Hontex Enterprises, Inc. v. United States

SLIP OP. 05-116

UNITED STATES COURT OF INTERNATIONAL TRADE
______________________________
:
HONTEX ENTERPRISES, INC., :
D/B/A LOUISIANA PACKING CO., :
:
Plaintiff, :
:
v. :
: Before: Richard K. Eaton, Judge
UNITED STATES, :
:
Defendant, : Court No. 00-00223
:
and : PUBLIC VERSION
:
CRAWFISH PROCESSORS ALLIANCE, :
THE LOUISIANA DEPARTMENT OF :
AGRICULTURE AND FORESTRY, :
AND BOB ODOM, COMMISSIONER, :
:
Defendant-Intervenors. :
______________________________:

OPINION AND ORDER

Dated: August 31, 2005

[United States Department of Commerce’s antidumping duty review
determination on crawfish tail meat from China remanded]

Coudert Brothers LLP (John M. Gurley and Matthew J.
McConkey), for the plaintiff.

Peter D. Keisler, Assistant Attorney General, Civil
Division, United States Department of Justice; David M. Cohen,
Director, Commercial Litigation Branch, Civil Division, United
States Department of Justice; Jeanne E. Davidson, Deputy
Director, International Trade Section, Commercial Litigation
Branch, Civil Division, United States Department of Justice
(David S. Silverbrand); of counsel, Office of the Chief Counsel
for Import Administration, United States Department of Commerce
(Marisa Beth Goldstein), for the defendant.

Adduci, Mastriani & Schaumberg, L.L.P. (James Taylor, Jr.
and Will E. Leonard), John C. Steinberger, of counsel, for the
defendant-intervenors.
Court No. 00-00223 Page 2

Eaton, Judge: This matter is before the court following a

second remand to the United States Department of Commerce

(“Commerce” or the “Department”). In Hontex Enterprises, Inc. v.

United States, 28 CIT __, 342 F. Supp. 2d 1225 (2004) (“Hontex

II”), this court remanded Commerce’s findings contained in the

Final Results of Determination Pursuant to Court Remand (Dep’t

Commerce Aug. 12, 2003) (“First Remand Determination”) for

further analysis and explanation. Now before the court is

Commerce’s determination on remand. See Final Results of

Determination Pursuant to Court Remand (Dep’t Commerce Oct. 18,

2004) (“Second Remand Determination”). The court has

jurisdiction pursuant to 28 U.S.C. § 1581(c) (2000) and 19 U.S.C.

§ 1516a(a)(2)(B)(iii) (2000). For the reasons set forth below,

this matter is again remanded to Commerce to take action in

conformity with this opinion.

BACKGROUND

The facts of this case have been related in detail in

previous opinions of this court. See Hontex Enters., Inc. v.

United States, 27 CIT __, __, 248 F. Supp. 1323, 1325–28 (2003)

(“Hontex I”); Hontex II, 28 CIT at __, 342 F. Supp. 2d at

1226–28. The facts relevant to this inquiry are as follows.
Court No. 00-00223 Page 3

On October 29, 1998, Commerce initiated a review of the

antidumping duty order covering crawfish tail meat from the

People’s Republic of China (“PRC”). See Initiation of

Antidumping and Countervailing Duty Admin. Review, Requests for

Revocation in Part and Deferral of Admin. Review, 63 Fed. Reg.

58,009 (ITA Oct. 29, 1998). As part of that review, Ningbo

Nanlian Frozen Foods Company (“NNL”) and Huaiyin Foreign Trading

Company (5) (“HFTC5”) submitted questionnaire responses. See,

e.g., Questionnaire Resp. of [NNL] and La. Packing Co., Pub. R.

Doc. 19 (Dec. 8, 1998); Questionnaire Resp. of [HFTC5], Pub. R.

Doc. 24 (Dec. 22, 1998). After reviewing the questionnaire

responses, Commerce had questions concerning the relationship

between NNL and HFTC5. See Letter from Commerce to law firm of

Arent Fox Kintner Plotkin & Kahn of 1/12/00, Pub. R. Doc. 141.

These questions arose when it was found that a “Mr. Wei”—who was

listed on NNL’s business license as its Vice General Manager—had

signed several HFTC5 documents and had represented himself to

United States officials as being in charge of HFTC5’s crawfish

export business to the United States. Id. NNL responded to these

concerns by stating that, while Mr. Wei did work for both NNL and

HFTC5 during the period of review, his work for NNL was not

related to his work for HFTC5. See Letter from law firm of Arent

Fox Kintner Plotkin & Kahn to Commerce of 1/31/00, Conf. R. Doc.
Court No. 00-00223 Page 4

21.

Commerce then informed NNL and HFTC5 that it would conduct

verification of their questionnaire responses and noted that it

would be exploring the relationship among Mr. Wei, NNL, and

HFTC5. Commerce specifically asked that Mr. Wei be present at

verification to answer questions. See NNL Verification Outline,

Pub. R. Doc. 176 Attach. at 3. (“Please make certain that Mr. Wei

is available for this portion of the verification.”). At NNL’s

verification, various NNL officials, Mr. Edward Lee (part-owner

of NNL), and Mr. Wei all answered questions about Mr. Wei’s

relationship with both NNL and HFTC5. See Verification Report

for [NNL] in the Antidumping Duty Review of Freshwater Crawfish

Tail Meat (crawfish) from the PRC, Pub. R. Doc. 188 at 5–10 (“NNL

Verification Memo”).

While NNL participated in verification, HFTC5 did not. See

Freshwater Crawfish Tail Meat (crawfish) from the PRC Admin.

Review: Attempts to conduct verification at HFTC5, Pub. R. Doc.

187. Thus, Commerce was unable to directly verify the

information HFTC5 provided about Mr. Wei’s relationship with that

company. It is not in dispute, however, that Mr. Wei performed

various tasks for HFTC5 during the period of review. See
Court No. 00-00223 Page 5

Supplemental Questionnaire Resp. of NNL and LA Packing Co., Pub.

R. Doc. 169 Attach. at 2–6; see also Freshwater Crawfish Tail

Meat (crawfish) from the PRC Admin. Review: Meeting with U.S.

Customs Service, American Embassy, Beijing PRC, Pub. R. Doc. 191

(“Customs Memo”).

After analysis of the questionnaire responses and the

information collected at verification, Commerce determined that

there was a “web of control relationships” between HFTC5 and NNL

and so “collapsed” the companies and treated them as single

entity. See Relationship of [NNL] and [HFTC5], Pub. R. Doc. 218

at 9 (“Relationship Memo”). Because HFTC5 had not participated

in verification, Commerce determined that it was to receive the

PRC-wide antidumping duty rate. Id. Because NNL was to be

“collapsed” with HFTC5, it received the PRC-wide rate as well.

Id.; see also Freshwater Crawfish Tail Meat From the PRC: Final

Results of Admin. Antidumping Duty and New Shipper Reviews, and

Final Rescission of New Shipper Review, 65 Fed. Reg. 20,948,

20,949 (ITA Apr. 19, 2000) (“Final Results”). The PRC-wide

antidumping duty rate was ultimately established to be 201.63%.

See Final Results, 63 Fed. Reg. at 20,949.
Court No. 00-00223 Page 6

Plaintiff1 then commenced this action challenging various

aspects of Commerce’s determinations contained in the Final

Results. See generally Hontex I. After review of the Final

Results the court determined that: (1) while the methodology that

Commerce used to determine whether NNL and HFTC5 should be

collapsed was a proper interpretation of the antidumping statute

as far as it went, a more complete analysis was needed, see

Hontex I, 27 CIT at __, 248 F. Supp. 2d at 1343-44; and (2)

substantial evidence did not support Commerce’s determination

that a “web of control relationships” existed between NNL and

HFTC5 such that Commerce could “collapse” the companies and treat

them as a single entity. See id. at __, 248 F. Supp. 2d at 1345.

The court remanded the action to Commerce so that it could more

fully explain its non-market economy (“NME”) collapsing

methodology and identify specific record evidence supporting its

determination that NNL and HFTC5 should be collapsed.

On remand, Commerce revisited its collapsing methodology and

again found that NNL and HFTC5 should be collapsed and treated as

1
As a domestic importer of the subject merchandise,
Hontex is an “interested party” within the meaning of 19 U.S.C. §
1677(9)(A) (2000), and is entitled to challenge Commerce’s
determination pursuant to 19 U.S.C. § 1516a(a)(2) (2000). In
addition to being a domestic importer of the subject merchandise,
Hontex is also part-owner of NNL.
Court No. 00-00223 Page 7

a single entity. See First Remand Determination at 3. Once

again, Plaintiff questioned Commerce’s determination and urged

the court to reject the results of the First Remand

Determination.

In Hontex II the court found that Commerce’s NME-collapsing

methodology was a reasonable interpretation of the antidumping

statute. Hontex II, 28 CIT at __, 342 F. Supp. 2d at 1234. The

court also found, however, that Commerce’s determination that NNL

and HFTC5 should be collapsed was not supported by substantial

evidence and so again remanded the matter for further proceedings

in accordance with that opinion. Id. at __, 342 F. Supp. 2d at

1246.

Commerce published the results of its analysis of the second

remand on October 18, 2004. In the Second Remand Determination

Commerce continued to find that NNL and HFTC5 should be collapsed

because “[a]fter re-examining and weighing all of the record

evidence, we continue to find that there was a significant

potential for manipulation of prices and export decisions and,

therefore, that HFTC5 and [NNL] should be collapsed and subject

to the same antidumping duty rate.” Second Remand Determination

at 1–2. Plaintiff again contests Commerce’s findings and, thus,
Court No. 00-00223 Page 8

this matter is again before the court.

STANDARD OF REVIEW

When reviewing a final determination in an antidumping or

countervailing duty investigation, “[t]he court shall hold

unlawful any determination, finding, or conclusion found . . . to

be unsupported by substantial evidence on the record, or

otherwise not in accordance with law . . . .” 19 U.S.C. §

1516a(b)(1)(B)(i). “Substantial evidence is ‘such relevant

evidence as a reasonable mind might accept as adequate to support

a conclusion.’” Huaiyin Foreign Trade Corp. (30) v. United

States, 322 F.3d 1369, 1374 (Fed. Cir. 2003) (quoting Consol.

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial

evidence is “more than a mere scintilla.” Consol. Edison, 305

U.S. at 229. The existence of substantial evidence is determined

“by considering the record as a whole, including evidence that

supports as well as evidence that ‘fairly detracts from the

substantiality of the evidence.’” Huaiyin, 322 F.3d at 1374

(quoting Atl. Sugar, Ltd. v. United States, 744 F.2d 1556, 1562

(Fed. Cir. 1984)).
Court No. 00-00223 Page 9

DISCUSSION

I. COMMERCE’S COLLAPSING METHODOLOGY

As previously noted, in Hontex II this court found

Commerce’s NME collapsing methodology, as set out in the Second

Remand Determination, to be a reasonable interpretation of the

antidumping statute. See Hontex II, 28 CIT at __, 342 F. Supp.

2d at 1234 (“Commerce has satisfied the court’s remand

instructions by setting out its NME collapsing methodology.”).

In essence, Commerce uses a methodology similar to the one it

uses for collapsing market economy companies.2 See Hontex I, 27

CIT at __, 248 F. Supp. 2d at 1338–40 (setting out Commerce’s

market economy collapsing methodology); see also 19 U.S.C. §

1677(33),3 19 C.F.R. § 351.102(b)4, .401(f)5. Using this

2
Commerce’s market economy collapsing methodology, now
contained in its regulations, has been found to be a reasonable
interpretation of the antidumping statute. See 19 C.F.R. §
351.401(f); Koenig & Bauer-Albert AG v. United States, 24 CIT
157, 160, 90 F. Supp. 2d 1284, 1287 (2000) (citing Asociacion
Colombiana de Exportadores de Flores v. United States, 22 CIT
173, 201, 6 F. Supp. 2d 865, 893 (1998); Queen’s Flowers de
Colom. v. United States, 21 CIT 968, 971–72, 981 F. Supp. 617,
622–23 (1997)) (“Commerce’s collapsing practice has been approved
by the court as a reasonable interpretation of the antidumping
statute.”).
3
19 U.S.C. § 1677(33) provides, in relevant part:

The following persons shall be considered to be
“affiliated” or “affiliated persons”: . . .

(F) Two or more persons directly or
indirectly controlling, controlled by, or
Court No. 00-00223 Page 10

under common control with, any person.

(G) Any person who controls any other person
and such other person.

For purposes of this paragraph, a person shall be
considered to control another person if the person is
legally or operationally in a position to exercise
restraint or direction over the other person.
4
19 C.F.R. § 351.102(b) provides:

“Affiliated persons” and “affiliated parties” have the
same meaning as in section 771(33) of the Act [19
U.S.C. § 1677(33)]. In determining whether control
over another person exists . . . the Secretary will
consider the following factors, among others: corporate
or family groupings; franchise or joint venture
agreements; debt financing; and close supplier
relationships. The Secretary will not find that
control exists on the basis of these factors unless the
relationship has the potential to impact decisions
concerning the production, pricing, or cost of the
subject merchandise or foreign like product. The
Secretary will consider the temporal aspect of a
relationship in determining whether control exists;
normally, temporary circumstances will not suffice as
evidence of control.
5
19 C.F.R. § 301.401(f) provides:

(1) In general. In an antidumping proceeding under this
part, the Secretary will treat two or more affiliated
producers as a single entity where those producers have
production facilities for similar or identical products
that would not require substantial retooling of either
facility in order to restructure manufacturing
priorities and the Secretary concludes that there is a
significant potential for the manipulation of price or
production.

(2) Significant potential for manipulation. In
identifying a significant potential for the
manipulation of price or production, the factors the
Court No. 00-00223 Page 11

methodology Commerce must first determine whether two or more

entities are “affiliated.” Two or more entities are affiliated

where they share various control relationships whereby one entity

is “legally or operationally in a position to exercise restraint

or direction over” the other and that such relationship provides

one entity the “significant potential for the manipulation of

price or production” of the other. See Hontex I, 27 CIT at __,

248 F. Supp. 2d at 1339 (citing 19 C.F.R. § 351.401(f), Marine

Harvest (Chile) S.A. v. United States, 26 CIT 1295, 1298 n.8, 244

F. Supp. 2d 1364, 1368 n.8 (2002); Certain Cut-To-Length Carbon-

Quality Steel Plate Prods. From Indon., 64 Fed. Reg. 41,206,

41,209 (ITA July 29, 1999) (prelim. determination)). In addition

to price and production decisions, in the case of NME entities,

the “significant potential for . . . manipulation” extends to

exporters and their export decisions. Hontex II, 28 CIT at __,

Secretary may consider include:

(i) The level of common ownership;

(ii) The extent to which managerial employees
or board members of one firm sit on the board
of directors of an affiliated firm; and

(iii) Whether operations are intertwined,
such as through the sharing of sales
information, involvement in production and
pricing decisions, the sharing of facilities
or employees, or significant transactions
between the affiliated producers.
Court No. 00-00223 Page 12

342 F. Supp. 2d at 1234. In support of a determination that two

companies are affiliated, Commerce must also consider the

“temporal aspect” of the relationship as “normally, temporary

circumstances will not suffice as evidence of control.” 19

C.F.R. § 351.102(b); see Hontex II, 28 CIT at __, 342 F. Supp. 2d

at 1233. Once two entities are determined to be affiliated, and

the significant potential for manipulation has been found,

Commerce may then “collapse” them and give then a single

antidumping duty margin. See 19 C.F.R. § 351.401(f)(1); Hontex

II, 28 CIT at __, 342 F. Supp. 2d at 1232–33 (quoting 19 C.F.R. §

351.401(f)(1)).

As the court has previously found the collapsing methodology

used in this action to be a reasonable interpretation of the

antidumping statue, and as Commerce has continued to use that

methodology in the Second Remand Determination, the only question

remaining is whether Commerce’s conclusion that NNL and HFTC5

should be collapsed is supported by substantial evidence.

II. COLLAPSING NNL AND HFTC5

A. Commerce’s Theory of Affiliation

In the Second Remand Determination it is not entirely clear

what theory Commerce is relying on to support its finding that
Court No. 00-00223 Page 13

NNL and HFTC5 are affiliated such that collapsing them into a

single entity and giving them a single antidumping duty margin

would be proper. At oral argument, however, counsel for Commerce

clarified the Department’s reasoning. Specifically, counsel

stated that NNL and HFTC5 were affiliated because Mr. Lee had the

potential to control the export and/or pricing decisions of both

companies. According to Commerce’s theory, Mr. Lee exercised

control over NNL as its part-owner and over HFTC5 through Mr.

Wei. As explained by counsel:

Court: Did Mr. Lee control both companies?

Counsel: Mr. Lee did not specifically control both
companies. However, Mr. Wei Wei had the
potential to control both companies and . . .
Mr. Wei Wei is an agent of Mr. Lee.
Therefore, if you follow the logic yes, Mr.
Lee would have a potential to control both
companies through Mr. Wei Wei.

Court: Please tell me which one it is, if it’s Mr.
Lee in control, if it’s HFTC5 in control.
Tell me what the Commerce Department’s theory
is. . . . I understand that Mr. Wei Wei
exercised control, but is it the Commerce
Department’s position that he was exercising
control on his own behalf[?]

Counsel: No, on Mr. Lee’s behalf . . . .

Court: So if you would just tell me what the theory
is here.

Counsel: Okay. Mr. Lee owns Louisiana Packing
Company. He also owns [NNL]. Therefore he
clearly controls both of those companies.
His agent, Mr. Wei Wei, had the potential to
control and make pricing decision on behalf
Court No. 00-00223 Page 14

of HFTC5. Therefore, if you follow the logic
that Mr. Wei Wei is acting as Mr. Lee’s
agent, Mr. Lee has the potential to control
pricing decisions for both companies.

Court: For both companies?

Counsel: Yes, Your Honor.

Oral Argument Transcript of 3/30/2005 (“Transcript”) at 33.

B. The Affiliation of NNL and HFTC5

Following Commerce’s collapsing methodology, it is first

necessary to determine whether NNL and HFTC5 were affiliated

through a control relationship. As previously noted, Commerce

stated that it was adhering to the statutory definitions of

affiliation and control. See First Remand Determination at 5–6

(quoting 19 U.S.C. § 1677(33)(F), (G)); Relationship Memo at 4

(quoting 19 U.S.C. § 1677(33)(F), (G)). Thus, since it is

Commerce’s finding that NNL and HFTC5 were affiliated because Mr.

Lee “controlled” them both, the court begins its analysis by

reviewing whether the record supports such a finding.

1. Mr. Lee and Control of NNL

As stated by counsel for Commerce at oral argument it is the

Department’s determination that Mr. Lee directly controlled NNL.

See Transcript at 33:17–19. In support of this finding Commerce

points to several pieces of evidence, including that Mr. Lee was
Court No. 00-00223 Page 15

the sole owner of Louisiana Packing which was, in turn, part-

owner of NNL. See First Remand Determination at 22. Next,

Commerce cites evidence that Mr. Wei, at Mr. Lee’s direction,

performed various tasks for NNL, including signing the joint

venture documents that formed NNL and inspecting several

shipments of crawfish tail meat. Id. In addition, Mr. Lee was

present at, and an active participant in, NNL’s verification.

Id. at 22–23. The court agrees that Commerce’s determination

that Mr. Lee “controlled” NNL is supported by substantial.

Indeed, there can be little doubt that Mr. Lee was able to

directly control NNL’s pricing and/or export decisions as part-

owner of that company. See, e.g., Letter from Arent Fox Kintner

Plotkin & Kahn to Commerce of 3/20/00, Conf. R. Doc. 34, Ex. 3

(“I [(Mr. Lee)] informed the Department of Commerce verifiers

that the prices negotiated for crawfish sales between [NNL] and

Louisiana Packing Company were conducted solely by Mr. Lin Zhong

Nan and myself on the telephone.”).

2. Mr. Lee and Control of HFTC5

The court next examines whether Mr. Lee was able to control

HFTC5. As stated by counsel for Commerce at oral argument, the

Department’s theory in this regard is that Mr. Lee indirectly
Court No. 00-00223 Page 16

controlled HFTC5 through Mr. Wei.6 See Transcript at 33:19–23.

Counsel further explained the significance of Mr. Lee being able

to control HFTC5 and NNL by stating that “there was a potential

for price manipulation between [the] two companies and that

potential arises from . . . Mr. Wei . . . .” Id. at 31:16–18.

While Commerce’s theory of control hinges on Mr. Lee’s

relationship with Mr. Wei, what is missing from Commerce’s

6
[[

]]
Court No. 00-00223 Page 17

analysis is any evidence tending to suggest that Mr. Lee was

“legally or operationally in a position to exercise restraint or

direction” over Mr. Wei’s activities at HFTC5. First, absent

from this analysis are any of the normal indicia of affiliation

between Mr. Lee and HFTC5 set out in the regulations. See 19

C.F.R. § 351.102(b). That is, there is no suggestion that Mr.

Lee or his family members or his companies have any ownership

interest in HFTC5. Rather, Commerce’s analysis relies entirely

on the relationship between Mr. Lee and Mr. Wei. This analysis,

though, falls short. An examination of the record reveals that

there is neither: (1) evidence of Mr. Lee ever actually

exercising control over Mr. Wei at HFTC5; nor (2) any evidence of

Mr. Lee’s potential to control Mr. Wei’s activities at that

company. Indeed, while Commerce provides great detail as to Mr.

Wei’s activities on behalf of HFTC5, none of this evidence links

Mr. Lee to Mr. Wei’s activities at that company. See, e.g., NNL

Verification Memo, Pub. R. Doc. 188 at 5–7 (detailing questions

posed to Mr. Wei about his relationship with HFTC5); see also

Customs Memo, Pub. R. Doc. 191 (detailing Mr. Wei’s contacts with

the United States Customs Service). The only evidence on the

record of anyone having control over Mr. Wei’s activities at

HFTC5 is that he took his orders from a person identified as
Court No. 00-00223 Page 18

HFTC5’s “general manager.”7 See, e.g., Letter from law firm of

Arent Fox Kintner Plotkin & Kahn to Commerce of 1/31/00, Pub. R.

Doc. 146 at 5 (“[A]ll actions undertaken by Mr. Wei with respect

to HFTC (5) in 1998 were done with explicit instructions from the

General Manager of HFTC (5). He did not take, and had no

authority to take, any unilateral or independent actions with

regard to HFTC (5) . . . .”); NNL Verification Memo, Pub. R. Doc.

188 at 5 (“Mr. Wei explained that the general manager of HFTC5

would sometimes contact him for assistance because he was

familiar with the crawfish business, spoke English, and had

contacts with many of HFTC5’s U.S. customers. Upon HFTC5’s

request, Mr. Wei would contact U.S. customers on HFTC5’s behalf

by writing letters and faxes and by making phone calls.”

(citation omitted)); id. at 6 (“[A]t the request of the general

manager of HFTC5, Mr. Wei contacted U.S. Customs to seek its

assistance.”); id. at 6–7 (“Mr. Wei stated that the General

Manager [of] HFTC5 believed the 91.5% duty rate was HFTC5’s alone

and that using [Mr. Wei’s] stamp would help Customs identify

genuine HFTC5 shipments. Mr. Wei stated that HFTC5’s general

7
The court notes that this is not a new observation. In
Hontex I the court found that “the evidence shows that Mr. Wei’s
actions on behalf of [NNL and HFTC5] were performed at the
direction of some other person–for HFTC5 it was the ‘General
Manager[]’ . . . .” Hontex I, 27 CIT at__, 248 F. Supp. 2d at
1346.
Court No. 00-00223 Page 19

manager asked him to obtain the stamp . . . .”). Indeed,

counsel’s comments at oral argument highlight the flaw in

Commerce’s reasoning: there is simply no evidence on the record

of this antidumping review that Mr. Wei was acting as Mr. Lee’s

“agent” at HFTC5. While there is amble evidence that Mr. Lee was

acquainted with Mr. Wei and that Mr. Wei was working as Mr. Lee’s

“agent” at NNL, this evidence does not support a further

inference that Mr. Wei was working as Mr. Lee’s “agent” at HFTC5.

Therefore, substantial evidence does not support the conclusion

that Mr. Lee “controlled” HFTC5.8

CONCLUSION

Because the court finds that Commerce’s determination that

Mr. Lee was in a position to “control” HFTC5 is not supported by

substantial evidence, the court cannot find that Commerce’s

determination that NNL and HFTC5 should be collapsed is

justified. Therefore, this matter is again remanded to Commerce

to either: (1)(a) find that Mr. Lee did not control HFTC5 within

the meaning of 19 U.S.C. § 1677(33)(F) & (G), and (b) find that

NNL and HFTC5 were not affiliated, and (c) find that NNL and

8
As the court does not find that substantial evidence
supports Commerce’s conclusion that Mr. Lee controlled HFTC5 the
court need not, at this time, address Commerce’s determination
with respect to the “temporal” aspect of Mr. Lee’s control of
HFTC5. See Hontex II, 28 CIT at __, 342 F. Supp. 2d at 1233.
Court No. 00-00223 Page 20

HFTC5 should not be collapsed and given a single antidumping

margin, and (d) find that NNL is entitled to a separate company-

specific antidumping margin and calculate that margin using the

verified information on the record; or (2)(a) re-open the record

in order to gather additional evidence of Mr. Lee’s control

relationship with HFTC5 during the period of review, and (b)

place such additional information on the record, and (c) conduct

an analysis that takes into account any such new evidence,

including the temporal aspect of any such new evidence. The

results of Commerce’s review are due on November 29, 2005,

comments are due on December 29, 2005, and replies to such

comments are due on January 9, 2006.

________________________
Richard K. Eaton

Dated: August 31, 2005
New York, New York