HEBEI JIHENG CHEMICALS CO., 

LTD., 

Plaintiff, 

v. 

UNITED STATES, 

Defendant. 

 Slip Op. 16 -  

UNITED STATES COURT OF INTERNATIONAL TRADE 

OPINION 

[final countervailing duty determination affirmed] 

Dated: February 

Lizbeth R. Levinson and Ronald M. Wisla, Kutak Rock 

LLP, of Washington, DC, for Plaintiff, Hebei Jiheng Chemicals 

Co., Ltd. 

David F. D’Alessandris, Trial Attorney, Commercial 

Litigation Branch, Civil Division, U.S. Department of Justice, 

of Washington, DC, for the Defendant. With him on the brief were 

Benjamin C. Mizer, Principal Deputy Assistant Attorney General, 

Jeanne E. Davidson, Director, and Patricia M. McCarthy, 

Assistant Director. Of counsel was Lisa W. Wang, Attorney, 

Office of the Chief Counsel for Import Administration, U.S. 

Department of Commerce, of Washington, DC. 

James R. Cannon, Jr. and Ulrika K. Swanson, Cassidy 

Levy Kent (USA), LLP, of Washington, DC, for DefendantIntervenors Clearon Corp. and Occidental Chemical Corp. 

Pogue, Senior Judge: In this action, Plaintiff Hebei 

Jiheng Chemicals Co., Ltd. (“Jiheng”) challenges the final 

determination of the U.S. Department of Commerce (“Commerce”) in 

the countervailing duty (“CVD”) investigation of chlorinated 

Before: Donald C. Pogue, 

Senior Judge 

Court No. 14-00337 
Court No. 14-00337 Page 2 

isocyanurates from the People’s Republic of China (“PRC”).1 

Plaintiff challenges Commerce’s determination, claiming that 

Commerce misread the record regarding preferential electricity 

rates provided to the Plaintiff by the Government of China 

(“GOC”), and thereby “vastly overstated the calculated net 

benefit” conferred on Plaintiff and impermissibly applied 

adverse facts available (“AFA”) to Plaintiff, a cooperating 

respondent.2

Because Commerce’s benefit calculation was based on a 

reasonable reading of the record evidence, its decision is 

supported by substantial evidence. Because Commerce’s 

1

 Compl., ECF No. 7, at ¶¶ 1-2; see Chlorinated Isocyanurates 

from the [PRC], 79 Fed. Reg. 56,560 (Dep’t Commerce Sept. 22, 

2014) (final affirmative countervailing duty determination; 

2012) (“Final Determination”) and accompanying Issues & Decision 

Mem., C-570-991, Investigation (Sept. 8, 2014) (“Final I&D 

Mem.”). Jiheng is “a Chinese producer and exporter to the 

United States of subject chlorinated isocyanurates.” Mem. of P. 

& A. in Supp. of Pl.’s Mot. for J. on the Agency R., ECF No. 

25-2 (“Pl.’s Br.”), at 1. Chlorinated isocyanurates, as defined 

by the scope of the Final Determination, are “derivatives of 

cyanuric acid, described as chlorinated s-triazine triones,” the 

“three primary chemical compositions of chlorinated 

isocyanurates” being “(1) Trichloroisocyanuric acid (‘TCCA’) 

(Cl3(NCO)3), (2) sodium dichloroisocyanurate (dihydrate) 

[(‘SDIC’)] (NaCl2(NCO)3 X 2H2O), and (3) sodium 

dichloroisocyanurate (anhydrous) (NaCl2(NCO)3).” Final 

Determination, 79 Fed. Reg. at 56,561. 

2

 Pl.’s Br., ECF No. 25-2, at 5-15. The court has jurisdiction 

pursuant to § 516A(a)(2)(B)(i) of the Tariff Act of 1930, as 

amended, 19 U.S.C. § 1516a(a)(2)(B)(i) (2012) and 28 U.S.C. 

§ 1581(c) (2012). All further citations to the Tariff Act of 

1930, as amended, are to Title 19 of the U.S. Code, 2012 

edition. 
Court No. 14-00337 Page 3 

application of AFA to the GOC, and the collateral impact of that 

decision on Plaintiff, is reasonably within the agency’s 

discretion, its decision is in accordance with law. The court, 

accordingly, affirms. 

BACKGROUND 

In the administrative proceeding challenged here, 

Commerce initiated a CVD investigation, following a petition 

filed by Defendant-Intervenors,3

 to determine whether producers 

and exporters of chlorinated isocyanurates in the PRC had 

received countervailable subsidies within the meaning of 

19 U.S.C. §§ 1671, 1677(5).4

 Commerce selected Plaintiff as one 

of two mandatory respondents.5

3

 Clearon Corp. and Occidental Chemical Corp. are domestic 

producers of chlorinated isocyanurates. Chlorinated 

Isocyanurates from the [PRC], 78 Fed. Reg. 59,001, 59,001 (Dep’t 

Commerce Sept. 25, 2013) (initiation of countervailing duty 

investigation) (“CVD Initiation”). 

4

 CVD Initiation, 78 Fed. Reg. at 59,001. Commerce will impose a 

countervailing duty on an import whenever it determines that 

“the government of a country . . . is providing, directly or 

indirectly, a countervailable subsidy with respect to the 

manufacture, production, or export of a class or kind of 

merchandise imported, or sold (or likely to be sold) for 

importation, into the United States.” 19 U.S.C. § 1671(a)(1). 

The International Trade Commission must also find that “an 

industry in the United States” is “materially injured” or 

“threatened with material injury,” by the importation of those 

imports. Id. at § 1671(a)(2). The International Trade 

Commission’s determination is not at issue in this case. A 

subsidy is countervailable when it provides a “financial 

contribution” to a “specific” industry, and “a benefit is 

thereby conferred” upon the respondent. Id. at §§ 1677(5), (5A). 

(footnote continued) 
Court No. 14-00337 Page 4 

To investigate the Petitioner’s allegation that the 

GOC had subsidized respondents’ electricity costs, Commerce sent 

initial and supplemental questionnaires to the GOC and mandatory 

respondents.6

 While respondents’ filings were responsive,7 the 

A benefit is conferred upon a respondent when “goods or 

services,” such as electricity, “are provided for less than 

adequate remuneration.” Id. at § 1677(5)(E)(iv). Ideally, the 

“adequacy of remuneration” is measured by “comparing the 

government price,” the price paid by the respondent, “to a 

market-determined price for the good or service resulting from 

actual transactions in the country in question,” the benchmark 

price. 19 C.F.R. § 351.511(a)(2)(i) (2012). 

5

 Chlorinated Isocyanurates from the [PRC], 79 Fed. Reg. 10,097, 

10,098 (Dep’t Commerce Feb. 24, 2014) (preliminary determination 

and alignment of final determination with final antidumping 

determination) and accompanying Issues & Decisions Mem., C—570-

991, Investigation (Feb. 11, 2014) (“Prelim. I&D Mem.”) at 3 

(selecting Plaintiff and Juancheng Kangtai Chemical Co., Ltd., 

as mandatory respondents based on their status as the largest, 

by volume, producers/exporters of chlorinated isocyanurates from 

the PRC to the United States during the period of 

investigation); see 19 U.S.C. § 1677f-1(e)(2)(A)(ii) (“If the 

administering authority determines that it is not practicable to 

determine individual countervailable subsidy rates [for each 

known exporter or producer of subject merchandise] because of 

the large number of exporters or producers involved in the 

investigation or review, the administering authority may . . . 

determine individual countervailable subsidy rates for a 

reasonable number of exporters or producers by limiting its 

examination to . . . exporters and producers accounting for the 

largest volume of the subject merchandise from the exporting 

country that the administering authority determines can be 

reasonably examined.”); 19 C.F.R. § 351.204(c) (“[Commerce] may 

limit the investigation using [the] method described in 

[19 U.S.C. § 1677f-1(e)(2)(A)(ii)]”). 

6

 Prelim. I&D Mem., supra note 5, at 1-2. To determine whether 

there is a countervailable subsidy, “Commerce often requires 

information from the foreign government allegedly providing 

[that] subsidy.” Fine Furniture (Shanghai) Ltd. v. United 

States, 748 F.3d 1365, 1369-70 (Fed. Cir. 2014); see Final I&D 

(footnote continued) 
Court No. 14-00337 Page 5 

GOC did not provide, in either questionnaire, requested 

province-specific information on its electricity pricing 

practices.8

 “[N]ecessary information regarding the GOC’s 

provision of electricity [was therefore] not on the record.”9

Consequently, Commerce had to “rely on facts otherwise 

available,” pursuant to 19 U.S.C. § 1677e(a) to evaluate the 

GOC’s electricity pricing practices.10 Further, Commerce found 

that “the GOC [had] failed to cooperate by not acting to the 

best of its ability,” and determined that “an adverse inference 

was warranted in its application of the facts available” 

provision, pursuant to 19 U.S.C. § 1677e(b).11 

Drawing adverse inferences regarding the facts 

available, Commerce determined that the GOC’s provision of 

electricity was “a financial contribution within the meaning of 

[19 U.S.C. § 1677(5)(D)] and [was] specific within the meaning 

Mem., supra note 1, at 21 (“In a CVD case, [Commerce] requires 

information from both the government of the country whose 

merchandise is under investigation and the foreign producers and 

exporters.”). 

7

 Final I&D Mem., supra note 1, at 21. 

8

 Final Determination, 79 Fed. Reg. at 56,561; Final I&D Mem., 

supra note 1, at 9. 

9

 Final Determination, 79 Fed. Reg. at 56,561. 

10 Id. 

11 Id. 
Court No. 14-00337 Page 6 

of [19 U.S.C. § 1677(5A)].”12 These determinations are 

uncontested here.13 Commerce also used adverse facts available 

when it selected the benchmark rates used to calculate the 

benefit conferred on the respondents.14 Specifically, for the 

benchmark Commerce selected the highest electricity rates on the 

record for the respondents’ rate and user categories, the large 

industry rate schedule for Zhejiang province.15 “To calculate 

the benefit,” Commerce “subtracted the amount paid by the 

respondents for electricity”16 from the “benchmark electricity 

12 Id. 

13 Pl.’s Br., ECF No. 25-2, at 5 (“Jiheng does not dispute 

Commerce’s application of [AFA] with respect to the provision of 

electricity for [less than adequate remuneration].”). 

14 Final Determination, 79 Fed. Reg. at 56,561; Final I&D Mem., 

supra note 1, at 21 (“This benchmark reflects an adverse 

inference, which [Commerce] drew as a result of the GOC’s 

failure to act to the best of its ability in providing requested 

information about its provision of electricity in this 

investigation.”). 

15 Final I&D Mem., supra note 1, at 10, 21, 30; Prelim. Benchmark 

Mem., Chlorinated Isocyanurates from the [PRC], C-570-991, 

Investigation (Feb. 11, 2014) (adopted in Final Determination, 

79 Fed. Reg. at 56,561; Final I&D Mem., supra note 1, at 10) 

(“Prelim. Benchmark Mem.”) at 1, attach. 1 (electricity 

benchmark table), reproduced in Def.’s App. in Supp. of Mem. in 

Opp’n to [Pl.’s Br.], ECF No. 30-1 (“Def.’s App.”) at Tab 4; 

see also GOC’s Initial Questionnaire Resp., Chlorinated 

Isocyanurates from the [PRC], C-570-991, Investigation (Dec. 20, 

2013) at Ex. E2-3 (Electricity Sales Schedule of Zhejiang Grid), 

reproduced in Def.’s App., ECF No. 30-1 at Tab 2 (“Zhejiang 

Electricity Schedule”). 

16 Commerce “relied on [respondents] records” to “the extent that 

[they were] usable and verifiable,” to determine what the 

(footnote continued) 
Court No. 14-00337 Page 7 

price.”17 Commerce accordingly determined that “subsidies [had] 

been provided to producers and exporters of chlorinated 

isocyanurates . . . in the [PRC],”18 and that Jiheng’s total 

estimated countervailable subsidy rate was 20.06 percent.19 

Plaintiff challenges this determination as unsupported 

by substantial evidence and not in accordance with law, first 

alleging that Commerce “misinterpreted the . . . [Zhejiang] 

electricity schedule” as a three-tier rather than four-tier 

pricing system,20 and second claiming Commerce incorrectly 

selected “large industry” rates rather than rates “specific to 

respondents actually paid for electricity. Final I&D Mem., supra

note 1, at 21. Commerce found that Hebei Jiheng Group Co., Ltd. 

(“Jiheng Group”), “a holding company and majority shareholder of 

Jiheng, which provides raw materials (sulfuric acid and steam) 

to Jiheng and other affiliated companies,” Prelim. I&D Mem., 

supra note 5, at 5, was found to have “failed to report its 

electricity purchases for one of its branch companies,” such 

that “necessary information regarding [its] electricity 

purchases [were] not on the record,” and Commerce had to “rely 

on facts otherwise available in this final determination in 

calculating the Jiheng Group's CVD rate,” Final Determination, 

79 Fed. Reg. at 56,561 (citing 19 U.S.C. § 1677e(a)). Commerce 

further found that “Jiheng Group failed to cooperate by not 

acting to the best of its ability and, consequently, an adverse 

inference is warranted in the application of facts available.” 

Id. (citing 19 U.S.C. § 1677e(b)). 

17 Final I&D Mem., supra note 1, at 22. From this benefit, 

Commerce calculated the respondents’ respective countervailable 

subsidy rates. Id. 

18 Id. at 1; Final Determination, 79 Fed. Reg. at 56,560. 

19 Final Determination, 79 Fed. Reg. at 56,562. 

20 Pl.’s Br., ECF No. 25-2, at 6; see generally id. at 5-11. 
Court No. 14-00337 Page 8 

chlor-alkali producers.”21 Plaintiff argues that, in so doing, 

Commerce incorrectly benchmarked respondents’ electricity rates, 

thereby “vastly overstat[ing] the calculated net benefit” to the 

Plaintiff22 and “effectively appli[ng] an adverse inference to 

[Plaintiff], over and above applying the intended adverse 

inference to the GOC.”23 Defendant and Defendant-Intervenors 

counter that Commerce’s determination was supported by 

substantial evidence and in accordance with law because 

Commerce’s benchmark selection was based on a reasonable reading 

of the record evidence and Plaintiff was not impermissibly 

affected by the application of adverse inferences to the GOC.24

STANDARD OF REVIEW 

The court will sustain Commerce’s determination unless 

it is “unsupported by substantial evidence on the record, or 

otherwise not in accordance with law.”25 

Substantial evidence review requires consideration of 

“the record as a whole, including any evidence that fairly 

21 Id. at 12; see generally id. at 11-15. 

22 Id. at 10, 12. 

23 Id. at 10, 14-15. 

24 Def.’s Mem. in Opp’n to [Pl.’s Br.], ECF No. 30; Resp. Br. of 

Clearon Corp. & Occidental Chem. Corp., ECF No. 31. 

25 19 U.S.C. § 1516a(b)(1)(B)(i). 
Court No. 14-00337 Page 9 

detracts from the substantiality of the evidence,”26 and asks, in 

light of that evidence, whether Commerce’s determination was 

reasonable.27 

As relevant here, review for “accordance with law,” 

asks, where “Congress directly spoke to the precise question at 

issue and clearly expressed its purpose and intent in the 

governing statute,” whether the agency’s determination is in 

accordance with that statute; or, if Congress has not spoken 

directly on the issue, “the agency’s interpretation” is “a 

reasonable construction of the statute.”28 

DISCUSSION 

To calculate the benefit conferred by a 

countervailable subsidy, Commerce compares a benchmark price to 

the price actually paid by the respondent.29 Here, drawing an 

adverse inference against the GOC, Commerce selected, from the 

26 Gallant Ocean (Thailand) Co. v. United States, 602 F.3d 1319, 

1323 (Fed. Cir. 2010) (internal quotation marks and citation 

omitted). 

27 Nippon Steel Corp. v. United States, 458 F.3d 1345, 1351 (Fed. 

Cir. 2006). 

28 Yangzhou Bestpak Gifts & Crafts Co. v. United States, 716 

F.3d 1370, 1377 (Fed. Cir. 2013) (citing Chevron, U.S.A., Inc. 

v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43 

(1984)). 

29 19 U.S.C. § 1677(5)(E); 19 C.F.R. § 351.511(a)(2)(i); see Fine 

Furniture, 748 F.3d at 1370. 
Court No. 14-00337 Page 10 

facts available on the record, the large industry rates from 

Zhejiang province for the benchmark, because those rates were 

the “highest electricity rates on [the] record” for the 

“applicable rate and user categories.”30 Because respondents 

were cooperative, Commerce relied on the respondent’s own 

records, “to the extent [they were] usable and verifiable,” to 

determine their actual electricity consumption and rates paid.31

In comparing the two sets of rates, Commerce 

determined that the Zhejiang province electricity schedule was a 

three-tier pricing system, with rates varying by time of usage.32 

Jiheng reported its electricity consumption and rates based on 

30 Final I&D Mem., supra note 1, at 10; Prelim. Benchmark Mem., 

ECF No. 30-1 at Tab 4, at 1, attach. 1 (electricity benchmark 

table); Zhejiang Electricity Schedule, ECF No. 30-1 at Tab 2 at 

Ex. E2-3. 

31 See Final I&D Mem., supra note 1, at 21 (citation omitted). 

32 Final I&D Mem., supra note 1, at 30-31; Prelim. Benchmark 

Mem., ECF No. 30-1 at Tab 4, at attach. 1 (electricity benchmark 

table). That is, the Zhejiang Electricity Schedule provides (1) 

“Sharp Price” (also translated as “Critical Peak,” charged from 

19:00 to 21:00 each day); (2) “Peak Price” (charged from 08:00 

to 11:00, 13:00 to 19:00, and 21:00-22:00 each day); and (3) 

“Off-Peak Price” (also translated as “Valley,” charged from 

11:00 to 13:00 and 22:00 to 08:00 the following day). Zhejiang 

Electricity Schedule, ECF No. 30-1 at Tab 2 at Ex. E2-3. 

Commerce, “[b]ased on past practice, and [its] understanding of 

the PRC’s multi-tiered electricity system,” has “consistently 

interpreted these labels, including slightly varied translations 

thereof, to be a three-tiered ‘valley, normal, and peak’ rate 

structure and selected the highest rates from the ‘sharp’ 

category for the ‘peak’ benchmark rate.” Final I&D Mem., supra 

note 1, at 31 (footnote and citations omitted). 
Court No. 14-00337 Page 11 

the Southern Hebei electricity schedule, which has a four-tier 

pricing system.33 To adjust for this difference, Commerce 

aligned the lowest rate from Zhejiang (“Off Peak”) with the 

lowest rate from Southern Hebei (“Valley”), the next highest 

rate in Zhejiang (“Peak”) with the next highest rate in Southern 

Hebei (“Normal”), and the highest rate in Zhejiang (“Sharp”) 

with the next highest rate in Southern Hebei (“Peak”).34 Then, 

lacking a fourth Zhejiang rate, Commerce used the actual 

Southern Hebei “High Peak” for the benchmark.35

I. The Zhejiang “Four-Tier” Electricity Schedule 

Plaintiff first argues that Commerce’s determination 

is incorrect because the agency “misinterpreted the Zhejiang 

33 That is: (1) “High Peak”; (2) “Peak”; (3) “Normal”; and 

(4) “Valley.” GOC’s Initial Questionnaire Resp., Chlorinated 

Isocyanurates from the [PRC], C-570-991, Investigation (Dec. 20, 

2013) at Ex. E2-3 (Electricity Sales Schedule of Southern Hebei 

Power Grid), reproduced in [Pl.’s] App., ECF Nos. 26 (conf. 

ver.) & 27 (pub. ver.) at Tab 4; Section III Resp. of [Jiheng], 

Chlorinated Isocyanurates from the [PRC], C-570-991, 

Investigation (Dec. 23, 2013), reproduced in [Pl.’s] App., ECF 

Nos. 26 & 27 at Tab 3 (“Jiheng Section III Resp.”) at app. 26 

(Electricity Template of Hebei Jiheng) (“Jiheng Electricity 

Template”) (reporting Jiheng’s electricity consumption on the 

Southern Hebei four-tier schedule with high peak, peak, normal, 

and valley). 

34 See Prelim. Benchmark Mem., ECF No. 30-1 at Tab 4, at 

attach. 1; Final I&D Mem., supra note 1, at 30-31. 

35 See Prelim. Benchmark Mem., ECF No. 30-1 at Tab 4, at 

attach. 1 (providing the “S[outhern] Hebei” rate as the 

benchmark for each of the “High Peak” rates). 
Court No. 14-00337 Page 12 

electricity schedule” as a three-tier rather than four-tier 

pricing system and thereby “vastly overstated the net benefit 

attributable” to Plaintiff.36 Plaintiff claims that “Commerce 

totally ignored” the presence of the “KWH Electricity Tariff” in 

the Zhejiang electricity schedule.37 Plaintiff asserts that the 

KWH Electricity Tariff “corresponds to the ‘Normal’ price 

category in the Southern Hebei electricity schedule” because it 

applies in Zhejiang “when the three time-period rates [are] not 

[otherwise] applicable.”38 This, according to Plaintiff, proves 

that “the Zhejiang schedule, just like the Southern Hebei 

schedule, was, i[n] fact, a four-tiered price system.”39 

Commerce did not, however, “totally ignore” the 

Zhejiang KWH Electricity Tariff, but rather, considering the 

record evidence and reasonable inferences therefrom,40 expressly 

declined to adopt Plaintiff’s interpretation of the Zhejiang 

rate schedule. Commerce found “no basis to assume that the KWH 

36 Pl.’s Br., ECF No. 25-2, at 6, 10; see generally id. at 5-11. 

37 Id. at 6. 

38 Id. 

39 Id. 

40 See Matsushita Elec. Indus. Co. v. United States, 750 F.2d 

927, 933 (Fed. Cir. 1984) (“More specifically, [under the 

substantial evidence standard] the question . . . is whether the 

evidence and reasonable inferences from the record support 

[Commerce’s finding].”). 
Court No. 14-00337 Page 13 

Electricity Tariff would be representative of a normal rate.”41 

Indeed, as Commerce points out, the Zhejiang rate schedule 

provides no explanation or definition of what the KWH 

Electricity Tariff is or when it applies.42 Further, the threetier schedule, not including the KWH Electricity Tariff, covers 

all 24 hours of the day.43 

Plaintiff’s attempt at defining the KWH Electricity 

Tariff brings much heat but no light to the issue. Plaintiff 

makes various conclusory statements,44 argumentative 

41 Final I&D Mem., supra note 1, at 31. 

42 See Zhejiang Electricity Schedule, ECF No. 30-1 at Tab 2 at 

Ex. E2-3; Final I&D Mem., supra note 1, at 31 (noting that the 

“record is silent as to what the KWH Electricity Tariff 

represents” and that it is “unclear as to what time period the 

KWH Electricity Tariff covers,” leaving Commerce “no basis to 

assume that the KWH Electricity Tariff would be representative 

of a normal rate”). 

43 See Zhejiang Electricity Schedule, ECF No. 30-1 at Tab 2 at 

Ex. E2-3; Final I&D Mem., supra note 1, at 31. 

44 Plaintiff claims that the Zhejiang KWH Electricity Tariff is 

used “when the three time-period rates [on the Zhejiang 

schedule] [are] not applicable.” Pl.’s Br., ECF No. 25-2, at 6. 

From this, Plaintiff concludes that “the Zhejiang schedule, just 

like the Southern Hebei schedule, [is], i[n] fact, a four-tiered 

price system.” Id. “In fact” is a curious choice of words, 

given that Plaintiff offers no evidence on the record to support 

this position. Plaintiff offers only a re-reading of the 

Zhejiang schedule that is more to its liking. Plaintiff 

believes that the “Zhejiang schedule clearly provides four 

tariff rates” because the KWH Electricity Tariff “is placed in a 

column right next to the prices of Sharp, Peak and Off-Peak 

tariff rates,” id. at 8 (citation omitted), its use as the 

benchmark for “normal” would present a better numerical 

progression, id. at 7-8, and it is the “only tariff rate 

(footnote continued) 
Court No. 14-00337 Page 14 

pronouncements,45 and declarations of irrelevant facts.46 As 

such, Plaintiff accomplishes the ironic effect of supporting not 

applicable” to some types of users, id. at 9. “Necessarily,” 

Plaintiff says, “the [Zhejiang] KWH Electricity Tariff . . . is 

applicable in all cases where the other three rates are not 

applicable.” Id. at 8. But there is nothing necessary about 

this conclusion. The Zhejiang electricity rate schedule does 

not define the “KWH Electricity Tariff,” See Zhejiang 

Electricity Schedule, ECF No. 30-1 at Tab 2 at Ex. E2-3, and 

Plaintiff points to nothing on the record to suggest that it 

applies as a “normal rate” to users in Zhejiang province. 

Plaintiff only provides an alternative, unsubstantiated 

interpretation. This is not enough for this Court to remand to 

Commerce. “[T]he 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. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966) (citations 

omitted). 

45 Plaintiff argues that Commerce’s statement that “‘there is no 

evidence [on the record to demonstrate] that [this] is a higher 

rate than “peak,”’” Pl.’s Br., ECF No. 25-2, at 8 (misquoting 

Final I&D Mem., supra note 1, at 31), is “preposterous,” because 

“Commerce’s own benchmark includes a ‘High Peak’ category” and 

“the Southern Hebei electricity schedule . . . contains a ‘sharp 

peak’ or ‘high peak’ rate that is higher than the ‘peak’ rate,” 

id. However, Commerce’s statement is only “preposterous” when 

quoted out of context, as Plaintiff’s counsel has done. 

Commerce was not discussing the Southern Hebei schedule or even 

its benchmarks in this investigation, but rather its practice of 

using a three-tier benchmark pricing schedule, with “peak” being 

the generic label for the highest rate, regardless of the 

vagaries of translation. Final I&D Mem., supra note 1 at 31 

(“Based on past practice, and [Commerce’s] understanding of the 

PRC’s multi-tiered electricity system, [Commerce has] 

consistently interpreted [the Zhejiang labels of ‘sharp, peak, 

and off-peak’ or ‘critical peak, peak, and valley’], including 

slightly varied translations thereof, to be a three-tiered 

‘valley, normal, and peak’ rate structure and selected the 

highest rates from the ‘sharp’ category for the ‘peak’ benchmark 

rate. Moreover, we note that apart from the reference to a 

‘critical peak’ period, there is no evidence on the record to 

demonstrate that this is a higher rate than ‘peak.’”) (footnote 

(footnote continued) 
Court No. 14-00337 Page 15 

its own position but Commerce’s determination that “the record 

is silent as to what the KWH Electricity Tariff represents.”47 

Commerce’s determination is not rendered “mistaken”48

“faulty,”49 “untenable,”50 “preposterous,”51, or “nonsensical,”52

simply because Plaintiff’s counsel says it is. If Plaintiff 

thought Commerce’s three-tier interpretation incorrect, it 

should have developed the administrative record with information 

and citations omitted). 

46 Plaintiff asserts that its “reported electricity consumptions 

under the ‘Normal’ tariff rate of the Southern Hebei electricity 

schedule . . . is approximately equal to the monthly electricity 

consumptions reported under the Peak and Valley tariff rates, 

and is several time[s] larger than the monthly electricity 

consumptions under the Sharp tariff rate.” Pl.’s Br., ECF No. 

25-2, at 9 (citations omitted). “Accordingly,” Plaintiff’s 

counsel asserts, “consumption under the [Zhejiang] KWH 

electricity Tariff should similarly be expected.” Id. 

Plaintiff’s counsel would have the court infer that, based on 

Jiheng’s own consumption under the Southern Hebei schedule, the 

“KWH Electricity Tariff under the Zhejiang electricity schedule 

is a separate rate whose application is not limited by any time 

period . . . [and] used in instances when [the] Sharp[,] Peak 

and Off Peak tariffs are present, but not applicable.” Id. This 

is a non sequitur. Plaintiff’s own consumption under the 

Southern Hebei schedule has no bearing on what the Zhejiang KWH 

Electricity Tariff is or when it applies. It is irrelevant. 

47 Final I&D Mem., supra note 1, at 31. 

48 Pl.’s Br., ECF No. 25-2, at 6. 

49 Id. at 7. 

50 Id. 

51 Id. at 8. 

52 Id. at 8, 9. 
Court No. 14-00337 Page 16 

supporting its own four-tier interpretation.53 More importantly, 

the question for this Court is whether Commerce’s determination 

is supported by “such relevant evidence as a reasonable mind 

might accept as adequate to support a conclusion,”54 not whether 

Plaintiff can provide some argument for a preferred rate.55 

Because Commerce has articulated a reasonable and rational 

connection between the facts on the record and the choices the 

agency has made, its reading of the Zhejiang electricity pricing 

schedule is supported by substantial evidence.56

53 QVD Food Co. v. United States, 658 F.3d 1318, 1324 (Fed. Cir. 

2011) (“[T]he burden of creating an adequate record lies with 

[interested parties] and not with Commerce.”) (second alteration 

original, quotation marks and citations omitted); US Magnesium 

LLC v. United States, __ CIT __, 70 F. Supp. 3d 1321, 1328 

(2015) (“If [Plaintiff] believed [that Commerce made] a poor 

choice, [Plaintiff] should have developed the administrative 

record with information substantiating its inference . . . .”) 

(citation omitted). 

54 Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951) 

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

55 See Consolo, 383 U.S. at 620; Daewoo Elecs. Co. v. Int’l Union 

of Elec., Elec., Tech., Salaried & Mach. Workers, AFL-CIO, 6 

F.3d 1511, 1520 (Fed. Cir. 1993) (“[Under the substantial 

evidence standard], [t]he question is whether the record 

adequately supports the decision of the [agency], not whether 

some other inference could reasonably have been drawn.”). 

56 Cf. Burlington Truck Lines, Inc. v. United States, 371 U.S. 

156, 168 (1962) (finding an agency determination unsupported by 

substantial evidence because the agency did not “articulate any 

rational connection between the facts found and the choice 

made”). 
Court No. 14-00337 Page 17 

II. The Zhejiang Schedule “Large Industry” v. “Large Industry 

(Chlor-Alkali)” Rates 

Second, Plaintiff argues that Commerce’s use of the 

Zhejiang rates for large industry, rather than the (lower) 

Zhejiang rates for “the production of chlor-alkali products,” 

resulted in a calculation that “vastly overstated the net 

benefit” to Plaintiff,57 and thereby made the application of AFA 

“excessive” and “contrary to Commerce’s stated intention of 

limiting [the application of adverse facts] to the GOC.”58 

Commerce, however, has broad “discretion to choose 

which sources and facts it will rely on to support an adverse 

inference when a respondent has been shown to be 

uncooperative.”59 The statute is unambiguous on this point.60 In 

applying adverse inferences Commerce is authorized to look to 

“any . . . information placed on the record,” to fill the gaps 

in its data,61 so long as Commerce’s determination remains in 

57 Pl.’s Br., ECF No. 25-2, at 12; Reply Br. of [Jiheng], 

ECF No. 36 (“Pl.’s Reply”), at 11-16. 

58 Pl.’s Br., ECF No. 25-2, at 15; Pl.’s Reply, ECF No. 36, 

at 16-17. 

59 See F.lli De Cecco Di Filippo Fara S. Martino S.p.A. v. United 

States, 216 F.3d 1027, 1032 (Fed. Cir. 2000). 

60 See Nan Ya Plastics Corp. v. United States, No. 2015-1054, 

2016 WL 209915, at *8-9 (Fed. Cir. Jan. 19, 2016). 

61 19 U.S.C. § 1677e(b)(4). 
Court No. 14-00337 Page 18 

accordance with law and reasonable in light of the record 

evidence.62 

Here, Commerce’s application of adverse inferences is 

in accordance with law because it is “consistent with the method 

provided in the statute.”63 Specifically, an adverse inference 

in a CVD investigation may have “a collateral impact on a 

cooperating party,” without being rendered “improper.”64 Where, 

as here, an adverse inference made against the GOC “collaterally 

reaches” a cooperating company that is “within the [PRC], 

benefitting directly from subsidies the [GOC] may be providing,” 

then the adverse inference is permissible, because it “has the 

62 See Nan Ya, 2016 WL 209915, at *7 (citing 19 U.S.C. § 

1516a(b)(1)(B)(i)). Commerce’s application of adverse 

inferences must be reasonably accurate, see Mueller Comercial de 

Mexico, S. de R.L. de C.V. v. United States, 753 F.3d 1227, 1234 

(Fed. Cir. 2014), and tied to “commercial reality,” Gallant 

Ocean, 602 F.3d at 1323. But, contrary to Plaintiff’s 

understanding, “a Commerce determination (1) is ‘accurate’ if it 

is correct as a mathematical and factual matter, thus supported 

by substantial evidence; and (2) reflects ‘commercial reality’ 

if it is consistent with the method provided in the statute, 

thus in accordance with law.” Nan Ya, 2016 WL 209915, at *7 

(citations omitted); see Fine Furniture, 748 F.3d at 1373 (“[19 

U.S.C. § 1677e(b)] authorize[es] Commerce to provide a 

reasonable estimate based on the best facts available, 

accompanied by a reasonable adverse inference used in place of 

missing information . . . .”). 

63 See Nan Ya, 2016 WL 209915, at *7. 

64 Fine Furniture, 748 F.3d at 1372 (citing KYD, Inc. v. United 

States, 607 F.3d 760, 768 (Fed. Cir. 2010)). 
Court No. 14-00337 Page 19 

potential to encourage the [GOC] to cooperate so as not to hurt 

its overall industry.”65 

Further, Commerce’s determination is supported by 

substantial evidence because it is based on a reasonable reading 

of the record evidence.66 Commerce selected the “highest, nonspecific electricity rates for the appropriate user categories” 

on the record, that is, actual electricity rates, as provided by 

the GOC, charged to users comparable to respondents during the 

relevant time period.67 

Contrary to Plaintiff’s arguments,68 Commerce 

reasonably declined to use the chlor-akali subset of large 

65 Fine Furniture, 748 F.3d at 1373. 

66 See Nan Ya, 2016 WL 209915, at *7; Nippon Steel, 458 F.3d 

at 1351. 

67 See Final I&D Mem., supra note 1, at 30; Prelim. Benchmark 

Mem., ECF No. 30-1 at Tab 4, at 1, attach. 1 (electricity 

benchmark table); Zhejiang Electricity Schedule, ECF No. 30-1 at 

Tab 2 at Ex. E2-3. 

68 Plaintiff argues that because it is “in the chlor-alkali 

business,” Pl.’s Br., ECF No. 25-2, at 12, and because “Commerce 

has made no finding that the chlor-alkali rates in the Zhejiang 

. . . schedule constitute a countervailable subsidy or that they 

provide a specific benefit to an industry or a group of 

industries under 19 U.S.C. § 1677(5A),” Pl.’s Reply, ECF No. 36, 

at 14, there is “no basis to disqualify the Zhejiang chlor[-

]alkali electricity rates as benchmarks for Jiheng’s consumption 

of electricity,” id., and Commerce must, therefore, use them as 

the benchmarks in its benefit calculation, Pl.’s Br., ECF No. 

25-2, at 14; Pl.’s Reply, ECF No. 36, at 16. But Commerce is 

under no such obligation. 19 U.S.C. § 1677e(b)(4) (Commerce may 

use “any . . . information placed on the record.”); see Nan Ya, 

2016 WL 209915, at *8-11. 
Court No. 14-00337 Page 20 

industry rates from Zhejiang, despite Plaintiff’s status as a 

chlor-alkali “producer,”69 because “the GOC’s refusal to respond 

to [Commerce’s] questions” regarding the GOC’s electricity 

pricing practices “rendered the provincial electricity rates 

unreliable.”70 Commerce found that the chlor-akali rates were “a 

preferential electricity rate specific to [the chlor-alkali] 

industry,” making its selection inconsistent with adverse 

inferences.71 Accordingly, Commerce used the Zhejiang large 

industry rates as a “reasonably accurate estimate of 

[Plaintiff’s] actual [electricity] rate[s], albeit with some 

built-in increase intended as a deterrent to [the GOC] for 

69 See Pl.’s Br., ECF No. 25-2, at 12. 

70 Final I&D Mem., supra note 1, at 31. 

71 Id. at 32. Plaintiff itself concedes that the rate is 

“preferential.” Pl.’s Br., ECF No. 25-2, at 12 (noting that, on 

the Southern Hebei Electricity Schedule, its rate is translated 

as “preferential” (citing Jiheng Electricity Template, ECF Nos. 

26 & 27 at Tab 3, at app. 26), and that the chlor-alkali rates 

on the Zhejiang Electricity Schedule are “the same or 

comparable”); see also Pl.’s Reply, ECF No. 36, at 14-16. 

Plaintiff tries to argue that this preference is the result of 

“well-established market principles,” Pl.’s Reply, ECF No. 36, 

at 15. This argument is unconvincing because Plaintiff can 

marshal no more support for it than “perhaps the most overused 

phrase in retail, ‘the more you buy, the more you save.’” Id. 

Further, Plaintiff provides, by its own submission on the 

record, that the chlor-alkali process is not a distinct 

industry, but an electricity-intensive step in the production of 

chloro isocyanurates (SDIC and TCCA) (i.e., implicating both the 

subsidized good and industry at issue here). See Jiheng Section 

III Resp., ECF Nos. 26 & 27 at Tab 3, at app. 3 (providing an 

outline of the chlor-akali stage in the production of 

chlorinated isocyanurates). 
Court No. 14-00337 Page 21 

noncompliance.”72 Such an adverse inference is supported by 

substantial evidence.73

CONCLUSION

For these reasons, Commerce’s determination in 

Chlorinated Isocyanurates from the [PRC], 79 Fed. Reg. 56,560 

(Dep’t Commerce Sept. 22, 2014) (final affirmative 

countervailing duty determination; 2012) is supported by 

substantial evidence and in accordance with law, and is 

therefore AFFIRMED. Judgment will be issued accordingly. 

/s/Donald C. Pogue 

Donald C. Pogue, Senior Judge 

Dated: February 

 New York, NY 

72 See Mueller Comercial, 753 F.3d at 1234 (quoting F.lli De 

Cecco, 216 F.3d at 1032); Fine Furniture, 748 F.3d at 1373. 

73 See Fine Furniture, 748 F.3d at 1373.