Cheng Shin Rubber Ind. Co. v. United States

Slip Op. No. 23-16

UNITED STATES COURT OF INTERNATIONAL TRADE

CHENG SHIN RUBBER IND. CO.

LTD.,

Plaintiff,

Vv.

UNITED STATES,

Defendant,

and

UNITED STEEL, PAPER AND

FORESTRY, RUBBER,

MANUFACTURING, ENERGY,

ALLIED INDUSTRIAL AND SERVICE

WORKERS INTERNATIONAL

UNION, AFL-CIO, CLC,

Defendant-Intervenor.

Before: Stephen Alexander Vaden,

Judge

Court No. 21-00398

OPINION AND ORDER

[Affirming Commerce’s Final Determination. ]

Dated: February 138, 2023

Amrietha Nellan, Winton & Chapman PLLC, of Washington, DC, for Plaintiff Cheng

Shin Rubber Ind. Co. Ltd. With her on the brief were Jeffrey Michael Winton, Michael

J. Chapman, and Vi N, Mai.

Court No. 21-00398 Page 2

Elizabeth Anne Speck, Trial Attorney, Commercial Litigation Branch, Civil Division,

U.S. Department of Justice, of Washington, DC, for Defendant United States. With

her on the brief were Brian M. Boynton, Principal Deputy Assistant Attorney

General, Patricia M. McCarthy, Director, Commercial Litigation Branch, Vania Y.

Wang, Of Counsel, Office of the Chief Counsel for Trade Enforcement and

Compliance, U.S. Department of Commerce.

Elizabeth J. Drake, Schagrin Associates, of Washington, DC, for Defendant-

Intervenor United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied

Industrial and Service Workers International Union, AFL-CIO, CLC. With her on the

brief was Roger B. Schagrin.

Vaden, Judge: Vladimir Lenin is reputed to have said, “When it comes time

to hang the capitalists, they will vie with each other for the rope contract.”! Plaintiff

Cheng Shin Rubber Industry Co. (Cheng Shin) comes before the Court to complain

that it did not receive the benefit of its bargain. It negotiated with the United

Steelworkers Union (the Union) for an exclusion for certain spare tires made for light

trucks from Taiwan under investigation by the Department of Commerce

(Commerce). Having agreed on acceptable language with the Union, Cheng Shin

expected its tires would qualify and be excluded from any duties Commerce imposed.

Instead, Commerce found that Cheng Shin’s tires did not qualify for the exclusion

i The Oxford Essential Quotations provides the following version and possible origin of the attribution:

The capitalists will sell us the rope with which to hang them.

attributed to Lenin, but not found in his published works in this form;

I. U. Annenkov, in ‘Remembrances of Lenin’ includes a manuscript

note attributed to Lenin: ‘They [capitalists] will furnish credits which

will serve us for the support of the Communist Party in their countries

and, by supplying us materials and technical equipment which we lack,

will restore our military industry necessary for our future attacks

against our suppliers. To put it in other words, they will work on the

preparation of their own suicide’, in Novyt Zhurnal/New

Review September 1961

OXFORD ESSENTIAL QUOTATIONS (Susan Ratcliffe, ed, 6th ed. 2018),

https://bit.ly/3DBtoSt.

Court No. 21-00398 Page 3

and therefore fell within the scope of the resulting antidumping order. Cheng Shin

asserts that Commerce’s determination is not supported by substantial evidence. The

Court disagrees. Commerce’s final determination is supported by the very answers

Cheng Shin gave to the questions Commerce proffered. Like Vladimir Lenin’s

apocryphal capitalists, Cheng Shin was done-in by its own hand. And given the

deferential standard of review, that Commerce may have been able to reach a

different result on this record does not allow the Court to compel the agency to do so.

Cheng Shin’s Motion for Judgment on the Agency Record will be DENIED and

Commerce’s determination will be AFFIRMED.

BACKGROUND

Cheng Shin is a Taiwanese producer and exporter of passenger vehicle and

light truck tires. Comments on CBP Data and Respondent Selection (Respondent

Selection) at 1-2 (July 2, 2020), J.A. at 82,464~-65, ECF No. 61; see Passenger Vehicle

and Light Truck Tires from the Republic of Korea, Taiwan, and Thailand:

Antidumping Duty Orders and Amended Final Affirmative Antidumping Duty

Determination for Thailand Final Determination (Final Determination), 86 Fed. Reg.

38,011, 38,012 (July 19, 2021).

The products at issue in this case are two of Cheng Shin’s tire models that

must meet the following standards to qualify for exclusion from the investigation:

(5) tires designed and marketed exclusively as temporary-

use spare tires for light trucks which, in addition, exhibit

each of the following physical characteristics:

Court No. 21-00398 Page 4

(a) The tires have a 255/80R17, 265/70R17, or

265/70R16 size designation;

(b) “Temporary-use Only” or “Spare” is molded into

the tire’s sidewall;

(c) the tread depth of the tire is no greater than 6.2

mm; and

(d) Uniform Tire Quality Grade Standards (“UTQG”)

ratings are not molded into the tire’s sidewall with

the exception of 265/70R17 and 255/80R17 which

may have UTQG molded on the tire sidewalll[.]

Final Determination, 86 Fed. Reg. at 38,013.

I. The Disputed Final Determination

The Union filed its petition with Commerce on May 13, 2020, and Commerce

began an antidumping investigation into passenger vehicle and light truck tires from

Korea, Taiwan, Thailand, and Vietnam the following month. Passenger Vehicle and

Light Truck Tires from the Republic of Korea, Taiwan, Thailand, and the Socialist

Republic of Vietnam: Initiation of Less-Than-Fair-Value Investigations (Initiation of

Investigation), 85 Fed. Reg. 38,854 (June 29, 2020). Cheng Shin requested to be

named as a mandatory respondent in the investigation on July 2, 2020. Respondent

Selection at 1-2, J.A. at 82,464-65, ECF No. 61.2 Commerce selected Cheng Shin and

another company not a party to this case as mandatory respondents. Selection of

Respondents for Individual Examination at 7 (July 28, 2020), J.A. at 82,584, ECF No.

61.

2 Cheng Shin was represented by different counsel during the investigation and proceedings before

Commerce.

Court No. 21-00398 Page 5

Commerce’s initiation notice explained that, when listing product

characteristics for control numbers (CONNUMs), it “attempts to list the most

important physical characteristics first and the least important characteristics last.”

Initiation of Investigation, 85 Fed. Reg. at 38,855.83 Here, Commerce listed tire

service type first, meaning it was the most important characteristic that Commerce

would consider in this investigation. Jd. at 38,859. On July 20, 2020, Cheng Shin

filed Characteristic Comments in which it proposed adding a fourth product

characteristic code under the tire service type field. Cheng Shin’s Product

Characteristic Comments (Characteristic Comments) at 2, J.A. at 4,347, ECF No. 60.

Tire service types are based on the Tire and Rim Association’s (TRA)4 Classifications

and included the following three categories: 01 for passenger car, 02 for light truck,

and 03 for special trailer. Jd. Cheng Shin proposed a fourth type: “O4=Light Truck

Full Size Spare (with reduce tread depth) [stc].” Jd. It wanted this fourth category

added because temporary-use light truck tires were included in the investigation but

had no distinct TRA Yearbook entry. Jd. at 3. Because its spare tires “are physically

3 The listing of characteristics in a hierarchy of importance is Commerce’s standard procedure for

constructing control numbers. See Union Steel v. United States, 823 F. Supp. 2d 1346, 1349-50 (CIT

2012) (“A ‘CONNUM is a contraction of the term ‘control number,’ and is simply Commerce[’s term]

for a unique product (defined in terms of a hierarchy of specified physical characteristics determined

in each antidumping proceeding).”) (quoting plaintiffs’ briefing).

4 The Tire and Rim Association is an American organization that establishes and promulgates

“interchangeability standards for tires, rims and allied parts for the guidance of manufacturers and

users of such products, designers and manufacturers of motor vehicles, aircraft and other wheeled

vehicles and equipment, and governmental and other regulatory bodies.” Petition for Imposition of

Antidumping and Countervailing Duties at Ex. 7, J.A. at 1,247, ECF No. 60. “The YEAR BOOK

contains all TRA Standards and related information approved by the Association for tires, rims and

allied parts for ground vehicles.” Jd. at 1248.

Court No. 21-00398 Page 6

distinct from other subject merchandise,” Cheng Shin argued that the additional

service type was necessary. Id.

Cheng Shin also submitted its Scope Comments to Commerce on that same

date and suggested that Commerce create an exclusion for temporary-use light truck

tires. See Cheng Shin Scope Comments (Scope Comments) at 2-5, J.A. at 4,369-72,

ECF No. 60.5 This would complement the proposed initial scope, which contained an

exclusion for tires “designed and marketed exclusively as temporary-use spare tires

for passenger vehicles[.|” Initiation of Investigation, 85 Fed. Reg. at 38,860. Cheng

Shin attached drawings of the temporary-use light truck tires for which it sought an

exclusion and that were “[t]he tires subject to these scope comments.” Scope

Comments at 3, J.A. at 4,370, ECF No. 60. Cheng Shin proposed that Commerce add

the following exclusion: “Excluded from the scope of these investigations are light

truck spare tires that are stamped on the sidewall of the tire as temporary-use.” Id.

at 7, It argued that Commerce should create this exclusion because light truck spare

tires and light truck tires for everyday use have different physical characteristics (1.e.,

different tread depth), consumer expectations, end uses, and advertising. Id. at 7—

11.

On July 30, 2020, the Union filed a rebuttal to Cheng Shin’s proposed changes

to the product characteristics of the subject merchandise under investigation.

5 Because of a numbering error in the Joint Appendix, the page range in which this document falls is

repeated in an earlier section of the appendix such that there are two page 4,369s, 4,370s, etc.

Court No. 21-00398 Page 7

Petitioner’s Product Characteristics Comments Rebuttal (Product Characteristics

Rebuttal) at 1, J.A. at 6,088, ECF No. 60. The Union rejected Cheng Shin’s proposed

addition of a fourth service type for temporary-use light truck tires because the “only

indication of difference” between these tires and other subject tires was the tread

depth. Jd. at 10. It explained that tread depth was “already accounted for” in a later

number comprising the 15-digit CONNUM and creating a new category “would create

opportunities for manipulation.” fd. Most importantly, “[a]s service type is the first

characteristic in the hierarchy, reporting tires as different service types would

normally be determinative on matching.” Jd. at 10 n.36.

On August 5, 2020, Commerce issued its initial antidumping questionnaire to

Cheng Shin. See Request for Information Antidumping Duty Investigation Cheng

Shin (Antidumping Questionnaire), J.A. at 6,778, ECF No. 60. In its accompanying

letter, Commerce explained that it was “still evaluating the information necessary

for reporting the control number and physical characteristics,” t.e., Cheng Shin and

other respondents’ requests to modify the products characteristics of the

investigation. Letter Accompanying Antidumping Questionnaire at 2 (Aug. 5, 2020),

J.A. at 6,775, ECF No. 60 (emphasis removed). Therefore, until the product

characteristics were finalized, Commerce would not assign due dates for Sections B

(Sales in the Home Market or to Third Countries), C (Sales to the United States), and

D (Costs of Production/Constructed Value) of the questionnaire because the due dates

would depend on Commerce’s determination. Id.

Court No. 21-00398 Page 8

Thirteen days later, on August 18, 2020, Commerce rejected Cheng Shin’s

proposed fourth category. See Dep’t of Commerce Product Characteristics at Attach.,

J.A. at 6,937, ECF No. 60. The first — and most important — field of the CONNUM,

therefore, listed three possible choices for respondents: “0O1=Passenger Car,”

“0O2=Light Truck,” and “O3=Special Trailer.” Id. Tread depth was the eleventh of

fifteen total fields in the product characteristics used to construct the CONNUM. Id.

at 6,943. Commerce instructed Cheng Shin to “use these product characteristics in

any response to sections B through D of the [antidumping] questionnaires issued in

these investigations.” Id. at 6,935.

On September 25, 2020, Cheng Shin filed its Section B response addressing

sales in its home market and in third countries. Cheng Shin Section B & D

Responses, J.A. at 85,331, ECF No. 61. On September 29, 2020, Cheng Shin filed its

Section C response detailing its sales to the United States. Cheng Shin Section C

Response, J.A. at 88,652, ECF No. 61. In Cheng Shin’s sales databases that it

submitted in its Section B and C responses, it chose the number “1,” meaning

passenger car, for the TRA Yearbook service type of the tires at issue here. Id. at Ex.

C-4; Cheng Shin’s Section B Response at B-11-12, J.A. at 85,3852-53, ECF No. 61.

Commerce had not yet decided on its exclusion request for temporary-use light truck

tires, but the Union had warned two months earlier that the selection of tire service

types “would normally be determinative.” Product Characteristics Rebuttal at 10

n.36, J.A. at 6,097 ECF No, 60; Cheng Shin’s Section B Response at B-11—-12, J.A. at

Court No. 21-00398 Page 9

85,352-53, ECF No. 61. Cheng Shin later explained that it chose the designation for

passenger car because the tires were developed under the European Tyre and Rim

Technical Organization’s (ETRTO)* standards and the tires “fit into the passenger

car section of the ETRTO standard.” In Lieu of Verification Questionnaire Response

(Questionnaire Response) at VE-12, J.A. at 97,833, ECF No. 61. In its final brief

before Commerce, Cheng Shin stated that the TRA Yearbook would also classify its

tires as passenger tires. Administrative Case Brief at 6 n.10, J.A. at 100,574, ECF

No. 61

On September 25, 2020, the Union filed rebuttal comments to Cheng Shin’s

request for an exclusion for temporary-use light truck tires. Petitioner’s Response on

Light Truck Spare Tires (Petitioner’s Scope Rebuttal) at 1-2 , J.A. at 8,596-97, ECF

No. 60. The Union supported creating an exclusion but argued that Cheng Shin’s

“request should be modified to better prevent circumvention and improve

administrability[.]” Jd. Cheng Shin’s requested exclusion for temporary-use light

truck tires had only one requirement — having temporary-use stamped on the

sidewall — but the exclusion for spare passenger tires had multiple design and

marketing requirements drawn, in part, from the TRA Yearbook. Id. at 4-5. Because

there was no separate TRA Yearbook listing for temporary-use light truck tires, the

Union proposed combining the requirements of design and marketing exclusivity

6 ETRTO is the European equivalent of the TRA.

Court No. 21-00398 Page 10

from the exclusion for spare passenger tires with “some of the distinguishing

characteristics highlighted by Cheng Shin”:

(5) tires designed and marketed exclusively as temporary-

use spare tires for light trucks which, in addition, exhibit

each of the following physical characteristics:

(a) are of a 255/80R17, 265/70R17, or 265/70R16 size

designation;

(b) “Temporary-use Only” is molded into the tire’s

sidewall;

(c) the tread depth of the tire is no greater than 6.2

mm; and

(d) Uniform Tire Quality Grade Standards (“UTQG”)

ratings are not molded into the tire’s sidewall[.]

Id. at 5 (emphasis removed). The Union explained that “the first requirement of this

exclusion .. . limits the exclusion to tires that are intended and designed to be used

as temporary spares, as Cheng Shin avers the tires in its request are,” Id.

After further consultation, the parties reached agreement on draft language,

which Cheng Shin proposed to Commerce with the Union’s consent. See Cheng Shin

Revised Scope Exclusion Language (Revised Exclusion) at 1 (Dec. 10, 2020), J.A. at

12,293, ECF No. 60; Petitioner’s Response on Cheng Shin’s Scope Request at 1 (Dec.

11, 2020), J.A. at 12,800, ECF No. 60. Cheng Shin’s final proposed language largely

tracked the Union’s counterproposal:

Excluded from the scope are tires designed and marke|[te]d’?

exclusively as “temporary-use” or “spare” tires for light

trucks which, in addition, exhibit each of the following

physical characteristics:

7 Cheng Shin’s initial submission contained this erratum that Commerce corrected. See Preliminary

Scope Memorandum at 11, J.A. at 12,897, ECF No. 60.

Court No, 21-003898 Page 11

(a) are of a 265/70R17, 255/80R17, 265/70R16, 245/70R17,

245/75R17, 265/70R18, or 265/70R18 size designation;

(b) “Temporary-use Only” or “Spare” is molded into the tire’s

sidewall;

(c) the tread depth of the tire is no greater than 6.2 mm; and

(d) Uniform Tire Quality Grade Standards (“UTQG”) ratings are

not molded into the tire’s sidewall with the exception of

265/70R17 and 255/80R17 which may have UTGC molded on the

tire sidewall.

Revised Exclusion at 2, J.A. at 12,294, ECF No. 60. The Union, in agreeing to the

revised language, stated that it was agreeing to an exclusion only for “certain

specifically defined light truck spare tires[.]” Petitioner's Response on Cheng Shin’s

Scope Request at 1, J.A. at 12,300, ECF No. 60. Commerce adopted this exclusion as

proposed, following its “practice of providing ample deference to the petitioner with

respect to the products for which it seeks relief in these investigations[.]” Preliminary

Scope Memorandum at 11, J.A. at 12,897, ECF No. 60.

On December 30, 2020, Commerce issued its Preliminary Decision

Memorandum (PDM) and included Cheng Shin’s temporary-use light truck tires

within the proposed order’s scope. See PDM at 12-15, J.A. at 12,857-60, HCE No. 60.

Cheng Shin filed comments asserting this was a ministerial error on Commerce’s part

on January 5, 2021. Ministerial Error Comments at 2, J.A. at 94,700, ECF No. 61.

Cheng Shin argued that its temporary-use light truck tires should have been excluded

because they met all the parameters laid out in the agreed-upon exclusion. Id. at 3—-

5. Cheng Shin further explained that it had previously notified Commerce that the

excluded tires had been included in its sales files because Commerce had not yet

Court No. 21-00398 Page 12

decided on Cheng Shin’s exclusion request when it was required to submit this data.

Id. at 3. Commerce rejected Cheng Shin’s arguments, explaining that Cheng Shin’s

tires did not meet the exclusion’s terms because Cheng Shin’s U.S. sales database

listed them as having the tire service type “passenger car.” Ministerial Error

Memorandum at 6 (Feb. 3, 2021), J.A. at 94,789, ECF No. 61. Commerce understood

this listing to show that the tires were not “designed and marketed exclusively as

temporary-use spare tires for light trucks.” Jd. at 6.

On February 25, 2021, Commerce issued a questionnaire in lieu of on-site

verification to Cheng Shin. Questionnaire in Lieu of Verification (Questionnaire),

J.A. at 94,814, ECF No. 61. The Questionnaire investigated Cheng Shin’s ministerial

error comments and asked Cheng Shin to “provide a detailed explanation as to how

these CONNUMS [the two disputed tire models] meet the exclusionary criteria.” fd.

at 94,818-19. Chen Shin submitted its questionnaire responses on March 5, 2021.

Questionnaire Response, J.A. at 97,821, ECF No, 61. Cheng Shin explained that a

manufacturer ordered the tires as temporary-use light truck tires for specific light

truck vehicle models. Jd. at VE-10-11. It provided the purchase contracts and

technical drawings that the buyer approved before the beginning of production. Id.

at VE-11, Ex. VE-7A. Cheng Shin also provided the buyer’s email confirmation,

requested on February 24, 2021, that the tires were exclusively designed and

marketed as temporary-use light truck tires. Id. at Ex. VE-7B.

Court No. 21-00398 Page 13

Cheng Shin then explained why it had nonetheless chosen “passenger car” as

the tire service type, which was the primary reason for Commerce’s decision that the

tires were within the scope. Ministerial Error Memorandum at 6, J.A. at 94,739, ECF

No. 61. It stated that the tires were developed under the European Tyre and Rim

Technical Organization’s (ETRTO) standards; and under those standards, they were

classified as passenger car tires. Questionnaire Response at VE-12, J.A. at 97,833,

ECF No. 61. Thus, “Cheng Shin’s R&D Division assigned internal product codes to

these tire models accordingly.” fd. Cheng Shin concluded this by stating that “these

tire models meet the standards of passenger tire[s], but [the customer] ordered and

designed them exclusively as spare tire [sic] of light truck [stc].” Jd. at VE-13.

On March 24, 2021, Cheng Shin again argued for an exclusion for its tires in

its administrative case brief before Commerce. Administrative Case Brief at 4-8,

J.A. at 100,572—76, ECF No. 61. It reiterated its arguments from the Ministerial

Error Comments that it had met all the exclusion’s requirements. Id. at 5-6. Cheng

Shin also reaffirmed that the TRA Yearbook would classify its tires as passenger

tires. Id. at 6n.10 (“To clarify, if these models had been developed under the standard

33)

of TRA, they would also be classified as ‘passenger tire.””). It once again stated that

the tires met the standards of passenger tires. Jd. at 6-7 (“In short, these tire models

mect the standards of passenger tires, but [the customer] ordered and designed these

tires exclusively as spare tires of light trucks.”).

Court No. 21-00398 Page 14

Commerce rejected Cheng Shin’s arguments in its Issues and Decisions

Memorandum (IDM), which Commerce adopted in its Final Determination. See Final

Determination, 86 Fed. Reg. at 38,011; IDM at 19, J.A. at 15,976, ECF No. 60. It

emphasized that the exclusion required that the tires be “designed and marketed

exclusively as temporary-use spare tires for light trucks.” IDM at 19, J.A. at 15,976,

ECF No. 60 (quoting the exclusion language) (emphasis removed). Commerce found

that Cheng Shin had consistently described the tires in its submissions as not falling

under the service type for light trucks. Id. Significantly, Commerce explained that

Cheng Shin admitted that “the sizes and characteristics of these tires fit within both

service types for light truck spare tires and for the other service type as reported.”

Id. at 20.

Commerce also addressed Cheng Shin’s argument that the tires were in fact

designed and produced exclusively to meet its customer’s request for temporary-use

light truck tires. Id. It found that the purchase agreements and business proprietary

information did not show design exclusivity but further evidenced a dual-use. Id.

Cheng Shin’s customer confirmation was unpersuasive because the “email was not

generated as part of Cheng Shin’s normal course of business[.]” Final Calculation

Memorandum, J.A. at 100,653, ECF No. 61. Cheng Shin sent the email requesting

confirmation on February 24, 2021, during the pendency of the investigation and only

one day before the in-lieu of verification questionnaire was sent. Id. The technical

drawings and purchase agreements demonstrated that, under both European and

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American standards, the tires had a potential dual-use as passenger tires and

temporary-use light truck tires. Jd. The Final Calculation Memorandum cited a

load chart included in Cheng Shin’s customer contracts that listed different load

bearing figures for both passenger car tires and light truck tires in support of this

conclusion. Id. Because Commerce concluded that the tires in question had a dual

classification, it determined they are within the scope of the order. See Final

Determination, 86 Fed. Reg. at 38,012; IDM at 19, J.A. at 15,976, ECF No. 60.

Il. The Present Dispute

Plaintiff Cheng Shin filed this action on August 11, 2021, seeking to overturn

Commerce’s decision not to exclude its temporary-use light truck tires. Summons,

ECF No. 1. On February 11, 2022, Cheng Shin filed its Motion for Judgment on the

Agency Record. Pl.’s Mot. for J. on the Agency R. (Pl.’s Mot.), ECF No. 42. Cheng

Shin raises three primary arguments: (1) Its light truck spare tires were exclusively

designed and marketed as such; (2) Commerce’s conclusion to the contrary lacked

substantial evidence; and (8) Commerce’s failure to exclude the tires in question

unlawfully changed the scope of the order. Id. at 3.

Commerce and Defendant-Intervenor responded on April 13, 2022, and April

12, 2022, respectively. Def.’s Resp. to Pl.’s Mot. for J. on the Agency R. (Def.’s Resp.),

ECF No. 53; Def.-Int.’s Resp. to Pl.’s Mot. for J. on the Agency R. (Def.-Int.’s Resp.),

ECF No. 49. Commerce argues that substantial evidence supports its decision that

it did not unlawfully modify the scope of the investigation and that two of Cheng

Court No. 21-00398 . Page 16

Shin’s arguments are barred by administrative exhaustion. Def.’s Resp. at 11, 18, 21,

ECF No. 53. The Union argues that Commerce’s decision was supported by

substantial evidence taken from Cheng Shin’s own submissions to Commerce and

that the scope of the proceeding was never unlawfully modified, as Cheng Shin’s tires

did not meet the terms of the exclusion. Def.-Int.’s Resp. at 7-9, ECF No. 49.

Cheng Shin filed its reply on May 10, 2022, and raised for the first time an

alleged inconsistency between the determination at issue in this case and a

subsequent scope ruling by Commerce. It appended that subsequent scope ruling to

its brief. Pl.’s Reply at 15, ECF No. 58. Cheng Shin also argued that it was unlawful

for Commerce to use the TRA Service Type to find that the tires were not excluded

and that Commerce unlawfully modified the scope by not excluding the specific tires

for which Cheng Shin had negotiated an exclusion, Jd. at 4-6. The Court ordered

Commerce to file a sur-reply addressing Cheng Shin’s arguments regarding the

subsequent scope determination. ECF No. 64. On August 26, 2022, Commerce did

so, arguing that the alleged inconsistency between this ruling and a subsequent scope

ruling was a result of the different records in each case and that Cheng Shin bore the

burden of building the record before the agency. Def.’s Sur-Reply at 2, ECF No. 65.

At oral argument the Court asked the parties whether Cheng Shin had asked

Commerce for advice on how to report the service type for its light truck spare tires.

Oral Arg. Tr. 8:7~11, 29:11-23, ECF No. 76. The parties were unaware of Cheng

Shin’s asking Commerce for advice. Id. at 8:24-9:38, 29:24. After oral argument, the

Court No. 21-00398 Page 17

Court ordered that the parties file letter statements “regarding whether there is

record evidence that Plaintiff Cheng Shin asked Commerce for advice in answering

the question about product characteristics[.]” Minute Order, ECF No. 71. Commerce

and Plaintiff agreed that Cheng Shin never asked Commerce for advice or assistance

in designating the tire service type for the tires in question. See Commerce Resp. to

Court’s Request/Order at 1, ECF No. 73; Pl’s Resp. to Court’s Request/Order and

Def.’s Oct. 5 Letter at 2, ECF No. 74.

JURISDICTION AND STANDARD OF REVIEW

19 U.S.C. § 1516a(a)(2)(B)G) and 28 U.S.C. § 1581(c) grant the Court authority

to review actions contesting antidumping determinations. The Court must sustain

Commerce’s “determinations, findings, or conclusions” unless they are “unsupported

by substantial evidence on the record, or otherwise not in accordance with law[.]” 19

U.S.C. § 1516a(b)(1)(B)G). If they are unsupported by substantial evidence or not in

accordance with the law, the Court must “hold unlawful any determination, finding,

or conclusion found.” Jd. “[T]he question is not whether the Court would have

reached the same decision on the same record[;] rather, it is whether the

administrative record as a whole permits Commerce’s conclusion.” See New American

Keg v. United States, No. 20-00008, 2021 WL 1206153, at *6 (CIT Mar. 28, 2021).

Reviewing agency determinations, findings, or conclusions for substantial

evidence, the Court assesses whether the agency action is reasonable given the record

as a whole. Nippon Steel Corp. v. United States, 458 F.3d 1345, 1850-51 (Fed. Cir.

Court No. 21-00398 Page 18

2006); see also Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951) (The

substantiality of evidence must take into account whatever in the record fairly

detracts from its weight.”). The Federal Circuit has described “substantial evidence”

as “such relevant evidence as a reasonable mind might accept as adequate to support

a conclusion.” DuPont Teijin Films USA v. United States, 407 F.3d 1211, 1215 (Fed.

Cir. 2005) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

DISCUSSION

I, Summary

This case presents the question of whether Commerce’s determination that

Cheng Shin’s tires did not qualify for the exclusion for temporary-use light truck tires

was supported by substantial evidence. Cheng Shin argues that (1) its tires met the

terms of the exclusion, (2) Commerce unlawfully modified the scope of the exclusion,

and (8) the ruling in this case is inconsistent with a subsequent scope ruling. PL.’s

Reply at 4-6, 15, ECF No. 58. Commerce counters that (1) record evidence supports

its decision, (2) it did not unlawfully modify the scope of the exclusion, and (8) the

subsequent scope ruling is irrelevant and not on the record of this proceeding. Def.’s

Resp. at 11, 21, ECF No. 58; Def.’s Sur-Reply at 2, ECF No. 65.

First, Cheng Shin provided Commerce with the substantial evidence necessary

to find that its tires did not meet the negotiated exclusion. The exclusion required

that tires be “designed and marketed exclusively” as temporary-use light truck tires.

Cheng Shin twice affirmed to Commerce that its tires met the standards of passenger

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tires, including during the verification process when Cheng Shin was on full notice of

the concerns Commerce had. Cheng Shin bore the responsibility of making the record

before Commerce. Cheng Shin’s other evidentiary objections, based on the

inapplicability of the TRA Yearbook to its tires and alternative conclusions Commerce

could reach are also unavailing because they improperly request that the Court

reweigh the evidence.

Second, Cheng Shin’s claim that Commerce unlawfully modified the scope of

the exclusion fails. After placing evidence on the record that its tires were passenger

car tires under the TRA Yearbook and the ETRTO standards, Cheng Shin proceeded

to negotiate an exclusion that required exclusivity of design and marketing. During

these negotiations, the Union never stated that Cheng Shin’s tires met this

requirement. Cheng Shin found itself in an unfortunate position, having negotiated

an agreement its prior submitted evidence made it hard to satisfy. Buyer's remorse

is insufficient for the Court to overturn Commerce’s decision. Commerce did not

unlawfully modify the scope of the order.

Third, the subsequent scope ruling in which Commerce found that different

Cheng Shin tires qualified for the exclusion is irrelevant. By definition, any

subsequent scope ruling was not on the record before Commerce when it made its

decision. Commerce may only consider the record before it in making its decision. To

consider the later ruling would be legal error. Commerce’s subsequent scope ruling

— in a separate proceeding with a different record — has no bearing on the outcome

Court No. 21-00398 Page 20

here; therefore, Cheng Shin’s third argument is similarly unavailing. Because

Commerce’s decision is supported by substantial evidence on the record and is not

otherwise contrary to law, the Court AFFIRMS Commerce’s Final Determination.

Il. Analysis

A. Substantial Evidence Supports Commerce’s Decision

The first issue is whether substantial evidence supports Commerce's

determination that Cheng Shin’s tires were not exclusively designed and marketed

as temporary-use light truck tires. The first section of the parties’ agreed-upon

exclusion limits its application to “tires designed and marketed exclusively as

‘temporary-use’ or ‘spare’ tires for light trucks[.]” Preliminary Scope Memorandum

at 11, J.A. at 12,897, ECF No. 60. Cheng Shin argues that Commerce erroneously

concluded that its tires were not exclusively marketed and designed as temporary-

use light truck tires because Commerce misunderstood its submissions. Pl.’s Mot. at

20-27, ECF No. 42. Specifically, Cheng Shin claims that its selection of the passenger

car service type was because of the timing of the investigation and was not meant to

signify that the tires were designed and marketed as passenger tires. Id, at 22-23.

It also argues that Commerce erroneously interpreted a load bearing chart as

showing that the tire models had a dual-use when the chart only showed the various

load capacities of passenger and light truck tires. Jd. at 25-26. Finally, Cheng Shin

points to its customer agreements identifying the tires as spare tires for specific light

truck models in support of its position. Id. at 21. Commerce counters that Cheng

Court No. 21-00398 Page 21

Shin identified the tires during the investigation as passenger tires under both the

ETRTO standards and the TRA Yearbook. Def.’s Resp. at 12, ECF No. 53. It did so

even after the exclusion negotiations ended and Commerce had flagged the issue in

its Ministerial Error Memorandum, Ministerial Error Memorandum at 6, J.A. at

94,739, ECF No. 61. Commerce found that Cheng Shin’s tires did not meet the

requirements of the exclusion because Cheng Shin “clearly states that the sizes and

characteristics of these tires fit within both service types for light truck spare tires

and the other service type as reported.” IDM at 20, J.A. at 15,977, ECF No. 60. Thus,

the tives had a potential dual-use as passenger tires and temporary-use light truck

tires. Id. Because Commerce reasonably concluded that the tires were not “designed

and marketed exclusively” as temporary-use light truck tires, substantial evidence

supports its determination. See Administrative Case Brief at 6—7, J.A. at 100,574—

75, ECF No. 61; Questionnaire Response at VE-13, J.A. at 97,834, ECF No. 61.

Under the substantial evidence standard, “[i]t is not for this court on appeal to

reweigh the evidence or to reconsider questions of fact anew.” Trent Tube Div.,

Crucible Materials Corp. v. Avesta Sandvik Tube, 975 F.2d 807, 815 Wed. Cir. 1992);

see Downhole Pipe & Equip., L.P. v. United States, 776 F.3d 1369, 13876 (Fed. Cir.

2015) (“While Appellants invite this court to reweigh this evidence, this court may

not do so.”). A determination is supported by substantial evidence when it rests on

“more than a mere scintilla,’ as well as evidence that a ‘reasonable mind might accept

as adequate to support a conclusion.” Dongtai Peak Honey Indus. Co., Lid. v. United

Court No. 21-00398 Page 22

States, 777 F.3d 1343, 1349 (Fed. Cir. 2015) (quoting Consol. Edison Co. v. NLAB,

305 U.S. 197, 229 (1938)). “The burden of creating an adequate record lies with the

interested parties and not with Commerce.” Qingdao Sea-Line Trading Co., Ltd. v.

United States, 766 F.8d 1378, 1886 (Fed. Cir. 2014) (citing QVD Food Co., Lid. v.

United States, 658 F.3d 1318, 13824 (Fed. Cir. 2011)).

Cheng Shin argues that it was faced with a no-win situation because it had to

report its tires under a TRA Yearbook listing even though the tires had no such

listing. Pl.’s Reply at 8-9, ECF No. 58. But this argument is inconsistent with Cheng

Shin’s own admissions during the investigation. In its administrative case brief,

Cheng Shin affirmed that the tires would accurately be classified as passenger tires

under the TRA Yearbook. Administrative Case Brief at 6 n.10, J.A. at 100,574, ECF

No. 61 (“To clarify, if these models had been developed under the standard of TRA

[sic], they would also be classified as ‘passenger tire.”). Cheng Shin further noted

that it developed the tires under a separate Kuropean standard where they were also

classified as passenger ties. Jd. at 6. It said without any qualification that “these

tires meet the standards of passenger tires.” Id. at 6-7.

Faced with these admissions during the investigation, Cheng Shin claimed at

oral argument that its own submissions to Commerce were “irrelevant information.”

Oral Arg. Tr. 53:9-18, ECF No. 76. Cheng Shin’s submissions during Commerce’s

investigation are of course relevant because “[t]he burden of creating an adequate

record lies with the interested parties, not with Commerce.” Qingdao, 766 F.3d at

Court No. 21-00398 Page 23

1386. And Commerce is statutorily required to base its decision on the record before

it. See 19 U.S.C. §§ 1516a(b)(1)—-(2). Commerce is obligated to consider all the

evidence that fairly supports or detracts from its conclusion, and Cheng Shin’s own

submissions provided support for Commerce’s conclusion in this case. See Butte

Cnty., Cal. v. Hogen, 613 F.3d 190, 194 (D.C. Cir, 2010) (noting that an agency cannot

“reufus[e] to consider evidence bearing on the issue before it”). Commerce reasonably

construed Cheng Shin’s admissions as supporting the conclusion that “these tires

have an intended dual use and, thus, could not have been designed and marketed

exclusively for light trucks.” IDM at 20, J.A. at 15,977, ECF No. 60. Indeed, it would

likely have been unreasonable had Commerce taken Cheng Shin’s suggestion and

ignored the company’s repeated claims that its tires were designed using passenger

car standards. Compare Administrative Case Brief at 6-7 n.10, J.A. at 100,574-75,

ECF No. 61 (noting that the tires “would also be classified as ‘passenger tire”), with

Allegheny Ludlum Corp. v. United States, 112 F. Supp. 2d 1141, 1165 (CIT 2000)

(noting that it would be legal error for Commerce to fail “to consider or discus record

evidence which, on its face, provides significant support for an alternative

conclusion”).

Cheng Shin’s argument in its briefs and before Commerce attempts to have it

both ways. Contrary to its statements before Commerce, Cheng Shin now asserts

that, when selecting a tire service type, “none of [them] strictly applied” to Cheng

Shin’s tires; but during the investigation, it stated that the TRA Yearbook classified

Court No. 21-00398 Page 24

the tires as passenger tires. Compare Pl.’s Reply at 9, ECF No. 58, with

Administrative Case Brief at 6 n.10, J.A. at 100,574, ECF No. 61. In its reply brief,

however, Cheng Shin concedes that it chose the designation passenger tire “based on

the physical characteristics of the tires, and not based on intended use[.]”® Pl.’s Reply

at 11, ECF No. 58. Cheng Shin thus seeks to drive a wedge between the physical

characteristics of the tires as indicated by their TRA Yearbook designation and their

“intended use.” Id.

Nothing in the language of the exclusion requires Commerce to ignore the

physical characteristics of the tires that correspond to the TRA Yearbook

classification. Commerce reasonably construed the exclusive design requirement to

extend to the classification and corresponding physical characteristics of the tires in

question. Without some relation to the physical characteristics, the design

requirement would collapse into the exclusive marketing requirement and have no

independent meaning. Compare Revised Exclusion at 2, J.A. at 12,294, ECF No. 60

(“Excluded from the scope are tires designed and marke[te]d exclusively as

“temporary-use” or “spare” tires for light trucks... .”), with Williams v. Taylor, 529

U.S. 362, 404 (2000) (noting that, when interpreting legal texts, “[i]Jt is... a cardinal

eee

principle” to “give effect, if possible, to every clause and word”) (quoting Inhabitants

8 The Court also notes that Cheng Shin’s representations to Commerce with respect to the tire service

type were inconsistent. In its initial product characteristics comments, it claimed that the tires in

question did not fit under the TRA Yearbook at all and proposed a fourth category of light truck tires

with reduced tread depth. See Characteristic Comments at 3, J.A. at 4,848, ECF No. 60. Then, later

in the investigation, Cheng Shin admitted that the tires would be classified as passenger tires under

the TRA Yearbook. See Administrative Case Brief at 6n.10, J.A. at 100,574, ECF No. 61.

Court No. 21-00398 Page 25

of Montclair Tp. v. Ramsdell, 107 U.S. 147, 152 (1883)), WEBSTER’S THIRD NEW INT'L

DICTIONARY (1968) (defining “design” to include “to plan and plot out the shape and

disposition of the parts of and the structural constituents of’), and WEBSTER’S NEW

INT'L DICTIONARY (2d ed. 1956) (“[t]o sketch as a pattern or model”). Cheng Shin does

not offer an alternative interpretation of the words of the exclusion that would give

effect to the word “designed,” see Pl.’s Reply at 11-12, ECF No. 58 (equating “designed

and marketed” solely with intended use), nor does it suggest that Commerce’s

consideration of the tires’ physical characteristics was unreasonable. Cf. PL.’s Mot. at

20, ECF No. 42 (observing only that Commerce’s analysis was “not required by the

scope language,” not that it was impermissible).

Cheng Shin responds that the Union admitted temporary-use light truck tires

have no TRA Yearbook listing; hence, the listing is not relevant to the exclusion. See

PL.’s Reply at 8, ECF No. 58. Although it is true that temporary-use light truck tires

have no special heading under the TRA Yearbook, it is a non-sequitur that Cheng

Shin’s classification of its tires as passenger tires under the TRA Yearbook is

irrelevant. If excluded temporary-use light truck tires have no classification and

Cheng Shin’s tires do have a classification as passenger tires, then that is only further

evidence that they do not qualify for the exclusion.

Cheng Shin advances three other arguments in support of its contention that

Commerce’s decision was not supported by substantial evidence: (1) Commerce

misinterpreted a load chart Cheng Shin included in its customer agreements; (2) the

Court No. 21-00398 Page 26

customer agreements manifest the exclusivity that the exclusion required; and (3) the

tires do not have a dual-use. See Pl’s Mot. at 20-21, 24-26, ECF No. 42. Given

Cheng Shin’s repeated affirmations during the investigation that its tires meet the

standards of passenger tires, Cheng Shin’s other arguments are also unavailing.

Cheng Shin explains that the load capacity chart attached to its sales contracts

“reproduces the standard load capacity at different inflation pressures for tires with

the particulary size dimensions”; therefore, it did not manifest a dual-use. Jd, at 25.

Plaintiff also argues that the customer agreements clearly manifest an intent for its

customer to use the tires exclusively as temporary-use light truck tires. Jd. at 20-27.

But Commerce’s interpretation of the load capacity chart as permitting the tires to

have a dual-use was not clearly erroneous based on the record before it. The chart

shows load and capacity for both passenger and truck tires with no explanation

provided by Cheng Shin. See Questionnaire Response at Exhibit VE-7-A, J.A. at

100,352, ECF No. 61. Similarly, at oral argument, counsel for the Union pointed out

that only one of the contracts Cheng Shen submitted matched the characteristics of

a tire that it sought to have excluded; and the chart for that one contract showed only

load data for passenger cars. See Oral Arg. Tr. 34:5-16, ECF No. 76. Cheng Shin’s

counsel countered that the charts were just generic and that mismatches between the

submitted contracts and the technical drawings of the tires were a result of

discrepancies in the customer’s files. See td, 41:19-24.

Court No. 21-00398 Page 27

This back-and-forth only serves to emphasize that it was Cheng Shin’s burden

— not Commerce’s — to build the record in this case. See QVD, 658 F.3d at 1824.

Cheng Shin’s proffered best evidence fails to point unambiguously in the direction of

a finding that the subject tires “were designed .. . exclusively” as temporary use light

truck tires. Commerce must base its decisions on the record before it, and the record

in this case contains evidence pointing in different directions that Commerce had to

weigh. See 19 U.S.C. §§ 1516a(b)(1)-(2). It is not the role of the Court to reweigh the

evidence. Downhole Pipe, 776 F.3d at 1876. Even assuming that the customer

contracts unambiguously had shown an intent for Cheng Shin’s customer to use the

tires exclusively for light trucks, Cheng Shin’s admissions to Commerce that it

created the tires under a passenger car standard would still provide Commerce with

substantial evidence for its determination that the tires were not designed exclusively

as spare truck tires. Questionnaire Response at VE-12, J.A. at 97,838, ECF No. 61.

Cheng Shin’s attempt to prove now to the Court that the tires are unfit for use

as passenger tires or spare passenger tires is Inconsistent with the repeated

affirmations it made during the investigation that the tires meet the standards of

passenger tires. Cheng Shin cannot use litigation to rewrite the submissions it made

to Commerce during the investigation. Cf, e.g., @VD, 658 F.3d at 1824 CQVD is in

an awkward position to argue that Commerce abused its discretion by not relying on

evidence that QVD itself failed to introduce into the record[.]”); Linyt City Kangfa

Foodstuff Drinkable Co., Lid. v. United States, No. 15-00184, 2016 WL 5122648 at *2

Court No, 21-00398 Page 28

(CIT 2016) (“QVD Foods cannot be read as requiring Commerce to act to ferret out

‘necessary’ information for the record.”). A reasonable mind would have taken Cheng

Shin’s submissions at face value, and that is just what Commerce did. See Oral Arg.

Tr. 58:15-17, ECF No. 76 (The Court: “They put 1 [indicating passenger tire] down

and you took them at their word?” Ms. Speck: “Yes, Your Honor.”). Because “the

court may not substitute its judgment for that of the [agency] when the choice is

3

‘between two fairly conflicting views,” substantial evidence supports Commerce’s

determination. Goldlink Indus. Co. v. United States, 431 F. Supp. 2d 1323, 1326 (CIT

2006) (quoting Universal Camera Corp., 340 U.S. at 488) (alteration in original).

B. Commerce Did Not Unlawfully Modify the Scope of the Order

Cheng Shin claims that Commerce unlawfully modified the scope of the order

because the Union agreed that Cheng Shin’s tires met the requirements of the

exclusion that the two parties had negotiated and submitted to Commerce. Pl.’s Mot.

at 27-28, ECF No. 42 Cheng Shin also argues that the exclusion was specifically

designed to “exclude the . . . temporary-use light truck spare-tire models identified in

Cheng Shin’s initial scope comments.” Id. at 28. Commerce and the Union both deny

that they made any such agreement with respect to the tires in question. Def.’s Resp.

at 21-22, ECF No. 53; Def.-Int.’s Resp. at 14-15, ECF No. 49. The record does not

support Cheng Shin’s assertions. Commerce did not unlawfully modify the scope of

the order.

Court No, 21-00398 Page 29

Commerce has discretion to determine the scope of an order to remedy

unlawful dumping. See Mitsubishi Elec. Corp. v. United States, 898 F.2d 1577, 1582-

83 (Fed. Cir. 1990). Commerce, however, “cannot ‘interpret’ an antidumping order so

as to change the scope of that order, nor can Commerce interpret an order in a manner

contrary to its terms.” Duferco Steel, Inc. v. United States, 296 F.3d 1087, 1095 (Fed.

Cir, 2002) (quoting Eckstrom Indus., Inc. v. United States, 254 F.3d 1068, 1072 (Fed.

Cir, 2001)); accord Fedmet Res. Corp. v. United States, 755 F.3d 912, 921-22 (Fed.

Cir. 2014). If a question about an order’s scope is “asked and answered during the

underlying investigations,” then that answer cannot be subsequently changed by

Commerce. Fedmet Res., 755 F.3d at 920. As long as these limits are respected,

Commerce “enjoys substantial freedom to interpret and clarify its antidumping

orders.” Novosteel SA v. United States, 284 F.3d 1261, 1269 (Fed. Cir. 2002) (quoting

Ericsson GE Mobile Communications, Inc. v. United States, 60 F.3d 778, ‘782 (Fed.

Cir. 1995)).

Cheng Shin cites Fedmet Resources in support of its argument that Commerce

unlawfully changed the scope of the order, but the case is inapposite. Pl.’s Reply at

5, ECF No. 58. In Fedmet Resources, Commerce determined that particular magnesia

alumina carbon bricks were within the scope of an antidumping order even though

the petitioner requesting the order had disclaimed that view in the initial

investigation. 755 F.3d at 914-18. The petitioner had “requested initiation of

antidumping and countervailing duty investigations on imports of certain MCBs

Court No. 21-00398 Page 30

[magnesia carbon bricks] from China and Mexico.” fd, at 914. It distinguished

magnesia carbon bricks from other types of bricks in its petition, prompting

Commerce to clarify whether the petitioner only wanted to focus on magnesia carbon

bricks. fd. The petitioner clarified that the scope of the investigation should be

confined to magnesia carbon bricks only and not extend to magnesia alumina bricks

described in generic terms. Id. at 914-15. After the initial investigation concluded,

Fedmet Resources requested a scope ruling on its magnesia alumina bricks. 755 F.3d

at 916. Despite the original petitioner’s explicitly excluding this category of bricks in

the investigation, Commerce determined that they were within the scope of the

antidumping order. Jd. at 917. The Federal Circuit reversed Commerce’s

determination because the underlying investigation “contain[ed] multiple

representations made by [the petitioner] disclaiming coverage of all [magnesia

alumina carbon] bricks in general.” Id. at 919. Therefore, the question of whether

magnesia alumina carbon bricks were within the scope of the order was “asked and

answered during the underlying investigations.” Jd. at 920.

Fedmet Resources is distinguishable because here the Union negotiated

multiple, specific requirements for the exclusion. See Petitioner Scope Rebuttal at 6,

J.A. at 8,601, ECF No. 60 (“Petitioner requests that if Commerce does grant any

exclusion for light truck temporary spare tires, it include all the requirements

explained above in that exclusion.”). It never agreed to exclude Cheng Shin’s specific

tires; only those tires that could meet each of the negotiated criteria would be

Court No. 21-003898 Page 31

excluded. See id. In Fedmet Resources, by contrast, “the Petitioner said that [it was]

disclaiming coverage of all [magnesia alumina carbon] bricks in general.” Fedmet

Res., 755 F.3d at 919 (emphasis added). It gave a blank check to exclude an entire

product category with no other requirements. [d, Cheng Shin did not find as lenient

a negotiating partner in the Union. Thus, Cheng Shin — unlike the plaintiff in

Fedmet Resources -~- had to meet the specific requirements it negotiated as opposed

to benefitting from a general exclusion for all tires used as temporary-use light truck

tires,

Cheng Shin agreed to this multi-pronged exclusion after it classified its tires

as passenger tires under the TRA Yearbook in its Section B and Section C responses

on September 25, 2020, and September 29, 2020, respectively. Cheng Shin’s Section

B Response at B-11-12, J.A. at 85,352-53, ECF No. 61; Section C Response at Exhibit

C-4, J.A. at 88,770—72, ECF No. 61. It placed this information on the record despite

having been warned “reporting tires as different service types would normally be

determinative on matching.” Product Characteristics Rebuttal at 10 n.36, J.A. 6,097,

ECF No. 60. Months later, Cheng Shin agreed to the Union’s revised scope exclusion

language that added the “designed and marketed exclusively” requirement. See

Revised Exclusion (Dec. 10, 2020), J.A. at 12,293-94, ECF No. 60. Cheng Shin agreed

to a narrow exclusion that was in tension with the information it had already placed

on the record. Then, after agreeing to language requiring exclusivity of design, it

twice again affirmed that its tires met the standards of passenger tires.

Court No. 21-00398 Page 32

Administrative Case Brief at 6-7, J.A. at 100,574-75, ECF No. 61; Questionnaire

Response at VE-13, J.A. at 97,834, ECF No. 61.

The Union was careful to state in its rebuttal comments to Cheng Shin’s

exclusion request that Cheng Shin “avers” that its tires meet the exclusivity

requirements. Petitioner's Scope Rebuttal at 5, J.A. at 8,600, ECF No. 60. In its

agreement to the final revised exclusion, the Union stated that “it does not oppose

the request for the exclusion of light truck spare tires if the full language Cheng Shin

has proposed is used.” Petitioner's Response on Cheng Shin’s Scope Request, at 1-2,

J.A. at 12,300-01, ECF No. 60. The Union, therefore, only agreed to the specific

language of the exclusion for light truck spare tires and never the application of that

language to exclude Cheng Shin’s tires. Unlike in Fedmet Resources, the question of

whether the exclusion covered Cheng Shin’s tires was never “asked and answered

during the underlying investigation.” 755 F.3d at 920. Commerce did not unlawfully

modify the scope. Cheng Shin negotiated an exclusion for which its tires did not

qualify based on the record it built before the agency. There is no legal error.

C. The Subsequent Scope Ruling Is Irrelevant

Finally, the Court must address whether to remand so that Commerce can

reconsider its determination based on a subsequent scope ruling. See Pl.’s Reply at

15, ECF No. 58. Cheng Shin appended the results of a subsequent scope ruling to its

reply brief and asserts that Commerce acted unlawfully in this case because the later

ruling granted an exclusion to allegedly similar tire models. Id. at 14-15, 21. Cheng

Court No. 21-00398 Page 33

Shin states that neither Commerce nor the Union objected to Cheng Shin’s failure to

provide a TRA Yearbook classification for the tires in the subsequent scope ruling.

Thus, it claims that the Union’s objections in this case “based on the reported TRA

tire service type... are without merit.” Jd. at 21. Commerce counters that Cheng

Shin placed the TRA Yearbook service type onto the record in this investigation and

did not do so in the subsequent scope ruling. Def.’s Sur-Reply at 2, ECF No. 665.

Commerce also argues that prior administrative decisions do not bind it, and the

different conclusions are by virtue of the different records before the agency in each

investigation. fd. at 3. Because the subsequent decision is not on the record here,

the Court holds Commerce need not have considered it.

Prior scope rulings do not bind Commerce because “each administrative review

is a separate exercise of Commerce’s authority that allows for different conclusions

based on different facts in the record.” Qingdao, 766 F.3d at 1387. However, an

agency must give sufficient reasons for treating similar situations differently. SAF

USA, Inc. v. United States, 263 F.3d 1369, 1382 (Fed. Cir. 2001); accord Torrington

Co. v. United States, 881 F. Supp. 622, 648 (CIT 1995), affd, 127 F.8d 1077 (Fed. Cir.

1997). Commerce’s obligation to explain its different treatment of similar situations

only arises, however, if the inconsistency is on the record and was presented to

Commerce when it made its decision. See Unicatch Indus. Co. v. United States, 539

F. Supp. 8d 1229, 1249 (CIT 2021) (“Without any basis for comparing Commerce’s

purportedly inconsistent decisions, the court finds no reason to remand the issue in

Court No. 21-00398 Page 34

this proceeding.”), “Plaintiffs generally may not supplement th[e] record on judicial

review” with materials from a subsequent administrative action. Hoogovens Staal

BV v. United States, 4 F. Supp. 2d 1218, 1218 (CIT 1998); accord Luoyang Bearing

Factory v. United States, 240 F, Supp. 2d 1268, 1300 n.28 (CIT 2002) (citing

Hoogovens Staal). As such, “potentially inconsistent administrative action in

successive administrative reviews (if challenged), arises in the latter of the two

proceedings, not the former.” Home Prods. Intl, Inc. v. United States, 662 F. Supp.

2d 1360, 1364 (CIT 2009).

A few points quickly illustrate that the subsequent ruling is not relevant to the

resolution of this case. First, the subsequent scope ruling was not on the record before

Commerce when it made its initial decision, and “the issue was not presented to

Commerce in that segment of the proceeding for the agency to explain its

determination.” Unicatch, 539 F. Supp. 3d at 1248-49. Consequently, the

subsequent ruling does not speak to the question of whether substantial evidence

supports the prior ruling because the subsequent ruling was not before the agency

when it made the decision challenged here.

Second, the purported inconsistency is “not a prior administrative precedent”

of the challenged action. Home Prods., 662 F. Supp. 2d at 1864. Cheng Shin can only

challenge the purported inconsistency in the subsequent proceeding because the

inconsistency is created by the subsequent decision. Jd. The purported inconsistency,

therefore, is irrelevant to the challenged decision before the Court. See Hoogovens

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Staal, 4 F. Supp. 2d at 1218 (“The Court can not [sic] consider evidence presented in

the second administrative review when it reviews the first administrative review.”).

Third, even if the challenged decision was relevant, it is undisputed that the

record in the initial investigation and the subsequent scope rulings differed in

significant respects. See Pl.’s Reply at 21, ECF No. 58 (stating that the TRA service

type was not part of the record in the subsequent ruling); Def.’s Sur-Reply at 2, ECF

No, 65 [T]he TRA was not on the record in the [subsequent] scope proceeding, but it

was on the record in this [initial] investigation.”). It is hardly surprising that, given

the multiple unforced errors Cheng Shin committed in the underlying proceedings, it

changed tactics in subsequent proceedings. That it wisely chose to do so does not save

it from the consequences of the answers it gave here.

CONCLUSION

Cheng Shin negotiated for an exclusion whose plain language required that any

excluded tires must be “designed and marketed exclusively” as temporary-use light

truck tires. It then proceeded to submit information to Commerce explaining how

much like passenger car tires its truck tires were. It is not the job of the Court to

save Cheng Shin from itself. That Commerce could have perhaps taken a more

lenient view does not compel Commerce to do so. Accord Universal Camera Corp.,

340 U.S. at 488 (holding that a court cannot “displace the [agency’s] choice between

two fairly conflicting views”). Having given Commerce and the Union the rope with

which to hang it, Cheng Shin may not now complain about the sentence. The decision

Court No. 21-003898 Page 36

of the Commerce Department is AFFIRMED as supported by substantial evidence

and in accordance with the law. See 19 U.S.C. § 1516a(b)(1)(B)@). Plaintiffs Motion

for Judgment on the Agency Record is DENIED.

Ay Uh,

Stephen Alexander Vaden, Judge

ae

Dated: Lrg /3 2023

New York, New York