regulations provide that Commerce may extend the time limit to request the

withdrawal of a review request beyond 90 days if “it is reasonable to do so.” 19 C.F.R.

§ 351.213(d)(1). Here, Commerce explained why it determined that it was not

reasonable to grant an extension of approximately nine months.

First, Commerce considered the relationship of the withdrawal requests to the

timing of the final results in AR1 and concluded that, because those final results

preceded the requests by six months, they were too attenuated to weigh in favor of
Consol. Court No. 19-00069 Page 31

granting the requests. See I&D Mem. at 9. Indeed, Plaintiffs and Mayrun do not

address how the AR1 final results, published in March 2018, support the

reasonableness of extending the withdrawal deadline by an additional six months

beyond the issuance of those results. Cf. id. (noting that “the withdrawal requests were

filed . . . approximately six months after publication of the final results for [AR1]”).

Second, Commerce’s delay in selecting mandatory respondents similarly fails to

support Mayrun’s argument for extending the time for it to withdraw its review request.

See Mayrun’s Mem. at 20–21. As with the previous argument, Mayrun has not

articulated how Commerce’s delayed selection of mandatory respondents, which

occurred on April 12, 2018, supports granting Mayrun an extension until October 2018

to withdraw its review request.

Third, Commerce noted that USW objected to the withdrawal requests favored

denying the requests. See I&D Mem. at 9. While Plaintiffs are correct that USW did not

request that these respondents be reviewed in the first instance, see Pls.’ Mem. at 39–

40, Commerce simply noted USW’s objection at the end of a list of reasons for rejecting

the late request and nothing suggests that USW’s objection was decisive in the matter.

Fourth, Plaintiffs argue that Commerce was required to identify the resources

expended for each respondent to support rejecting a particular withdrawal request, see

Pls.’ Mem. at 38, and Mayrun argues that all investigative efforts with respect to Mayrun

took place prior to the 90-day deadline, see Mayrun’s Mem. at 18–19. Nothing in the

statute or regulations requires Commerce to measure the reasonableness of a

withdrawal request against the resources spent investigating the individual requesting
Consol. Court No. 19-00069 Page 32

respondent, particularly over the course of that respondent’s lengthy delay prior to

submitting the withdrawal request. Cf. GODACO Seafood Joint Stock Co. v. United

States, 44 CIT ___, ___, 435 F. Supp. 3d 1342, 1358 (2020) (“Reasonableness, as set

out in 19 C.F.R. § 351.213(d)(1), is the only legally applicable standard that Commerce

may apply in determining whether to extend the time limit for parties to file withdrawal

requests of administrative reviews.”) (citation omitted).

Finally, Plaintiffs contend that Commerce effectively applied the “extraordinary

circumstances” standard that the Federal Circuit found unlawful in Glycine. Pls.’ Reply

at 16, 18. To the contrary, Commerce acknowledged the inapplicability of that higher

standard and provided a reasoned basis for declining to extend the time period to

withdraw. See I&D Mem. at 9. The agency also articulated its policy concern, that

being the same concern it articulated when adopting the regulation: Commerce must

have the ability to prevent a party from requesting a review and then withdrawing the

request “once it ascertains that the results of that review are not likely to be in its favor.”

Id.; see also Antidumping Duties; Countervailing Duties, 62 Fed. Reg. 27,296, 27,317

(Dep’t Commerce May 19, 1997) (final rule). Having waited not only for the final results

of the immediately preceding review, but also for the preliminary results of the instant

review, the separate rate respondents in this case were in a much different position than

the respondents at issue in Glycine.

For all of these reasons, the court sustains Commerce’s denials of the untimely

withdrawal requests as reasonable.
Consol. Court No. 19-00069 Page 33

III. Commerce’s Decision to Exclude Certain Data in Determining Surrogate
Values

A. Legal Framework

The statute provides that, in valuing factors of production, Commerce may

“disregard price or cost values without further investigation if the [agency] has

determined that broadly available export subsidies existed or particular instances of

subsidization occurred with respect to those price or cost values or if those price or cost

values were subject to an antidumping order.” 19 U.S.C. § 1677b(c)(5).

B. Additional Background

Commerce preliminarily selected Thailand as the primary surrogate country. See

Prelim. Decision Mem. at 15. However, “in calculating the import-based [surrogate

values],” Commerce disregarded import prices from India, Indonesia, and South Korea

because the agency had previously determined that these countries maintain “broadly

available, non-industry specific export subsidies.” Id. at 20 & n.71 (citations omitted).

For the Final Results, Commerce continued to exclude import prices from India,

Indonesia, and Korea in determining surrogate values. I&D Mem. at 18. Citing 19

U.S.C. § 1677b(c)(5) and CS Wind Vietnam Co. v. United States, 832 F.3d 1367 (Fed.

Cir. 2016), Commerce explained that it may disregard import values from certain

countries “without further investigation if [the agency] has determined that broadly

available export subsidies existed.” Id. at 19 & n.92. Commerce stated that the court

has previously found its “presumption-based approach” is not unreasonable. Id. at 18 &

n.94 (citation omitted). Commerce inferred “that all exporters from these countries may

have benefitted from these subsides.” Id. at 18
Consol. Court No. 19-00069 Page 34

C. Parties’ Contentions

Plaintiffs contend that substantial evidence does not support Commerce’s

determination that India, Indonesia, and South Korea maintain broadly available, non-

industry specific export subsidy programs. Pls.’ Mem. at 42. Plaintiffs also contend that

“CS Wind . . . only stands for the proposition that Commerce can presume (rebuttably)

benefits received under subsidies if the existence of these subsidies has otherwise

been established by substantial evidence.” Id. at 45. To that end, Plaintiffs contend,

evidence does not support “Commerce’s finding that export subsidies were generally

available in the countries at issue during AR2.” Id.

The Government contends that “Commerce adhered to its long-standing practice

of disregarding import prices” if the agency has reason to believe they are subsidized.

Gov’t’s Resp. at 30. The Government contends that “Plaintiffs misunderstand the

statute,” which permits “Commerce [to] disregard price or cost values without further

investigation if the [agency] has determined that broadly available export subsidies

existed.” Id. Thus, according to the Government, the agency was not required to

provide additional evidence of export subsidies. Id.

D. Substantial Evidence Supports Commerce’s Exclusion of Certain Import
Values in Determining Junhong’s Surrogate Values

Here, Commerce cited four prior administrative determinations in which the

agency found non-industry specific export subsidies to exist in the three countries at

issue. See Prelim. Decision Mem. at 20 n.71. While Plaintiffs correctly note that the

determinations in question occurred several years ago, Pls.’ Mem. at 43, they have not

presented any evidence indicating that the non-industry specific subsidies are no longer
Consol. Court No. 19-00069 Page 35

available or have been discontinued. Section 1677b(c)(5) expressly provides that,

“without further investigation,” Commerce may disregard such import prices if it “has

determined that broadly available export subsidies existed.” Plaintiffs’ mere speculation

regarding the passage of time does not obligate Commerce to further investigate the

export subsidies in question absent any evidence of change during that period.

Accordingly, Commerce reasonably determined to disregard the import prices from

India, Indonesia, and South Korea “without further investigation.” 19 U.S.C.

§ 1677b(c)(5).

CONCLUSION

In accordance with the foregoing, Commerce’s Final Results will be sustained.

Judgment will enter accordingly.

/s/ Mark A. Barnett
Mark A. Barnett, Judge

Dated: December 22, 2020
New York, New York