Slip Op. 15-86 

UNITED STATES COURT OF INTERNATIONAL TRADE 

________________________________ 

FENGCHI IMP. & EXP. CO., LTD. : 

OF HAICHENG CITY, FENGCHI : 

REFRACTORIES CO. OF HAICHENG : 

CITY, and FEDMET RESOURCES :

CORPORATION, :

:

Plaintiffs, : Before: Nicholas Tsoucalas, 

 : Senior Judge 

v. :

: Court No.: 13-00186 

UNITED STATES, : 

 : 

Defendant, :

:

and :

:

RESCO PRODUCTS, INC., and : 

ANH REFRACTORIES COMPANY, :

:

Defendant-Intervenors.: 

OPINION 

[Commerce’s Remand Results are sustained.] 

Dated:August 13, 2015 

Donald B. Cameron, Brady W. Mills, Julie C. Mendoza, Mary S. 

Hodgins, R. Will Planert, and Sarah S. Sprinkle, Morris Manning & 

Martin LLP, of Washington, DC, for plaintiffs. 

Melissa M. Devine, Trial Attorney, Commercial Litigation Branch, 

Civil Division, U.S. Department of Justice, of Washington, DC, for 

defendant. With her on the brief were Benjamin C. Mizer, Principal 

Deputy Assistant Attorney General, Jeanne E. Davidson, Director,

and Patricia M. McCarthy, Assistant Director. Of counsel on the 

brief was Whitney M. Rolig, Attorney, Office of the Chief Counsel 

for Trade Enforcement & Compliance, U.S. Department of Commerce, 

of Washington, DC. 
Court No. 13-00186 Page 2 

Joseph W. Dorn, J. Michael Taylor, and Brian E. McGill, King & 

Spalding LLP, of Washington, DC, for defendant-intervenor Resco 

Products, Inc. and Harbison Walker International (formerly ANH 

Refractories Company. 

 Tsoucalas, Senior Judge: before the court are the

Department of Commerce’s (“Commerce”) Final Results of 

Redetermination pursuant to Court Remand in Fengchi Imp. & Exp. 

Co., Ltd. of Haicheng City v. United States, 39 CIT __, __, Slip 

Op. 15-23 (Mar. 25, 2015) (“Fengchi I”). See Final Results of 

Redetermination Pursuant to Fengchi Imp. & Exp. Co., Ltd. of 

Haicheng City v. United States, ECF No. 111 (May 26, 2015) (“Remand 

Results”). The relevant facts and procedural history are set forth 

in Fengchi I. Familiarity with the court’s decision in Fengchi I 

is presumed. 

 Plaintiffs, Fengchi Import and Export Co., Ltd. of 

Haicheng City, Fengchi Refractories Co. of Haicheng City and Fedmet 

Resources Corporation (collectively, “Plaintiffs”), challenge 

Commerce’s redetermination. See Pls.’ Cmts. on Remand Results, 

ECF No. 114 (June 25, 2015) (“Pls.’ Br.”). Both Commerce and 

Defendant-Intervenors Resco Products, Inc. ("Resco") and Harbison 

Walker International, formerly ANH Refractories Company ("ANH")

insist that the court sustain the Remand Results. See Def.'s Resp. 

to Cmts. on Remand Results, ECF No. 118 (July 10, 2015) (“Def.’s 

Br.”); Def.- Intervenors’s Cmts. Response to Pls.’ Cmts. on Remand 

Results, ECF No. 120 (July 10, 2015) (“Def.-Int.’s Br.”). 
Court No. 13-00186 Page 3 

JURISDICTION and STANDARD OF REVIEW

 The Court has jurisdiction pursuant to 28 U.S.C. § 

1581(c) (2012) and section 516A(a)(2)(B)(iii) of the Tariff Act of 

1930,1 as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2012). The 

court will uphold Commerce’s final determination in an antidumping 

duty administrative review unless it is “unsupported by 

substantial evidence on the record, or otherwise not in accordance 

with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). Substantial evidence 

“means such relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion.” Universal Camera Corp. v. NLRB, 

340 U.S. 474, 477 (1951). 

 Additionally, when reviewing an agency’s interpretation 

of its regulations, the court must give substantial deference to 

the agency’s interpretation, Michaels Stores, Inc. v. United

States, 766 F.3d 1388, 1391 (Fed. Cir. 2014) (citing Torrington 

Co. v. United States, 156 F.3d 1361, 1363-64 (Fed. Cir. 1998)), 

according it “‘controlling weight unless it is plainly erroneous 

or inconsistent with the regulation.’” Thomas Jefferson Univ. v. 

Shalala, 512 U.S. 504, 512, (1994) (citations omitted); accord 

Viraj Group v. United States, 476 F.3d 1349, 1355 (Fed. Cir. 2007). 

In this context, “[d]eference to an agency’s interpretation of its 

1 Further citations to the Tariff Act of 1930 are to the relevant 

portions of Title 19 of the U.S. Code, 2006 edition, and all 

applicable amendments thereto.

 
Court No. 13-00186 Page 4 

own regulations is broader than deference to the agency’s 

construction of a statute, because in the latter case the agency 

is addressing Congress’s intentions, while in the former it is 

addressing its own.” Viraj, 476 F.3d at 1355 (quoting Gose v. 

U.S. Postal Serv., 451 F.3d 831, 837 (Fed. Cir. 2006). 

Discussion 

 In the underlying administrative review of the 

antidumping order on certain magnesia carbon bricks (“MCBs”) from 

China, Commerce applied a total adverse facts available (“AFA”) to 

Fengchi as a consequence of Fengchi’s refusal to respond to 

Commerce’s request for certain sales information. See Certain 

Magnesia Carbon Bricks From the People’s Republic of China: Final 

Results and Final Partial Rescission of Antidumping Duty 

Administrative Review; 2010–2011, 78 Fed. Reg. 22,230 (Apr. 15, 

2013) (“Final Results”); see also Certain MCBs from the PRC: Issues 

and Decision Memorandum for the Final Results of the 2010–2011 

Administrative Review, (Apr. 9, 2013) PR 148 at 1–2 (“IDM”). 

Commerce assigned Fengchi a weighted-average dumping margin of 

236% based on the petition rate from the investigation. See First 

Administrative Review of MCBs from the PRC: Corroboration 

Memorandum (Oct. 1, 2012), CR 68 at 2–3 (unchanged in final). 

Commerce found that the petition rate was reliable because it 

calculated the 236% figure as the AFA rate for the PRC-wide entity 

during the investigation, which it then corroborated using model-
Court No. 13-00186 Page 5 

specific margins of a cooperating respondent. See id. Commerce 

determined that the rate was relevant to Fengchi by comparing the 

United States price from the petition to the average unit prices 

for five Fengchi sales of magnesia alumina carbon bricks (“MACBs”) 

that were identified by United States Customs and Border Protection 

(“CBP”). Id. at 3. Specifically, Commerce found that the U.S. 

sales price from the petition rate was within the range of the 

average unit values for Fengchi’s entries. Id. Additionally, 

Commerce found that the usage rates for the factors of production 

in the petition were within the range of values of Fengchi’s 

reported usage rates. Id. Because the rate was both reliable and 

relevant to Fengchi, Commerce found that it adequately 

corroborated the petition rate of 236%. Id. 

 In Fengchi I, the Court remanded the Final Results to 

Commerce for further explanation regarding the corroboration of 

the AFA rate. Fengchi I, 39 CIT at __, Slip Op. 15-23 at 18–22. 

Although the Court determined that Commerce properly relied on AFA 

in assigning Fengchi’s weighted-average dumping margin, as a 

consequence of the Federal Circuit’s holding in Fedmet Resources 

Corp. v. United States, 755 F.3d. 912, (Fed. Cir. 2014), the court 

became “concerned with Commerce’s potentially unreasonable use of 

out of scope MACB sales to corroborate the AFA rate.” Id. at __, 

Slip Op. 15-23 at 21–22. Therefore, the court remanded so that 
Court No. 13-00186 Page 6 

Commerce could have the opportunity to address this concern at the 

administrative level. Id. 

 Commerce resolved these concerns in its Remand Results. 

There, Commerce reasonably explained that the Federal Circuit’s 

ruling in Fedmet “only affects [Commerce’s] corroboration of the 

AFA rate assigned to Fengchi to the extent that the record 

demonstrates that the entries underlying [Commerce’s] 

corroboration analysis were actually non-subject MACBs.” Remand 

Results at 5. Commerce found that Fengchi’s refusal to cooperate 

with the review precluded it from identifying the exact nature of 

those entries. Id. Specifically, Commerce examined the CBP entry 

documentation for the five sales at issue and found that the 

documentation described the merchandise as MACBs, but did not 

contain any additional details regarding the merchandise’s alumina 

content, which is necessary to distinguish MACBs from MCBs. Id. 

at 5-6; see also Fedmet Res. Corp. v. United States, 755 F.3d 912, 

924 (Fed. Cir. 2014). According to Commerce, nothing in this data 

indicated whether Fengchi’s merchandise was actually out-of-scope 

as outlined in Fedmet. Since Fengchi refused to provide Commerce 

with any narrative clarifying the merchandise in question, 

Commerce reasonably found that the entry documentation was 

ambiguous as to the product actually sold. Id. at 6. 

Consequently, Commerce reasonably concluded that the five entries 

used to corroborate the AFA rate were subject merchandise. Id. 
Court No. 13-00186 Page 7 

 Commerce also examined additional record evidence 

regarding other sales that CBP identified as subject merchandise 

that Fengchi did not report for the period of review. Id. at 7 

(citing First Antidumping Administrative Review of Certain MCBs 

from the PRC: Sections C and D Supplemental Questionnaire, (Aug. 

3, 2012) CR 46 at Attach. II). Once again, Fengchi chose not to 

comment on these sales, limiting the record to only the prices and 

quantities of imports that were classified as subject merchandise 

by CBP. Id. at 7. Therefore, Commerce reasonably inferred that 

the sales were subject merchandise and found that, as with the 

other five CBP entries in question, the United States price from 

the petition was “within the range of the average unit prices for 

the remaining unreported sales and [was] therefore relevant to 

Fengchi for this period of review.” Id. at 7. 

 When selecting an AFA rate, Commerce may rely on 

information from the petition, investigations, prior 

administrative reviews, or “any other information placed on the 

record.” 19 U.S.C. § 1677e(b). However, Commerce cannot select 

any rate as the AFA rate, but rather, must select an AFA rate that 

is “a reasonably accurate estimate of the respondent's actual rate, 

albeit with some built-in increase intended as a deterrent to noncompliance.” F.lli De Cecco Di Filippo Fara S. Martino S.p.A. v. 

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

must select secondary information that has some grounding in 
Court No. 13-00186 Page 8 

commercial reality.” Gallant Ocean (Thailand) Co. v. United 

States, 602 F.3d 1319, 1324 (Fed. Cir. 2010). Although a higher 

AFA rate creates a stronger incentive to cooperate, “Commerce may 

not select unreasonably high rates having no relationship to the 

respondent’s actual dumping margin.” Id. at 1323 (citing De Cecco,

216 F.3d at 1032). 

 The requirements articulated by the CAFC are an 

extension of the statute’s corroboration requirement. See De 

Cecco, 216 F.3d at 1032. Under 19 U.S.C. § 1677e(c), when Commerce 

relies on secondary information, it “shall, to the extent 

practicable, corroborate that information from independent sources 

that are reasonably at [its] disposal.” 19 U.S.C. § 1677e(c). To 

corroborate secondary information, Commerce must find that it has 

“probative value.” See KYD, Inc. v. United States, 607 F.3d 760, 

765 (Fed. Cir. 2010). Secondary information has “probative value” 

if it is “reliable” and “relevant” to the respondent. Mittal Steel 

Galati S.A. v. United States, 31 CIT 730, 734, 491 F. Supp. 2d

1273, 1278 (2007); see KYD, 607 F.3d at 765–67. 

 Plaintiffs argue that Fedmet renders the AFA rate

unreasonable because Commerce corroborated it using sales of nonsubject MACBs. Pls.’ Br. at 2–3. Plaintiffs insist that Commerce 

is required to identify evidence on the record that the entries it 

relies upon for the corroboration of an AFA rate are subject 

merchandise. Id. at 3 (citing Foshan Shunde Yongjian Housewares 
Court No. 13-00186 Page 9 

& Hardware Co. v. United States, 37 CIT __, __, Slip Op. 13-47 

(Apr. 8, 2013)). Additionally, Plaintiffs contend that although 

Commerce had previously requested that Fengchi respond to its 

antidumping duty questionnaire with respect to Fengchi’s exports 

of MACBs, “Commerce never asked Fengchi for any additional 

information specifically regarding the CBP entry data, including 

the entries underlying the corroboration analysis.” Id. at 4. 

Finally, Plaintiffs contend that Commerce erroneously continues to 

rely on the same “post hoc rationalizations” it offered prior to 

the court’s remand in Fengchi I as justification for its 

corroboration of the AFA rate, instead of reviewing the evidence 

on the record. Id. at 7–8. 

 Plaintiffs’ arguments are unpersuasive. Commerce is 

required to corroborate information only “to the extent 

practicable” on a given record. 19 U.S.C. § 1677e(c). On this 

record, Fengchi identifies no evidence indicating whether the 

alumina content of its merchandise falls within the range of outof-scope MACBs described in Fedmet. See Fedmet Res. Corp. v. 

United States, 755 F.3d 912, 924 (Fed. Cir. 2014). As Commerce 

reasonably observed, Fedmet “only affects [Commerce’s] 

corroboration of the AFA rate assigned to Fengchi to the extent 

that the record demonstrates that the entries underlying 

[Commerce’s] corroboration analysis were actually non-subject 

MACBs.” Remand Results at 5 (emphasis added). Therefore, at best, 
Court No. 13-00186 Page 10 

the record is ambiguous, and allows for more than one reasonable 

answer to that predicate question. 

 Moreover, it appears that Plaintiffs would prefer that 

Commerce do all the work in establishing whether the entries in 

question were or were not MACBs, that is not Commerce’s role. 

Commerce’s inability to mandate participation in its proceedings 

means that interested parties bear the primary burden of developing 

the administrative record. See QVD Food Co. v. United States, 658 

F.3d 1318, 1325 (Fed. Cir. 2011). Here, rather than provide any 

information about its merchandise, Fengchi left it to Commerce to 

assemble a record which it now complains results in a less

favorable outcome. The fact of the matter is that Fengchi 

identifies no evidence on this record that undermines the 

reasonableness of Commerce’s corroboration. Once again, Commerce 

is only required to corroborate the AFA rate “to the extent 

practicable” on a given record. 19 U.S.C. § 1677e(c). 

 Furthermore, Plaintiffs mistakenly characterize 

Commerce’s comments in its redetermination as being a “post hoc 

rationalization.” Pls.’ Br. at 7–8. Commerce developed its 

comments in the redetermination over the course of the remand 

proceedings as the court directed in Fengchi I. The remand 

proceeding is an administrative proceeding, meaning that 

Commerce’s comments are not the post hoc rationalization of its 
Court No. 13-00186 Page 11 

counsel. See Mitsubishi Heavy Indus. v. United States, 24 CIT 

275, 287 n. 9, 97 F. Supp. 2d 1203, 1209 n.9 (2000). 

Accordingly, since Plaintiffs chose not to comply with 

Commerce’s request for information, Commerce reasonably selected 

from the list of secondary sources as the basis for Fengchi’s AFA 

rate. See 19 U.S.C. § 1677e(b). The court finds that Commerce 

acted reasonably when it chose to rely on the limited data on the 

record to select an AFA rate that was “a reasonably accurate 

estimate of the respondent's actual rate, albeit with some builtin increase intended as a deterrent to non-compliance.” De Cecco, 

216 F.3d at 1032. 

For the foregoing reasons, Commerce’s Remand Results are 

SUSTAINED. Judgment will be entered accordingly. 

 /s/ Nicholas Tsoucalas 

 Nicholas Tsoucalas 

 Senior Judge 

Dated: __________________ 

 New York, New York 

August 13, 2015