stating court’s disagreement with Government’s “stance” that “Commerce lacked the opportunity to consider” issue raised by plaintiff in litigation
How later courts described this case
- stating court’s disagreement with Government’s “stance” that “Commerce lacked the opportunity to consider” issue raised by plaintiff in litigation
Written by the judges who cited it.
The opinion
Slip Op. 08-89
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS
________________________________________
:
NINGBO DAFA CHEMICAL FIBER CO., LTD.; :
CONSOLIDATED FIBERS, INC.; :
FIBERTEX CORPORATION; and :
STEIN FIBERS, LTD., :
:
Plaintiffs, :
: Court No.: 07-00236
v. :
:
UNITED STATES OF AMERICA, :
:
Defendant, :
:
and :
:
DAK AMERICAS LLC; NAN YA PLASTICS :
CORP. AMERICA; and WELLMAN INC., :
:
Defendant-Intervenors. :
________________________________________________
Dated: September 2, 2008
Held: Plaintiffs’ Motion for Judgment Upon the Agency Record is
denied. The United States Department of Commerce’s determination is
affirmed. Case dismissed.
deKieffer & Horgan, (Gregory S. Menegaz, John J. Kenkel); for
Ningbo Dafa Chemical Fiber Co., Ltd.; Consolidated Fibers, Inc.;
Fibertex Corporation; and Stein Fibers, Ltd.; Plaintiffs.
Gregory G. Katsas, Assistant Attorney General, Commercial
Litigation Branch, Civil Division, United States Department of
Justice, Jeanne E. Davidson, Director, Commercial Litigation
Branch, Civil Division, United States Department of Justice,
Reginald T. Blades, Jr., Assistant Director, Commercial Litigation
Court No. 07-00236 Page 2
Branch, Civil Division, United States Department of Justice,
Stephen C. Tosini, Trial Attorney, Commercial Litigation Branch,
Civil Division, United States Department of Justice; Of Counsel:
Ahran Kang, Attorney, Office of the Chief Counsel for Import
Administration, Department of Commerce, for the United States,
Defendant.
Kelley Drye Collier Shannon, (Paul C. Rosenthal and David C. Smith,
Jr.) for DAK Americas LLC, Nan Ya Plastics Corp. America, and
Wellman, Inc., Defendant-Intervenors.
OPINION
TSOUCALAS, Senior Judge: This matter is before the Court on a
motion for judgment upon the agency record brought by plaintiffs
Ningbo Dafa Chemical Fiber Co., Ltd.; Consolidated Fibers, Inc.;
Fibertex Corporation; and Stein Fibers, Ltd. (“Plaintiffs” or
“Ningbo”) pursuant to USCIT Rule 56.2. Plaintiffs challenge
certain aspects of the final determination of the U.S. Department
of Commerce (“Commerce” or “Defendant”) in the antidumping duty
investigation of polyester staple fiber (“PSF”) from the People’s
Republic of China. Final Determination of Sales at Less Than Fair
Value and Partial Affirmative Determination of Critical
Circumstances: Certain Polyester Staple Fiber from the People’s
Republic of China, 72 Fed. Reg. 19,690 (Apr. 19, 2007) (“Final
Determination”). Domestic industry companies DAK Americas LLC, Nan
Ya Plastics Corp. America, and Wellman, Inc. join as Defendant-
Intervenors.
For the reasons set forth below, the United States Department
Court No. 07-00236 Page 3
of Commerce’s determination is affirmed.
JURISDICTION
The Court has jurisdiction over this matter pursuant to 19
U.S.C. § 1516a (a) (2000) and 28 U.S.C. § 1581 (c) (2000).
STANDARD OF REVIEW
When reviewing the final results in antidumping administrative
reviews, the Court will uphold Commerce’s determination 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) (2000).
Substantial evidence is “more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Universal Camera Corp. v. NLRB, 340 U.S.
474, 477 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)).
Substantial evidence “is something less than the weight of the
evidence, and the possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative
agency's finding from being supported by substantial evidence.”
Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620 (1966)
(citations omitted).
Court No. 07-00236 Page 4
BACKGROUND
A petition seeking initiation of an antidumping duty
investigation of Certain Polyester Staple Fiber from the People’s
Republic of China was filed with Commerce on June 23, 2006. Public
Record (“PR”) Doc. No. 1. Commerce published a Notice of
Initiation in the Federal Register on July 20, 2006. PR Doc. No.
12.
Ningbo Dafa, a privately held company organized under the laws
of China, recycles Polyethylene terephthalate (“PET”) bottle flake1
into white, green and brown-colored PSF for sale domestically and
for export throughout the world.2 See Pls.’ Rule 56.2 Mem. in
Supp. of Mot. for J. upon the Agency R. (“Pls.’ Br.”) at 2; Def.’s
Resp. to Pls.’ Mot. for J. upon the Administrative R. (“Commerce
Br.”) at 4.3 PET flake is purchased by Ningbo in a variety of
colors, and the color (or colors) of PET flake used in the
production of PSF determines the PSF’s ultimate color.4 See
1
Ningbo describes PET bottle flake as “cut pieces of
plastic water bottles and the like.” Pls.’ Br. at 3.
2
Ningbo notes that PET flake constitutes nearly 100% of
the raw material by weight used in production of its recycled PSF
covered by the scope of this investigation. See Pls.’ Br. at 3.
3
Unless otherwise noted, reference to all documents herein
shall refer to the public version of those documents.
4
Therefore, by and large, white PSF is made from white PET
flake, green PSF from green PET flake and brown PSF from brown
PET flake. See Commerce Br. at 4.
Court No. 07-00236 Page 5
Commerce Br. at 4.
The parties agree that white PET flake is more expensive to
purchase than green PET flake, while green is more expensive to
purchase than brown PET flake. See PR Doc. No. 261; Commerce Br. at
4. Similar to the PET flake cost hierarchy, once PET flake is
processed into PSF, white PSF is sold at higher prices than green
PSF, while green PSF is sold at higher prices than brown PSF. Id.
On September 18, 2006, Commerce recommended that in selecting
respondents in this investigation it is most appropriate to choose
the exporters or producers that account for the largest volume of
subject merchandise during the period of investigation ("POI"),
based on volume of total metric tons shipped.5 The three exporters
or producers thus selected were Ningbo, Cixi Jiangnan Chemical
Fiber Co., Ltd., and Far Eastern Industries Ltd. See PR Doc. No.
77.
On September 20, 2006, Commerce sent its antidumping duty
questionnaire to Ningbo Dafa, requiring the company to report its
factors of production and any market economy purchases made by the
company during the POI. See Investigation of Certain Polyester
Staple Fiber from the People's Republic of China: Issues and
Decision Memorandum (“I&D Memo”) at 58 (April 10, 2007). In its
November 8, 2006 response, Ningbo Dafa reported on its market-
5
The POI here is October 1, 2005, to March 31, 2006.
Court No. 07-00236 Page 6
economy purchases (“MEPs”) of PET bottle flake, but did not include
a breakdown by color. PR Doc. No. 120; Confidential Record (“CR”)
Doc. No. 57.
On November 11, 2006, Commerce issued Ningbo Dafa a
supplemental questionnaire that requested MEP worksheets for each
product type sold in the United States during the POI. PR Doc. No.
129. On December 6, 2006, Ningbo Dafa submitted its supplemental
questionnaire response, including an MEP worksheet that did not
provide a breakdown by color of PET flake purchases, and stated
that for PSF, the finished “color is a simple function of the color
of the material input used, not the quantity of material used.” PR
Doc. No. 153; CR Doc. No. 69. Commerce relied on Ningbo’s numbers
in this response for its preliminary determination. See Preliminary
Determination of Sales at Less Than Fair Value and Partial
Affirmative Determination of Critical Circumstances: Certain
Polyester Staple Fiber from the People's Republic of China, 71 Fed.
Reg. 77,373 (Dec. 26, 2006) (“Preliminary Determination”).
On January 31, 2007, Commerce sent Ningbo a MEP supplemental
questionnaire asking again for Ningbo Dafa to specifically identify
the “quantities, values and average-unit values of your market
economy purchases of gross flake, segregated by color.”6 PR Doc.
6
Commerce noted that Ningbo Dafa’s previous December 2006
submission did not submit MEP data in the manner requested. The
supplemental questionnaire stated that “[t]he Department is
(continued...)
Court No. 07-00236 Page 7
No. 208. Ningbo’s response stated that “since the raw material
purchase invoices do not always specify the colors and since the
company does not track inventory by specific colors in its raw
material inventory ledgers, it is not possible to complete the MEP
spreadsheet by segregating MEP purchases by color.” PR Doc. No.
218.
Commerce conducted an on-site verification of Ningbo Dafa
during February 2007. During this visit company officials informed
Commerce that Ningbo Dafa needs to be able to make all colors of
PSF at anytime and that in order to do so Ningbo maintains a large
inventory of flake (two to three months) at all times to ensure the
proper colors of gross flake are available. PR Doc. No. 232.
In its Final Determination Commerce determined that PSF from
the PRC is being, or is likely to be, sold in the United States
at less than fair value (“LTFV”) as provided in section 735 of
the Tariff Act of 1930, as amended ("the Act"). Commerce
assigned Ningbo a weighted-average dumping margin rate of 4.86%,
up from the rate of 4.39% assigned Ningbo in the Preliminary
Determination.7
6
(...continued)
providing Ningbo Dafa with a final opportunity to provide a
market economy purchase spreadsheet for gross flake, inclusive of
the color.” PR Doc. No. 208.
7
Ningbo notes that “[i]n the final determination in the
underlying investigation, margins dropped dramatically for all
(continued...)
Court No. 07-00236 Page 8
Oral argument for this case was held before this Court on
April 14, 2008.
DISCUSSION
I. Color-Specific Flake Valuation
As referenced above PET flake constitutes the main raw
material used by Ningbo in production of recycled PSF. Commerce
determined that because color-specific PET flake purchases had a
direct effect upon the price of the finished PSF, that therefore
this information was necessary to calculate normal value
accurately. Commerce Br. at 11. With the exception of a few MEP
invoices which identified color, Ningbo did not (Ningbo argues
that it could not) report color-specific PET flake costs.8 Pls.’
Br. at 14.
Plaintiffs argue that color-specific PET flake valuation was
not necessary for an accurate calculation of Ningbo’s normal
value, and therefore cannot be the basis for Commerce using
“facts available.” See Id. at 23. The Court will address
initially the premise of Plaintiffs’ argument (i.e., whether
Commerce reasonably determined that color-specific flake
7
(...continued)
respondents except for Ningbo Dafa due to many general
adjustments and a few specific adjustments to the antidumping
margins.” Pls.’ Br. at 16.
8
Ningbo notes that it purchases PET flakes in dozens of
shades of colors, including whites, greens, browns, blues, reds
and mixed color batches. Pls.’ Br. at 5.
Court No. 07-00236 Page 9
valuation was necessary for an accurate calculation of Ningbo’s
normal value).9
The crux of Plaintiffs’ argument as to this issue is that
Commerce “disregarded [the color-specific] requirement” for other
PET raw materials used by the other mandatory respondents
manufacturing colored PSF in this investigation. Id. at 23-24.
The implication by Ningbo seems to be therefore that color-
specific valuation is not necessary for an accurate calculation
of normal value in its case. By way of example, Ningbo notes
that Far Eastern Textiles and Cixi Jiangnan both reported
consumption of various types of PET fiber waste and Commerce
valued these materials according to a single average rupee per
kilogram value of such fiber imports reported in the Indian
Import Statistics of the World Trade Atlas (“WTA”), irrespective
of color. See Id. at 24; I&D Memo (Comment 7). Ningbo also
points out that Commerce recognized that the tariff number of the
fiber imports, HTS 5505.10, is not color-specific. See Pls.’ Br.
at 24; I&D Memo (Comment 7).
Plaintiffs also note that Commerce “frequently encounters
[the] situation in non-market economy cases . . . where the
surrogate values available . . . do not permit an exact match to
9
Commerce’s use of “facts available” based on its
determination that color-specific valuation was necessary will be
addressed in the following section of this opinion.
Court No. 07-00236 Page 10
the physical properties of a particular respondent’s inputs.”
Pls.’ Br. at 25. Plaintiffs state that Commerce, therefore,
routinely fulfills its statutory mandate to select the “best
available information” to value factors of production by resort
to less specific references for surrogate values. Id. For this
proposition, Plaintiffs cite to Polyethylene Retail Carrier Bag
Comm. v. U.S., 29 CIT 1418 (2005), stating that there the Court
upheld the Department’s preference for less color-specific WTA
import statistics over domestic color-specific Indian prices.
Pls.’ Br. at 25.
For its part, Commerce responds that the Plaintiffs’
assertion that color-specific cost reporting is not essential to
normal value is belied by the fact that Ningbo’s PSF pricing was
dependent upon the color of the PET flake used during production.
See Commerce Br. at 11. Commerce also points out that fellow PSF
producer Cixi Jiangnan noted that recognizing color-specific
values for PSF “could improve the accuracy of the antidumping
margin calculations.”10 Id. at 12; PR Doc. No. 74.
Commerce states that Plaintiffs’ contention that Commerce
considered color-specific valuation unnecessary in other
investigations is unavailing. Commerce Br. at 13. As to
Polyethylene Retail Carrier Bag Comm., 29 CIT 1418, Defendant
10
Cixi Jiangnan noted that, in its case, different colors
of PSF are marketed and sold differently and the materials are
acquired differently. PR Doc. No. 74; Commerce Br. at 12.
Court No. 07-00236 Page 11
distinguishes the case by stating that color was not an important
factor in valuing consumption of ink (which was the factor in
issue in that case). Commerce Br. at 13.
The essential element of Commerce’s determination therefore
is that because the color of PET flake affected the price of the
finished PSF product, it was reasonable to request color-specific
flake values. The Court finds that Commerce’s determination as
to this point is supported by substantial evidence in the record
and the Court will not re-weigh the evidence.
Commerce correctly points out that as a general rule, it
“has the discretion and ‘authority to determine the extent of
investigation and information it needs.’” Polyethylene Retail
Carrier Bag Comm., 29 CIT at 1433 citing PPG Indus. Inc. v.
United States, 978 F.2d 1232, 1238 (Fed. Cir. 1992); Commerce Br.
at 11. The colors of PET flake that Ningbo produces (white,
green and brown) are bought at different prices and the
corresponding finished recycled PSF is sold at different prices.
The three PSF colors Ningbo produces are in a sense three
distinct products and it is therefore reasonable that Commerce
would request color-specific valuation of Ningbo’s PET flake
purchases that comprise the finished PSF products.
Ningbo’s argument here, resting as it does on certain of
Commerce’s determinations in this investigation as to Far Eastern
Textiles and Cixi Jiangnan, with nothing more, is not persuasive.
Court No. 07-00236 Page 12
The facts relevant to the Far Eastern Textiles and Cixi Jiangnan
determinations are different from the case at hand, and so it is
not surprising that certain aspects of those two determinations
are different from this one.11
II. Application of “Facts Available”
In calculating an antidumping duty margin rate, if
“necessary information is not available on the record . . .
[Commerce] shall, subject to [19 U.S.C. § 1677m(d)], use the
facts otherwise available” in calculating the rate. 19 U.S.C. §
1677e(a).
As referenced above, Commerce applied “facts available” in
calculating the value of Ningbo’s PET flake purchases because it
determined that color-specific information was necessary to
calculate normal value accurately and Ningbo did not provide
color-specific information.12 See Final Determination. Ningbo
11
Although Commerce does not directly address the Far
Eastern Textiles and Cixi Jiangnan valuations in its brief, the
Court notes that the circumstances relevant to the determinations
of those two companies, including Far Eastern Textiles’ and Cixi
Jiangnan’s MEPs, are not directly analogous to the circumstances
here. See I&D Memo.
12
Commerce having found that total adverse facts available
was not warranted here, stated that “because Ningbo Dafa failed
to provide information in the form and manner requested by the
Department and did not suggest alternative forms in which it was
able to submit the requested information, the Department, in
accordance with sections 776(a)(2)(B) and 782(c)(1) of the Act,
has applied partial facts available to Ningbo Dafa's PET flake.”
(continued...)
Court No. 07-00236 Page 13
Dafa did not make color-specific data available in the initial
questionnaire nor subsequent correspondence because it did not
maintain color-specific records. See Commerce Br. at 14.
There is therefore a basic two-prong analysis revolving
around the necessity of the information and its availability on
the record. The Court found supra that Commerce’s determination,
that color-specific prices of Ningbo’s PET flake were necessary
to calculate an accurate antidumping margin, was a reasonable
one, and therefore prong one is satisfied. As to the second
prong, the parties concede that there is not any significant
color-specific information on the record, and so this prong is
also satisfied. Consequently the application of “facts
available” by Commerce is lawful and reasonable under the
circumstances herein.
III. Commerce’s PET Flake Valuation Methodology
When factors of production are purchased from market economy
suppliers and paid for in market economy currency, as is the case
here, Commerce will generally value these factors using the
market economy price. See 19 C.F.R. § 351.408(c)(1); Commerce
Br. at 3.
12
(...continued)
I&D Memo at 58.
Court No. 07-00236 Page 14
As discussed above, only a small percentage of Ningbo’s MEP
invoices of PET flake indicated a color, and where a color was
indicated it was white or green. None of Ningbo’s MEP invoices
indicated the color brown (the lowest cost flake). In explaining
the valuation process it took concerning Ningbo’s MEP invoices,
Commerce noted that under
“partial facts available, because Ningbo Dafa
did have some invoices reflecting white and
green PET flake, we have used these prices to
calculate a surrogate value for these
purchases of flake. Because Ningbo Dafa's
invoices do not reflect a value for brown PET
flake, the Department has subtracted the
quantities and values contained on the
invoices for white and green PET flake from
the total quantity and value (excluding
Thailand and South Korea) of all Ningbo
Dafa's market economy purchases of PET
flake.” (Citations omitted)
I&D Memo at 58-59.
In other words, the few invoices that indicated white and
green provided Commerce with values from which to extrapolate the
total value of Ningbo’s white and green PET flake purchases.
Accordingly, the great majority of Ningbo’s MEP invoices (i.e.,
the invoices that did not identify any PET flake color
whatsoever) were assigned the color brown by Commerce.
Commerce quotes the Statement of Administration Action
Accompanying the Uruguay Round Agreements Act (“SAA”) as saying
that “neither Commerce nor the Commission must prove that the
facts available are the best alternative information. Rather, the
Court No. 07-00236 Page 15
facts available are information . . . which are reasonable to
use under the circumstances.” H.R. REP . NO . 103-316, at 869-70
(1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4198-99; Commerce
Br. at 15.
Commerce notes that if it finds remedial responses to be
unsatisfactory, it “may, subject to section 1677m(e), disregard
‘all or part of the original and subsequent responses’ in favor
of facts otherwise available.” SKF USA Inc. v. United States, 116
F. Supp. 2d 1257, 1268, 24 CIT 822, 835 (2000); Commerce Br. at
14.
Ningbo argues that the Department’s choice of facts
available was not “neutral” because “it significantly increases
the overall cost of Ningbo Dafa’s key raw material over the
verified audited actual total cost.” Pls.’ Br. at 36. Plaintiffs
criticize Commerce for, among other things, assigning
approximately 95 percent of the flake tonnage in the MEP invoices
to the color brown, and in so doing assigning brown PET flake,
the lowest cost color, the average value of all PET flake. Id. at
36-38. Ningbo argues that “POI production and sales quantities
of brown PSF were well under 10 percent.” Id. at 22.
Commerce does not address Ningbo’s production and sales
quantities numbers directly but instead argues that Ningbo
“provides an array of calculations in an attempt to demonstrate
that the facts used were adverse [but that] these speculative
Court No. 07-00236 Page 16
calculations were not proffered during the investigation, and
thus, Commerce lacked the opportunity to consider them.”
Commerce Br. at 16. Although the Court does not agree with
Commerce’s stance here, it does concur with Commerce’s
alternative argument that Ningbo’s calculations fail to
demonstrate that the use of average prices for white, green and
brown flakes created higher dumping margins than if Ningbo Dafa
had provided actual PET flake purchase prices by color. Id. at
17.
The Court finds that the approach Commerce took was a
reasonable one under the circumstances. Having no way to
reconstruct the actual PET flake colors associated with those MEP
invoices that did not indicate any color, Commerce used what
little information it had to fashion its approach, factoring in
the non-color indicating MEPs as brown. The white and green PET
flake prices were simply an average of the white- and green-
specific invoices, respectively. Commerce then divided the
average price by the net quantity of known white and green PET
flake purchases. This part of the methodology is straight-
forward as Commerce simply used the only definite color-specific
information it had on the record. For its part, Ningbo does not
put forth a credible argument that these prices are somehow
unrepresentative of white or green prices as a whole. The Court
therefore finds that Commerce’s approach here was reasonable and
Court No. 07-00236 Page 17
supported by substantial evidence on the record.
The assigning of the remainder of Ningbo’s MEP invoices
(i.e., the invoices that did not identify any PET flake color
whatsoever) the color brown, raises a different analysis. Here,
absent any information to the contrary, Commerce selected as a
default the color brown (the least expensive of the PET flake
colors). Because there is no definitive way to tell which PET
flake colors these non-color identifying invoices can actually be
attributed to, the Court finds that Commerce’s approach here
under the circumstances was reasonable and supported by
substantial evidence on the record. While it is true that
Commerce could have selected alternate methods to allocate the
non-color identifying invoices by color, it is also true that
because of the lack of information on the record that these
alternatives would also be imperfect surrogates. Ultimately, the
record does not indicate a clearly better method for valuation
than the one used by Commerce.
IV. The Reliability of the Color-Specific Invoices
Plaintiffs argue that Commerce’s “reliance on a handful of
[MEP] supplier invoices to value Ningbo Dafa’s PET bottle flake
cost on a color-specific basis” was not reasonable nor in
accordance with the law. See Pls.’ Br. at 27.
Plaintiffs note that Commerce is directed by statute to
Court No. 07-00236 Page 18
select the “best available information” for valuing the factors
of production in the calculation of normal value. See Id.; 19
U.S.C. § 1677b(c)(1). While Ningbo concedes that there is a
preference for the valuation of raw materials from qualifying
market suppliers where possible (19 C.F.R. § 351.408(c)(1)), it
notes that there is a qualification to this preference in that
the market sources must be in sufficient quantities relative to
the overall quantity purchased so as to be reliable and
representative of that overall quantity.13 Pls.’ Br. at 27-28
citing Antidumping Methodologies: Market Economy Inputs, Expected
Non-Market Economy Wages, Duty Drawback; and Request for
Comments, 71 Fed. Reg. 61716 (Oct. 19, 2006). Ningbo explains
that it did not have market purchases in any specific color that
equaled or exceeded five percent of its MEPs.14 Pls.’ Br. at 29.
Therefore, Ningbo concludes, the few color-specific prices cannot
lawfully be attributed to all of production. Id. at 31.
Commerce counters that it need not use surrogate data when a
factor is purchased from a market economy supplier in a market
13
Ningbo notes that Commerce indicated that it “intended to
raise the minimum purchase percent threshold from a practice
percentage ranging 5-10 percent to 33 percent.” Pls.’ Br. at 28;
Antidumping Methodologies: Market Economy Inputs, Expected Non-
Market Wages, Duty Drawback; and Request for Comments, 71 Fed.
Reg. 61716 (Oct 19, 2006).
14
Ningbo states that the white groupings did not exceed one
percent of MEP purchases, green tonnage did not exceed four
percent, and there were no invoices listing any other color. See
Pls.’ Br. at 29.
Court No. 07-00236 Page 19
economy currency (19 C.F.R. § 351.408(c)(1)) and that
“[c]onsistent with this policy and 19 U.S.C. § 1677b(c)(1)”
Commerce valued Ningbo’s PET flake based on the “best available
information.” Commerce Br. at 18. Commerce notes that “100
percent of Ningbo’s PET flake purchases were market economy
purchases, and therefore, [it] reasonably applied the market
economy purchase prices.” Id. at 19. Commerce adds that “the
fact that [it] applied facts available to value separately the
specific costs of PET flake purchased does not render the policy
inapplicable.” Id. The Court agrees.
The fact that the MEP invoices did not in most cases
specifically identify a color does not disqualify them as
otherwise acceptable invoices reflecting MEPs. Specifically, the
invoices collectively account for far greater than five percent
of the total volume of PET flakes purchased during the POI and
the application of “facts available” to these invoices does not
change this analysis. Commerce’s determination to value Ningbo’s
PET flake in this way is based on the “best available
information” and supported by substantial evidence on the record.
V. Commerce Requirements
Plaintiffs argue that Commerce failed to (1) establish the
necessity for “alleged missing facts on the record” (i.e., color-
specific costs for Ningbo’s PET flake purchases); (2) advise
Court No. 07-00236 Page 20
Ningbo Dafa of the deficiencies in its responses; and (3) justify
why it was unable to use certain data submitted by Ningbo Dafa
that met the criteria of the Tariff Act for its consideration.
Pls.’ Br. at 31. Ningbo contends that because Commerce did none
of the above in its I&D Memo, that a remand is required.
The Court has addressed the reasonableness of Commerce
requiring color-specific costs for Ningbo’s PET flake purchases
supra and therefore need not repeat its analysis here.
As to Commerce advising Ningbo of the deficiencies in
responses, Commerce responds that it “complied with that statute
by requesting that Ningbo [Dafa] report all of its factors of
production in the initial questionnaire, and by continuing to
request clarification of its market economy purchases of PET
flake - including by color.” Commerce Br. at 14. The Court
agrees that these provide sufficient advisement to Ningbo under
the law of the deficiencies in its responses.
Lastly, Ningbo’s argument regarding Commerce’s alleged lack
of justification for its inability to use certain data submitted
by Ningbo (i.e., the use of an average unit flake value) also
revolves around the issue of Commerce requiring color-specific
flake costs, which is addressed supra.
VI. Additional Plaintiffs’ Contentions
In its brief Ningbo also presents certain allegations
Court No. 07-00236 Page 21
intimating a certain bias toward it in this investigation, among
them that Ningbo was a “‘marked’ respondent from the commencement
of the antidumping investigation” and that Commerce “cut its
investigation short.” Pls.’ Br. at 2, 11. Although serious
accusations, Ningbo does not offer much in the way of
substantiating these charges. The Court therefore will not
address the specifics of these contentions but will note that the
record does not support Ningbo as to these issues.
CONCLUSION
For the reasons stated above, Commerce’s determination is
affirmed and this case is dismissed.
/s/ Nicholas Tsoucalas
NICHOLAS TSOUCALAS
SENIOR JUDGE
Dated: September 2, 2008
New York, New York