Slip Op. 09-83
UNITED STATES COURT OF INTERNATIONAL TRADE
__________________________________________
:
QINGDAO TAIFA GROUP CO., LTD., :
:
Plaintiff, :
:
v. : Before: Jane A. Restani, Chief Judge
:
UNITED STATES, : Court No. 08-00245
:
Defendant, : Public Version
:
and :
:
GLEASON INDUSTRIAL PRODUCTS, INC. :
and PRECISION PRODUCTS, INC., :
:
Defendant-Intervenors. :
__________________________________________:
OPINION
[Plaintiff’s motion for judgment on the agency record granted in part; remanded to Department
of Commerce regarding government control of plaintiff.]
Dated: August 11, 2009
Adduci, Mastriani & Schaumberg, LLP (Louis S. Mastriani and William C.
Sjoberg) for the plaintiff.
Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Franklin
E. White, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice (Stephen C. Tosini); Irene H. Chen, Office of the Chief Counsel for
Import Administration, U.S. Department of Commerce, of counsel, for the defendant.
Crowell & Moring LLP (Matthew P. Jaffe and Alexander H. Schaefer) for the
defendant-intervenors.
Restani, Chief Judge: This matter is before the court on plaintiff Qingdao Taifa
Group Co., Ltd.’s (“Taifa”) motion for judgment on the agency record pursuant to USCIT Rule
56.2. Taifa, a Chinese manufacturer of hand trucks and parts thereof, challenges the final
Court No. 08-00245 Page 2
determination of the United States Department of Commerce (“Commerce”) in the
administrative review of the antidumping duty order on hand trucks and certain parts thereof
from the People’s Republic of China (“PRC”), which assigned Taifa the PRC-wide dumping
margin based on total adverse facts available (“AFA”). See Hand Trucks and Certain Parts
Thereof from the People’s Republic of China; Final Results of 2005-2006 Administrative
Review, 73 Fed. Reg. 43,684 (Dep’t Commerce July 28, 2008) (“Final Results”). For the
reasons stated below, the court sustains Commerce’s final determination in part and rejects it in
part, and this matter will be remanded to the Department of Commerce to consider the
appropriate AFA margin.
BACKGROUND
In 2004, Commerce issued an antidumping duty order on hand trucks and certain
parts thereof from the PRC. See Notice of Antidumping Duty Order: Hand Trucks and Certain
Parts Thereof From the People’s Republic of China, 69 Fed. Reg. 70,122 (Dep’t Commerce Dec.
2, 2004) (“AD Order”). The AD Order applies to “assembled or unassembled” hand trucks and
defines a “complete or fully assembled hand truck” as having “at least two wheels” but excludes
“wheels and tires used in the manufacture of hand trucks.” Id. at 70,122. Commerce determined
that Taifa’s individual weighted-average dumping margin was 26.49%, as opposed to the PRC-
wide rate of 383.60%. Id. at 70,123. Commerce received requests for administrative reviews of
the AD Order for Taifa and other exporters for the period December 1, 2005, through November
30, 2006, and Commerce initiated a review in February 2007. See Initiation of Antidumping and
Countervailing Duty Administrative Reviews and Request for Revocation in Part, 72 Fed. Reg.
5005 (Dep’t Commerce Feb. 2, 2007).
Court No. 08-00245 Page 3
Taifa, the sole mandatory respondent, Hand Trucks and Certain Parts Thereof
from the People’s Republic of China; Preliminary Results, Partial Intent to Rescind and Partial
Rescission of the 2005-06 Administrative Review, 73 Fed. Reg. 2214, 2214 (Dep’t Commerce
Jan. 14, 2008) (“Preliminary Results”), submitted a separate rate certification and responses to
Commerce’s questionnaires stating that the government did not control or own any interest in
Taifa during the period of review (“POR”) (see App. of Docs. in Supp. of Pl.’s Mem. of P. & A.
in Supp. of Pl.’s Mot. for J. on the Agency R. (“Pl.’s App.”) Tab 1; Def.’s App. 13, 64; Def.-
Intervenors’ App. to Mem. of P. & A. in Opp’n to Pl.’s Mot. for J. on the Agency R. (“Def.-
Intervenors’ App.”) Tab 3, at 2–3). Domestic producers Gleason Industrial Products, Inc.
(“Gleason”) and Precision Products, Inc. (“Precision”), defendant-intervenors here, submitted
documents indicating that the Yinzhu Town Government owned a majority interest in Taifa.
(See Def.-Intervenors’ App. Tab 6.) Taifa also stated in its questionnaire responses that it did
not sell wheels with its hand trucks and therefore did not report any factors of production
(“FOP”) data for wheels. (See Def.’s App. 41, 56.) Commerce’s Preliminary Results, issued in
January 2008, applied an individual weighted-average dumping margin of 3.82% for Taifa, while
the PRC-wide rate was 383.60%. Preliminary Results, 73 Fed. Reg. at 2222.
Commerce conducted verification of Taifa from April 15 to April 18, 2008, and
issued its verification report on June 12, 2008. (Def.’s App. 81.) According to the report,
Commerce found production notices for subject merchandise that referenced wheels, and a Taifa
manager admitted that Taifa sold hand trucks and wheels together but did not attach the wheels
to avoid duties under the AD Order. (Id. at 93.) The report also stated that although Taifa
officials said that they had destroyed Taifa’s production notices and factory-out slips, Commerce
Court No. 08-00245 Page 4
found the documents, and that Taifa employees attempted to remove and hide pages from the
current production subledger. (Id. at 91–93.) Finally, the report stated that some documents
indicated that a collective called Qingdao Taifa Group Co. owned a majority of Taifa’s shares,
but other documents indicated that the Yinzhu Town Government owned those shares, and that
documents reflecting a 2003 transfer of the majority interest to other individuals were not
registered. (Id. at 83–87.) Commerce found no other evidence of government control. (Id. at
88.)
In two memoranda issued on July 14, 2008, Commerce concluded that it would
apply total AFA based on the information in the verification report. See Issues and Decision
Memorandum for the Antidumping Duty Administrative Review of Hand Trucks and Certain
Parts Thereof from the People’s Republic of China, A-570-891, POR 12/01/2005-11/30/2006, at
6 (July 14, 2008) (“Issues and Decision Memorandum”), available at
http://ia.ita.doc.gov/frn/summary/PRC/E8-17252-1.pdf; Application of Adverse Facts Available
for Qingdao Taifa Group Import and Export Co., Ltd. and Qingdao Taifa Group Co., Ltd. in the
Review of Hand Trucks and Certain Parts Thereof From the People’s Republic of China, A-570-
891, POR 12/01/05-11/30/06, at 11 (July 14, 2008) (“AFA Memorandum”), available at Pl.’s
App. Tab 6. In its July 28, 2008, Final Results, Commerce determined that Taifa failed to
cooperate with the review, applied total AFA, denied Taifa a separate rate, and assigned Taifa
the PRC-wide margin of 383.60%. Final Results, 73 Fed. Reg. at 43,686–88. Taifa now
challenges the Final Results.
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction pursuant to 28 U.S.C. § 1581(c). The court will uphold
Court No. 08-00245 Page 5
Commerce’s final determination in an antidumping investigation unless it is “unsupported by
substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C.
§ 1516a(b)(1)(B)(i).
DISCUSSION
I. Exhaustion of administrative remedies
Preliminarily, the Government argues that the court should not consider Taifa’s
claims because Taifa failed to exhaust its administrative remedies. (Def.’s Resp. to Taifa’s Mot.
for J. Upon the Administrative R. 10–12.) The Government contends that Taifa should have
addressed the application of AFA and the PRC-wide rate before Commerce by filing a case brief,
explaining its actions during verification, commenting on the verification report, or responding
to Gleason’s case brief, which argued that Commerce should apply total AFA based on Taifa’s
actions during verification. (Id.) The Government’s argument is unavailing.
The court “shall, where appropriate, require the exhaustion of administrative
remedies.” 28 U.S.C. § 2637(d). To exhaust its administrative remedies, a party usually must
submit a case brief “present[ing] all arguments that continue in [its] view to be relevant to
[Commerce’s] final determination or final results.” 19 C.F.R. § 351.309(c)(2); see Nakornthai
Strip Mill Pub. Co. v. United States, 558 F. Supp. 2d 1319, 1329 (CIT 2008). A party, however,
may seek judicial review of an issue that it did not raise in a case brief if Commerce did not
address the issue until its final decision, because in such a circumstance the party would not have
had a full and fair opportunity to raise the issue at the administrative level. LTV Steel Co. v.
United States, 985 F. Supp. 95, 120 (CIT 1997).
Here, the January 2008 Preliminary Results applied a low, separate rate of 3.82%
Court No. 08-00245 Page 6
for Taifa and did not rely on AFA. See Preliminary Results, 73 Fed. Reg. at 2219–22. Case
briefs were due June 20, 2008, and rebuttal briefs were due June 25, 2008. See Final Results, 73
Fed. Reg. at 43,685. Taifa did not file a case brief or rebuttal brief. See id. Commerce first
indicated that it would apply total AFA in the Issues and Decision Memorandum and AFA
Memorandum issued on July 14, 2008, and then applied total AFA and assigned Taifa the PRC-
wide rate of 383.60% in the Final Results issued later that month.1 See id. at 43,688; Issues and
Decision Memorandum at 6; AFA Memorandum at 11. Because the Preliminary Results were
favorable to Taifa, and Commerce did not address the AFA issue until after the deadline for case
briefs or the PRC-wide rate issue until the Final Results, Taifa did not have a fair opportunity to
challenge these issues at the administrative level. See Saha Thai Steel Pipe Co. v. United States,
828 F. Supp. 57, 59–60 (CIT 1993) (holding that a respondent was not required to file a case
brief or rebuttal brief to exhaust its administrative remedies where it had “received all the
remedy it sought from the preliminary determination, i.e., it received a very low company-
specific duty assessment,” but Commerce assigned a higher country-wide rate in the final
determination). Taifa is not required to predict that Commerce would accept other parties’
arguments and change its decision. The exhaustion doctrine therefore does not preclude the
court’s review of Taifa’s claims.
II. Application of AFA
Taifa claims that Commerce’s application of AFA based on Taifa’s decision not
to report FOP or sales data for wheels and Taifa’s conduct at verification was not supported by
1
Although Commerce’s verification report was issued before the deadline for case briefs,
the report did not conclude that Commerce would apply AFA, deny Taifa’s separate rate status,
or assign Taifa the PRC-wide rate.
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substantial evidence. (Mem. of P. & A. in Supp. of Pl.’s Mot. for J. on the Agency R. (“Pl.’s
Br.”) 12–18.) This claim lacks merit.
Commerce uses “facts otherwise available” in its determination if:
(1) necessary information is not available on the record, or
(2) an interested party . . .
(A) withholds information that [Commerce has requested],
(B) fails to provide such information by the deadlines for submission of
the information or in the form and manner requested, . . .
(C) significantly impedes a proceeding . . . , or
(D) provides such information but the information cannot be verified.
19 U.S.C. § 1677e(a). If Commerce “finds that an interested party has failed to cooperate by not
acting to the best of its ability to comply with a request for information,” Commerce “may use an
inference that is adverse to the interests of that party in selecting from among the facts otherwise
available” in its determination, id. § 1677e(b), and disregard information that the party
submitted,2 see id. § 1677m(d), (e)(4). Commerce may draw an adverse inference if it makes
[(1)] an objective showing that a reasonable and responsible importer would have
known that the requested information was required to be kept and maintained
under the applicable statutes, rules, and regulations[ and (2)] a subjective showing
that the respondent under investigation not only has failed to promptly produce
the requested information, but further that the failure to fully respond is the result
of the respondent’s lack of cooperation in either: (a) failing to keep and maintain
all required records, or (b) failing to put forth its maximum efforts to investigate
and obtain the requested information from its records.
Nippon Steel Corp. v. United States, 337 F.3d 1373, 1382–83 (Fed. Cir. 2003).
2
If Commerce “determines that a response to a request for information . . . does not
comply with the request, [Commerce] shall promptly inform the person submitting the response
of the nature of the deficiency and shall, to the extent practicable, provide that person with an
opportunity to remedy or explain the deficiency in light of the time limits” for the review before
disregarding the party’s responses and relying on AFA. Id. § 1677m(d). Taifa does not argue
that Commerce gave insufficient notice about the deficiencies in Taifa’s responses or an
inadequate opportunity to remedy or explain the deficiencies.
Court No. 08-00245 Page 8
A. Application of AFA based on Taifa’s failure to report information about wheels
Taifa argues that because the AD Order explicitly excludes “wheels and tires used
in the manufacture of hand trucks,” AD Order, 69 Fed. Reg. at 70,122, Commerce’s decision to
apply AFA because Taifa did not report information about hand truck wheels essentially
punishes Taifa for failing to provide information about non-subject merchandise (Pl.’s Br.
12–13). This argument fails because the AD Order encompasses “assembled or unassembled”
hand trucks and defines a “complete . . . hand truck” as having wheels. AD Order, 69 Fed. Reg.
at 70,122. Hand trucks that Taifa shipped with wheels to be attached later would constitute
unassembled hand trucks, which are subject merchandise under the AD Order. Wheels that need
only be attached to an otherwise complete hand truck shipped with the wheels are not separate
wheels used in the manufacturing process for hand trucks. Accordingly, Taifa was required to
report information about such wheels.
Although Taifa stated in its questionnaire responses that it did not sell wheels
with hand trucks and did not report any FOP data for wheels, Commerce found evidence that
Taifa sold and shipped unattached wheels with hand trucks. See AFA Memorandum at 7–9. At
verification, Commerce “collected production notices that were identifiable as being for models
that were subject to the [AD Order], and made reference to wheels.” (Def.’s App. 93.) A Taifa
manager admitted that “Taifa did not attach the wheels to the hand trucks sold to the United
States in order to avoid having to pay U.S. dumping duties on the wheels under the [AD Order].”
(Id.) Another Taifa manager stated that when customers order hand trucks with wheels, they
purchase “wheels from another supplier or from Taifa and that the wheels were not attached to
the hand trucks but were loaded in the shipping container with the hand trucks.” (Id. at 94.)
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Accordingly, Commerce properly relied upon “facts otherwise available” because
FOP information for wheels necessary to calculate normal value, U.S. price, and an accurate
dumping margin was not available on the record, and Taifa withheld requested information about
shipments of wheels with hand trucks.3 See 19 U.S.C. § 1677e(a)(1), (2)(A). Although by itself,
this conduct might not be sufficient to draw an adverse inference in selecting a final rate, it is
part of a course of conduct as discussed infra.4
B. Application of AFA based on Taifa’s conduct at verification
Taifa also challenges Commerce’s decision to apply AFA based on Taifa’s
conduct during verification. (Pl.’s Br. 13–15.) This challenge similarly fails.
According to the verification report, Commerce requested copies of the factory-
out slips for the POR, but Taifa’s production manager stated that Taifa immediately destroys the
slips after creating monthly summary sheets, and that Taifa had destroyed the summary sheets
3
Although Taifa provided information regarding U.S. wheels sales prior to verification in
its December 2007 response to Commerce’s fifth supplemental questionnaire, the information
did not link shipments of wheels with shipments of hand trucks and did not provide FOP data
necessary to calculate an accurate antidumping margin. (See Pl.’s App. Tab 3.)
4
Taifa asserts that Commerce applied AFA on an “exceedingly narrow factual basis,” as
Taifa sold [[ ]] hand trucks without wheels to U.S. customers and sold [[ ]] wheels
to its U.S. hand truck customers during the POR, and therefore only [[ ]] percent of Taifa’s
U.S. hand truck customers were wheel customers. (Confidential Reply Br. of Taifa 12.) Facts
relating to a small percentage of actual sales, however, may be used as the basis for an adverse
inference where the foreign producer admits it made such sales or it is otherwise established that
such sales were made. See Ta Chen Stainless Steel Pipe, Inc. v. United States, 298 F.3d 1330,
1339 (Fed. Cir. 2002) (affirming Commerce’s 30.95% dumping margin where the respondent
admitted making a sale with that margin but claimed the sale represented only 0.04% of its sales
during the POR). Because Taifa admitted that at least a small percentage of its sales involved
hand trucks shipped with wheels, and Taifa did not report the FOP data for those wheels,
Commerce could rely on those facts as some evidence to support an adverse inference.
Confidential Data Deleted
Court No. 08-00245 Page 10
and “any remaining documentation.” (Def.’s App. 91–92.) Commerce, however, “found several
stacks of old factory-out slips” and “pointed out to Taifa officials that the existence of these slips
contradicted” the manager’s statements. (Id. at 92.) Thirty minutes after Commerce’s initial
request, a Taifa senior accountant “finally said that they did maintain copies of the factory-out
slips, and he departed to get them.” (Id.) After Commerce officials asked to accompany the
senior accountant, however, “he stopped and reverted to his prior position that they do not have
any of the slips” for twenty minutes before agreeing to get the slips and to allow Commerce
officials to accompany him. (Id.)
Commerce also requested copies of the factory production notices for the POR,
but Taifa’s production manager stated that Taifa immediately destroys production notices. (Id.
at 91.) A Commerce official, however, “found numerous production notices with dates
extending back to and beyond the POR” in a Taifa office. (Id. at 93.) Taifa officials did not
answer the Commerce officials’ questions about the production notices. (Id.)
Additionally, Taifa officials did not immediately provide Taifa’s current, 2008
production subledger upon Commerce’s request. (Id. at 92.) Nonetheless, a Commerce official
saw the senior accountant attempt to put the 2008 production subledger in his pocket. (Id. at
92–93.) The Commerce official obtained the sublegder but discovered that pages had been
ripped out. (Id. at 93.) The Commerce official later retrieved the missing pages from a woman
who had attempted to leave the warehouse when the official arrived. (Id.)
A reasonable and responsible foreign producer would have known that it must
keep and maintain documents such as factory-out slips, production notices, and production
subledgers, and Taifa officials’ efforts to avoid producing the requested documents demonstrates
Court No. 08-00245 Page 11
that Taifa failed to put forth maximum efforts to investigate and obtain the documents. See
Nippon Steel, 337 F.3d at 1382–83. Although Commerce recovered the documents, Taifa’s false
statements and attempts to avoid producing the information significantly impeded Commerce’s
investigation. See Gerber Food (Yunnan) Co. v. United States, 491 F. Supp. 2d 1326, 1337 (CIT
2007) (“[A] party’s unresponsiveness and failure to cooperate prior to providing the needed and
verifiable information might significantly and unnecessarily impede the proceeding and waste
the Department’s resources.”). Taifa thus failed to cooperate with Commerce’s verification to
the best of its ability, and substantial evidence supported Commerce’s decision to apply adverse
inferences.
Taifa’s conduct at verification also supports Commerce’s decision to apply AFA
to all the facts relevant to calculating Taifa’s dumping margin, rather than merely to any facts
missing from the record.5 Because Taifa attempted to withhold or alter sales and production
documents that Commerce requested, Commerce properly concluded that the information that
Taifa provided was “incomplete and unreliable” and that no information on the record could be
used to calculate an accurate dumping margin for Taifa. Issues and Decision Memorandum at 6.
Commerce therefore could disregard all of the information Taifa provided, apply AFA to all of
the facts relevant to calculating Taifa’s dumping margin, and apply a substitute rate. See
5
Commerce often uses the term “total AFA” to refer to application of AFA “to the facts
respecting all of respondents’ sales encompassed by the relevant antidumping duty order,” rather
than the specific facts “for which information was not provided.” Shandong Huarong Mach. Co.
v. United States, 435 F. Supp. 2d 1261, 1265 n.2 (CIT 2006). Here, however, Commerce’s
application of total AFA also encompassed Taifa’s ownership status. Issues and Decision
Memorandum at 6. Because the court rejects Commerce’s AFA analysis regarding Taifa’s
ownership in the discussion of the PRC-wide rate infra, the court will not use the term “total
AFA” in this discussion.
Court No. 08-00245 Page 12
Shanghai Taoen Int’l Trading Co. v. United States, 360 F. Supp. 2d 1339, 1348 n.13 (CIT 2005)
(affirming Commerce’s decision to apply AFA to all of the facts relevant to calculating the
respondent’s margin where “core” information that it provided was not reliable).
III. Application of the PRC-wide rate as the AFA rate
Taifa also claims that Commerce’s selection of the PRC-wide rate as the AFA
rate was not supported by substantial evidence or in accordance with law. (Pl.’s Br. 8–11,
18–20.) This claim has merit.
In determining the AFA rate, Commerce may rely on information from “(1) the
petition, (2) a final determination in the investigation . . . , (3) any previous review . . . or
determination . . . , or (4) any other information placed on the record.” 19 U.S.C. § 1677e(b).
When relying on secondary information not obtained during the review, Commerce “shall, to the
extent practicable, corroborate that information from independent sources that are reasonably at
[its] disposal.” Id. § 1677e(c). The AFA rate should “be a reasonably accurate estimate of the
respondent’s actual rate, albeit with some built-in increase intended as a deterrent to non-
compliance,” not a punitive or unreasonably high rate “with no relationship to the respondent’s
actual dumping margin.” F.lli De Cecco di Filippo Fara S. Martino S.p.A. v. United States, 216
F.3d 1027, 1032 (Fed. Cir. 2000). Because an AFA rate must bear some relationship to the
respondent’s actual dumping margin, Commerce’s ability to apply the PRC-wide rate as a
respondent’s AFA rate is limited. See Gerber Food (Yunnan) Co. v. United States, 387 F. Supp.
2d 1270, 1287–88 (CIT 2005).
At present, Commerce applies a presumption of state control for a respondent in a
nonmarket economy (“NME”) country such as the PRC. See Sigma Corp. v. United States, 117
Court No. 08-00245 Page 13
F.3d 1401, 1404–05 (Fed. Cir. 1997); Shandong Huanri (Group) Gen. Co. v. United States, 493
F. Supp. 2d 1353, 1357 (CIT 2007).6 Under this presumption, a respondent receives the NME
country-wide rate unless it affirmatively demonstrates an absence of de jure and de facto
government control with respect to exports and is therefore entitled to a separate, company-
specific rate. See Sigma, 117 F.3d at 1405. Because the PRC-wide rate thus presumes
government control, Commerce may not apply the PRC-wide rate as the AFA rate where AFA is
warranted for sales and FOP data, but the respondent has established independence from
government control. Gerber, 387 F. Supp. 2d at 1287 (citing Shandong Huarong Gen. Group
Corp. v. United States, 27 CIT 1568 (2003)). In such a situation, there is no connection between
the PRC-wide rate and an estimate of the respondent’s actual rate. See id.
Accordingly, Commerce could not apply the PRC-wide rate to Taifa based on
Taifa’s failures to report FOP data for wheels or attempts to avoid producing requested
documents regarding sales and production at verification alone. Commerce could apply the
PRC-wide rate only if Taifa did not establish its de jure and de facto independence from
government control.
Here, Commerce’s Preliminary Results found an absence of de jure and de facto
government control,7 Preliminary Results, 73 Fed. Reg. at 2219, and Commerce’s verification
6
The court need not address the strength or effect of this presumption at this stage. As
China is evolving, however, it may be appropriate for Commerce to reevaluate its methodology
in this regard at some point. Presumptions cannot become an excuse for inadequate
investigation or assessment.
7
Evidence of absence of de jure government control “includes: (1) [a]n absence of
restrictive stipulations associated with an individual exporter’s business and export licenses;
(2) any legislative enactments decentralizing control of companies; or (3) any other formal
(continued...)
Court No. 08-00245 Page 14
report “noted no indication of government control” (Def.’s App. 88). Nevertheless, Commerce’s
Final Results applied the PRC-wide rate because Commerce could not verify documents
regarding Taifa’s ownership structure. See Final Results, 73 Fed. Reg. at 43,686; Issues and
Decision Memorandum at 4. Specifically, Commerce found that some documents listed the
Yinzhu Town Government as the holder of 51.42% of Taifa’s shares, but all other documents
identified a collective called Qingdao Taifa Group Co. as the owner of those shares.8 (See Def.’s
App. 83–87.) The documents that Taifa offered to show that the shares were divested in 2003
were unregistered.9 (Id. at 85–86.) Determining that Taifa failed to keep and maintain full and
7
(...continued)
measures by the government decentralizing control of companies.” Final Determination of Sales
at Less Than Fair Value: Sparklers From the People’s Republic of China, 56 Fed. Reg. 20,588,
20,589 (Dep’t Commerce May 6, 1991) (“Sparklers”); see also Coal. for the Pres. of Am. Brake
Drum & Rotor Aftermarket Mfrs. v. United States, 44 F. Supp. 2d 229, 242 (CIT 1999) (“Brake
Drum I”). Evidence of absence of de facto government control includes whether: (1) “each
exporter sets its own export prices independently of the government and other exporters;” (2)
“each exporter can keep the proceeds from its sales;” (3) “the Respondent has authority to
negotiate and sign contracts and other agreements;” and (4) “the Respondent has autonomy from
the government in making decisions regarding the selection of management.” Brake Drum I, 44
F. Supp. 2d at 243 (citing Notice of Final Determination of Sales at Less Than Fair Value:
Silicon Carbide from the People’s Republic of China, 59 Fed. Reg. 22,585, 22,587 (Dep’t
Commerce May 2, 1994) (“Silicon Carbide”)). Commerce preliminarily found that Taifa had
presented statements and documentation satisfying each form of evidence of absence of de jure
and de facto government control. Preliminary Results, 73 Fed. Reg. at 2219.
8
According to Taifa, the collective, not the government, owned the interest in Taifa, and
the references to the Yinzhu Town Government were due to drafting errors in some of the
documents and in others, because the government acted on behalf of the collective. (Def.’s App.
83–84.)
9
A 2003 Shares Transfer Agreement states that the 51.42% interest was transferred from
“Yingzhu People’s Government” to nine named individuals. (Id. at 70.) Taifa contends that this
agreement is unregistered because of the Qingdao Administration for Industry and Commerce’s
(“AIC”) bureaucratic delay in processing it. (Pl.’s Br. 19.) The other record supporting the
transfer is Taifa’s 2003 Articles of Association. (See Def.’s App. 85.) Although Taifa
(continued...)
Court No. 08-00245 Page 15
complete records documenting its ownership information, which a reasonable importer should
anticipate having to produce, Commerce applied AFA to the facts of Taifa’s control, denied
Taifa a separate rate, and applied the PRC-wide rate. Final Results, 73 Fed. Reg. at 43,686–88;
Issues and Decision Memorandum at 6.
Mere evidence that a town government may own shares in Taifa, however, is
insufficient to support Commerce’s application of the PRC-wide rate. Although local
government ownership is of some limited relevance to the analysis, government ownership is not
tantamount to government control.
The Federal Circuit has recognized that Commerce may apply an NME country-
wide rate, as opposed to a separate, company-specific rate, where a respondent is subject to
central government control. See Transcom, Inc. v. United States, 182 F.3d 876, 883 (Fed. Cir.
1999); Sigma, 117 F.3d at 1405. Nevertheless, the Federal Circuit has not addressed whether an
NME country-wide rate is appropriate where the respondent is subject to local or town
government control.
Two cases before this Court, however, have recognized that town government
control may be relevant. See Shandong Huanri, 493 F. Supp. 2d at 1360–64; Coal. for the Pres.
of Am. Brake Drum & Rotor Aftermarket Mfrs. v. United States, 318 F. Supp. 2d 1305, 1312–14
(CIT 2004) (“Brake Drum II”). The first, Brake Drum II, stated that Commerce’s “separate-rate
test should not be limited to proving absence of national-government ownership but should be
9
(...continued)
acknowledged that the 2003 Articles of Association “should be registered with the AIC” under
the Regulations of the People’s Republic of China on Administration of Registration of
Companies, Taifa asserts it neglected to register the document because the person responsible
resigned. (Id. at 63, 85.)
Court No. 08-00245 Page 16
applied to whatever level of governmental control is implicated.” 318 F. Supp. 2d at 1312. In
that case, Commerce had granted a separate rate to Shandong Laizhou Huanri Group General
Co. (“Huanri”), which was controlled by a village committee related to the town government.
Id. at 1306, 1313. Brake Drum II remanded for reconsideration based on the PRC’s Organic
Law of the Village Committee (“Village Committee Law”) that was not in the record, “which
may or may not be a promulgation of the central government and which may or may not provide
that government or a subordinate, even grass-roots village, government with ultimate, nonmarket
control.” Id. at 1314. The second case, Shandong Huanri, summarily found that substantial
evidence of de facto government control supported Commerce’s decision to apply the PRC-wide
rate to Huanri in a subsequent administrative review. 493 F. Supp. 2d at 1360–62, 1364.
These cases, however, must not be construed too broadly. They merely recognize
that Commerce may apply the PRC-wide rate where it finds that a town or other local
government exercises nonmarket control over a respondent’s business activities, and where a
promulgation of the PRC’s central government such as the Village Committee Law authorizes
the local government to exercise that type of control over the respondent. See id. at 1360–64;
Brake Drum II, 318 F. Supp. 2d at 1312, 1314. They do not hold that local government
ownership by itself is sufficient to support the application of a PRC-wide rate.
Indeed, as Commerce stated in the Preliminary Results, “government ownership
by itself is not dispositive in determining government control.” Preliminary Results, 73 Fed.
Reg. at 2219; see also Tapered Roller Bearings and Parts Thereof, Finished and Unfinished,
From the People’s Republic of China; Final Results and Partial Termination of Antidumping
Duty Administrative Review, 62 Fed. Reg. 6173, 6175 (Dep’t Commerce Feb. 11, 1997)
Court No. 08-00245 Page 17
(“Tapered Roller Bearings”) (noting that Commerce has “rejected [its prior] position that state
ownership per se eliminates the possibility of a company gaining a separate rate”). Commerce
previously has applied separate rates, rather than PRC-wide rates, in instances where a
government entity has an ownership interest in the respondent but does not exercise de facto
control over the respondent’s prices or export activities. See, e.g., Notice of Preliminary
Determination of Sales at Less Than Fair Value and Postponement of Final Determination:
Structural Steel Beams From The People’s Republic of China, 66 Fed. Reg. 67,197, 67,199
(Dep’t Commerce Dec. 28, 2001) (applying a separate rate to a company that was sixty-three
percent owned by a holding company wholly owned by a provincial government because there
was no evidence of de facto control); Silicon Carbide, 59 Fed. Reg. at 22,588 (applying separate
rates to companies allegedly owned by provincial governments because there was no evidence of
government manipulation of export prices or interference with their export business); see also
Issues and Decision Memorandum for the Antidumping Investigation of Certain New Pneumatic
Off-the-Road Tires from the People’s Republic of China, A-570-912, POR 10/1/2006-3/31/2007,
at 187–88 (July 7, 2008), available at http://ia.ita.doc.gov/frn/summary/PRC/E8-16156-1.pdf
(stating that “the mere existence of government-owned shares in the producer is not a basis for
denying separate rate status,” and that Commerce “looks beyond ownership in considering
whether there is de facto government control”). Commerce also has applied separate rates in
instances where a government entity owns shares of the respondent’s stock but does not vote the
shares or otherwise exercise operational control over the respondent’s business. See, e.g., Notice
of Final Determination of Sales at Less Than Fair Value: Disposable Pocket Lighters From the
People’s Republic of China, 60 Fed. Reg. 22,359, 22,360–61 (Dep’t Commerce May 5, 1995)
Court No. 08-00245 Page 18
(“Disposable Pocket Lighters”); Notice of Final Determination of Sales at Less Than Fair Value:
Certain Cased Pencils From the People’s Republic of China, 59 Fed. Reg. 55,625, 55,626–29
(Dep’t Commerce Nov. 8, 1994).
Reliance on evidence of de facto government control beyond a mere local
government ownership interest is consistent with the purposes of the antidumping statute, which
“recognizes a close correlation between a nonmarket economy and government control of prices,
output decisions, and the allocation of resources.” Sigma, 117 F.3d at 1405–06. The statute
applies special rules to NME countries because prices and costs are not reliable in valuing goods
from NME countries “in view of the level of intervention by the government in setting relative
prices.” ICC Indus., Inc. v. United States, 812 F.2d 694, 697 (Fed. Cir. 1987); see 19 U.S.C.
§ 1677(18)(A) (defining an NME country as a country which “does not operate on market
principles of cost or pricing structures, so that sales of merchandise in such country do not reflect
the fair value of the merchandise”); see also id. § 1677b(c). Thus, a government’s de facto
interference with a respondent’s export activities or prices or operational control over the
respondent may render the respondent’s prices and costs unreliable. See Tapered Roller
Bearings, 62 Fed. Reg. at 6175; Disposable Pocket Lighters, 60 Fed. Reg. at 22,363. But a town
or local government’s ownership interest in a respondent, without more, does not render the
respondent’s prices and costs inherently unreliable or sufficiently linked to a China-wide rate.
As this Court has recognized, “[t]he essence of a separate rates analysis is to determine whether
the exporter is an autonomous market participant, or whether instead it is so closely tied to the
communist government as to be shielded from the vagaries of the free market.” Fujian Mach. &
Equip. Imp. & Exp. Corp. v. United States, 178 F. Supp. 2d 1305, 1331 (CIT 2001). The court
Court No. 08-00245 Page 19
concludes, therefore, that Commerce may not apply an NME country-wide rate where there is
evidence that a town government had an ownership interest in the respondent, but there is no
evidence that the government exercised de facto control over the respondent’s prices, export
activities, or operations.
Here, Commerce’s decision to apply AFA to the facts of Taifa’s control because
Taifa’s ownership documents could not be verified was apparently based on the flawed
assumption that town government ownership alone establishes government control sufficient to
trigger application of a China entity rate. Here Commerce applied the China entity rate without
making a final determination about the presence or absence of de facto Chinese government
control over Taifa’s operations. Although Commerce has not cited any indications that the
Yinzhu Town Government, or any other government entity, controlled Taifa’s prices or export
activities or exercised any operational control over Taifa, or any indications of a connection
between the central government and Taifa’s control, the court remands the matter to Commerce
for a proper analysis of de facto control.
CONCLUSION
For the foregoing reasons, Taifa’s motion for judgment on the agency record is
granted in part and denied in part. The court hereby remands this matter to Commerce to
determine whether a government entity exercised de facto nonmarket control over Taifa
sufficient to link the China entity rate to Taifa. If Commerce concludes based on substantive
evidence that such government entity control over Taifa exists, Commerce may apply the PRC-
Court No. 08-00245 Page 20
wide rate of 383.60% to Taifa.10 If Commerce concludes otherwise, Commerce must calculate a
separate, substitute AFA rate for Taifa.
Commerce shall file its remand determination with the court within sixty days of
this date. Taifa, Gleason, and Precision have eleven days thereafter to file objections, and
Commerce will have seven days thereafter to file its response.
/s/ Jane A. Restani
Jane A. Restani
Chief Judge
Dated: This 11th day of August, 2009.
New York, New York.
10
Taifa did not challenge Commerce’s calculation of the 383.60% PRC-wide rate before
the court. Accordingly, although that rate was a minimally corroborated petition rate based on
AFA, see Notice of Final Determination of Sales at Less Than Fair Value: Hand Trucks and
Certain Parts Thereof from the People’s Republic of China, 69 Fed. Reg. 60,980, 60,982, 60,984
(Dep’t Commerce Oct. 14, 2004), amended by 69 Fed. Reg. 65,410 (Dep’t Commerce Nov. 12,
2004), Taifa has waived any challenge to the calculation of the rate, see AL Tech Specialty Steel
Corp. v. United States, 366 F. Supp. 2d 1236, 1245 (CIT 2005) (“Arguments that are not
properly preserved are waived.”).