Slip Op. 24-66

UNITED STATES 

COURT OF INTERNATIONAL TRADE 

Court No. 22-00152 

COALITION OF AMERICAN MANUFACTURERS 

OF MOBILE ACCESS EQUIPMENT, 

Plaintiff, 

v. 

UNITED STATES, 

Defendant, 

and 

ZHEJIANG DINGLI MACHINERY CO., LTD., 

Defendant-Intervenor.

Before: M. Miller Baker, Judge 

OPINION 

[The court sustains in part the agency’s final determination and remands in part for further proceedings.] 

Dated: May 31, 2024 

Timothy C. Brightbill and Laura El-Sabaawi, Wiley 

Rein LLP, Washington, DC, on the papers for Plaintiff. 

Brian M. Boynton, Principal Deputy Assistant Attorney General; Patricia M. McCarthy, Director; Tara K. 

Hogan, Assistant Director; and Kristin E. Olson, Trial 

Attorney, Commercial Litigation Branch, Civil 
Ct. No. 22-00152 Page 2 

Division, U.S. Department of Justice, Washington, 

DC, on the papers for Defendant. Of counsel for Defendant was Brishailah Brown, Attorney, Office of the 

Chief Counsel for Trade Enforcement and Compliance, 

U.S. Department of Commerce, Washington, DC. 

Ned H. Marshak, Dharmendra N. Choudhary, and 

Jordan C. Kahn, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, New York, NY, and Washington, DC, on the papers for Defendant-Intervenor. 

Baker, Judge: In this case, domestic manufacturers 

challenge the Department of Commerce’s final determination following an antidumping investigation into 

“mobile access equipment”—peripatetic lifting machines such as one might see used in large home improvement stores or factories—imported from China. 

For reasons explained below, the court sustains the 

agency’s determination in part and remands for reconsideration of certain issues. 

I 

At the request of the Coalition of American Manufacturers of Mobile Access Equipment, Appx1176, 

Commerce opened an antidumping investigation covering the second half of 2020. 86 Fed. Reg. 15,922; 

Appx6778–6784. The Department selected as mandatory respondents the two largest Chinese exporters or 

producers during the period of investigation, Lingong 

Group Jinan Heavy Machinery Co., Ltd. (Jinan), and 
Ct. No. 22-00152 Page 3 

Zhejiang Dingli Machinery Co., Ltd. (Dingli). 

Appx1001–1002.

Commerce found that dumping was occurring. 

Appx1035. After the International Trade Commission 

determined that these imports injure domestic industry, the former issued an antidumping order. 87 Fed. 

Reg. 22,190, 22,190. 

II 

Invoking jurisdiction conferred by 28 U.S.C. 

§ 1581(c), the Coalition sued under 19 U.S.C. 

§§ 1516a(a)(2)(A)(i)(II) and (a)(2)(B)(i) to challenge 

Commerce’s final determination. See ECF 8. After 

Dingli intervened on the side of the government, ECF 

16, the Coalition moved for judgment on the agency 

record. ECF 55. The government (ECF 59) and the 

company (ECF 53) opposed. The Coalition replied. 

ECF 57. The court decides the motion on the papers. 

In § 1516a(a)(2) actions, “[t]he court shall hold unlawful any determination, finding, or conclusion found 

. . . to be unsupported by substantial evidence on the 

record, or otherwise not in accordance with law.” 

19 U.S.C. § 1516a(b)(1)(B)(i). That is, the question is 

not whether the court would have reached the same 

conclusion on the same record—rather, it is whether 

the administrative record as a whole permits Commerce’s conclusion. 
Ct. No. 22-00152 Page 4 

Substantial evidence has been defined as more 

than a mere scintilla, as such relevant evidence 

as a reasonable mind might accept as adequate 

to support a conclusion. To determine if substantial evidence exists, we review the record as a 

whole, including evidence that supports as well 

as evidence that fairly detracts from the substantiality of the evidence. 

Nippon Steel Corp. v. United States, 337 F.3d 1373, 

1379 (Fed. Cir. 2003) (cleaned up); see also SSIH 

Equip. S.A. v. U.S. Int’l Trade Comm’n, 718 F.2d 365, 

382 (Fed. Cir. 1983) (if Commerce makes a choice between “two fairly conflicting views,” the court may not 

substitute its judgment even if its view would have 

been different “had the matter been before it de novo”) 

(quoting Universal Camera Corp. v. NLRB, 340 U.S. 

474, 488 (1951)). 

III 

A 

The Coalition challenges the Department’s surrogate value selections for Dingli’s ocean-shipping costs, 

steel inputs, and drive motor inputs.1 The court considers each in turn. 

1 Because China has a nonmarket economy, in antidumping cases Commerce calculates the costs of producing goods 

in that country and shipping them to the United States 
Ct. No. 22-00152 Page 5 

1 

Commerce requested facts and figures to value 

Dingli’s cost of shipping cargo by sea from China to the 

United States. The company submitted data from Descartes, Freightos, and Drewry, Appx6908–6913, 

Appx7402–7465, while the Coalition provided information from Maersk, Appx3718–3732. The Department observed that in weighing this evidence, its policy is to select values that are “publicly available, product-specific, representative of a broad market average, 

. . . and contemporaneous with the [period of investigation] under consideration.” Appx1042 (emphasis in 

original). Weighing those factors, it selected the Descartes, Freightos, and Drewry material. Appx1042–

1047. 

Commerce provided several reasons for this choice. 

Most importantly, the Coalition designated its Maersk 

data as business proprietary information (BPI), 

Appx1043, but Dingli placed information from three 

sources on the public record, Appx1042–1043.2

using analogous market-economy costs. See Hung Vuong 

Corp. v. United States, 483 F. Supp. 3d 1321, 1339 (CIT 

2020) (describing this process). 

2 In response to the Coalition’s claim that it was forced to 

designate its Maersk data as proprietary because Dingli 

had so designated its shipping routes, the Department explained that it wasn’t clear why the former “treated the entirety of the Maersk ocean freight data as BPI rather than 

simply [so] treating the shipping routes.” Appx1043. Had 
Ct. No. 22-00152 Page 6 

Moreover, the Coalition’s Maersk data were based on 

“price quotes . . ., which are not data [the Department] 

prefers to use.” Appx1044. In contrast, “the Descartes 

data for ocean freight charges represent actual, consummated transactions.” Id. Further, and again unlike the Descartes, Freightos, and Drewry price 

quotes, the Maersk data were not “[p]ublicly available, 

published prices,” Appx1043–1044, meaning they 

could not be obtained except through a private inquiry. 

Addressing the Coalition’s contention that the 

Maersk data were more specific, i.e., they more closely 

resembled Dingli’s ocean freight costs, the Department opined that the Descartes, Drewry, and 

Freightos information reflected routes used by both 

Dingli and Jinan, Appx1043, and that freight carried 

by both Maersk and Descartes covered “a broad class 

of merchandise that do[es] not specifically pertain to 

mobile access equipment or subassemblies thereof.” 

Appx1044. Although the Drewry and Freightos data 

did “not specify the precise types of commodities being 

shipped,” id., their rates appeared to be “representative of, and equally applicable to, all types of merchandise,” id. 

the Coalition only treated the routes “as BPI, the ocean 

freight rates could have been considered because there is 

no presumption that the shipping routes referenced in 

Maersk’s ocean freight rates are necessarily identical to 

those used by respondents.” Id. 
Ct. No. 22-00152 Page 7 

The Coalition attacks these findings on several 

grounds: 

The Agency Preference for Public Data 

The Coalition argues that the Department improperly accepted Dingli’s designation of its ocean freight 

routes as proprietary. ECF 55, at 27. According to the 

Coalition, this forced it to similarly denominate its 

Maersk shipping data to avoid breaching the agency’s 

protective order. Id. at 27–28. 

The government does not defend Commerce’s acceptance of Dingli’s BPI designation of ocean freight 

routes, instead arguing that regardless of whether the 

company erred in so doing, the agency prefers using 

public rather than confidential data. See ECF 59, 

at 20. For its part, the company does not justify characterizing its sea lanes as proprietary. Rather, it contends—echoing the Department’s reasoning, see above

note 2—that the Coalition only has itself to blame for 

erroneously denominating the Maersk shipping rates

as BPI when Dingli only so labeled its routes. ECF 53, 

at 5. 

As neither the government nor Dingli defends the 

latter’s BPI designation of its routes, the court remands for the agency to explain why such characterization was permissible under 19 C.F.R. § 351.105(c). 

Insofar as the Department finds that the company 

erred, the former must direct the latter to withdraw 
Ct. No. 22-00152 Page 8 

its designation. See 19 U.S.C. § 1677f(b)(2).3 If Dingli 

declines, then the agency must return the submission 

and allow the company to proffer “other material.” Id. 

On the other hand, if the Department finds that 

Dingli properly designated its shipping routes as proprietary, Commerce must then advise the Coalition 

that its corresponding designation of “ocean freight 

rates” was—as explained in the agency’s final determination—improper and ask for an “explanation.” Id. 

If the agency is unpersuaded, it must allow the Coalition to withdraw the designation. See id. What the 

agency cannot do under § 1677f(b)(2) is what it did 

here—accept an interested party’s BPI designation, 

only later characterize that denomination as erroneous, and then cite that error as a reason not to use the 

information because of the agency’s preference for using publicly available data.4 Commerce has a statutory 

3 The agency must also provide a corresponding opportunity for the Coalition to do the same as to the Maersk 

data. 

4 The Coalition does not contest Commerce’s “view” that the 

agency “preference for publicly available information [is] 

one that requires information to be placed on the public record.” Jinko Solar Imp. & Exp. Co. v. United States, Consol. 

Ct. No. 22-00219, Slip Op. 24-53, at 34–35, 2024 WL 

2078453, at *13 (CIT May 1, 2024) (emphasis added). Far 

from it—as explained below in connection with certain BPI 

rebuttal material submitted by Dingli, the Coalition seeks 

to enforce that preference. Cf. id. at 36–37, 2024 WL 

2078453, at *14 (remanding for the agency to “consider or 
Ct. No. 22-00152 Page 9 

duty to allow an interested party to cure unwarranted 

BPI designations. See 19 U.S.C. § 1677b(f)(2). 

Price Quotes Versus Consummated Transactions 

The Coalition argues that Commerce cited no evidence to support its finding that Dingli’s Descartes 

data reflect consummated transactions, unlike the 

Maersk price quotes. See ECF 55, at 33–34. But Dingli 

explain how publicly available information on the confidential record fails to promote accuracy, fairness, and predictability”). 

 The court observes that it appears the agency’s preference 

for non-BPI data is based on the interplay between three 

regulations. One authorizes interested parties to submit 

“factual information”—defined by another as “[p]ublicly 

available information,” 19 C.F.R. § 351.102(b)(21)(iii)—“to 

value factors of production under § 351.408(c),” i.e., in nonmarket-economy country cases, id. § 351.301(c)(3)(i). A 

third, in turn, explains that “[t]here are four categories of 

information in an antidumping or countervailing duty proceeding,” id. § 351.105(a), two of which are “public” and 

“[BPI],” id. The former “is information that may be made 

available to the public, whereas [the latter] may be disclosed (if at all) only to authorized applicants under an [administrative protective order].” Id. Putting all this together, the Department requires interested parties to submit non-BPI data to value the factors of production in nonmarket-economy cases. The court reserves for another day 

whether that requirement conflicts with the statute, which 

directs—subject to an exception not relevant here—that in 

such cases the Department’s valuation of those factors 

“shall be based on the best available information . . . .” 19 

U.S.C. § 1677b(c)(1) (emphasis added). 
Ct. No. 22-00152 Page 10 

points to a certain code (the “Transshipment Local Instructions”) which it asserts “establishes that all Descartes price data represent actual transactions on 

those dates.” ECF 53, at 8. The Coalition’s failure to 

confront this point on reply leads the court to infer that 

substantial evidence supports the Department’s finding, even if the agency did not cite that evidence. 

Are the Maersk Data Public? 

The Coalition objects to Commerce’s characterization of the Maersk information as not “[p]ublicly available, published prices.” ECF 55, at 29–30 (quoting 

Appx1044). Neither the government nor Dingli seriously disputes this point, with the latter reduced to 

complaining that the Coalition failed “to establish how 

Maersk data can be publicly accessed.” ECF 53, at 5–

6. On reply, however, the Coalition observes that the 

Department “has acknowledged the public nature of 

the Maersk data many times” and cites two such examples. See ECF 57, at 6–7.5 In view of Commerce’s 

past pronouncements bearing directly on the question, 

the court remands so the agency can reconcile its finding with those previous determinations. 

5 Consistent with Commerce’s previous acknowledgements, the court observes that the Maersk website provides shipping price quotes to the public. See

https://www.maersk.com/onlinequote/standard. 
Ct. No. 22-00152 Page 11 

Specificity 

The Coalition argues its Maersk data were more reflective of Dingli’s ocean freight costs than the Descartes, Freightos, and Drewry information used by 

Commerce. According to the Coalition, the former data 

were limited to the sea route (to the U.S. West Coast) 

Dingli used for the overwhelming majority of its exports, see ECF 54, at 24, but the latter included routes 

for both the U.S. East and West Coasts, see ECF 55, 

at 24–25. 

Commerce explained that the Descartes, Freightos, 

and Drewry data replicated not only Dingli’s routes, 

but Jinan’s as well, Appx1043—a non sequitur, because the Department was calculating just the former’s ocean shipping costs. The government repeats 

that error, ECF 59, at 24, and further observes that 

Dingli shipped to both coasts, id. at 22–23, but does 

not acknowledge that the company’s exports to the 

East Coast were de minimis. Dingli, to its credit, 

acknowledges that fact, see ECF 53, at 3–4, but argues 

that there is no administrative or judicial precedent 

requiring the agency to weigh the “number of shipments for each port combination used,” id. 

The lack of precedent, however, is not dispositive 

because the relevant question is whether Commerce’s 

specificity determination is reasonable. And “what is 

reasonable depends on the context.” United States v. 

R. Enters., Inc., 498 U.S. 292, 299 (1991) (quoting New 

Jersey v. T.L.O., 469 U.S. 325, 337 (1985)). Dingli ships 
Ct. No. 22-00152 Page 12 

almost all its lifting machines by sea to the U.S. West 

Coast, with only a small fraction going to the Port of 

New York.6 Elementary geography dictates that, all 

other things being equal, it’s cheaper to transport 

cargo by sea from China to the former rather than the 

latter.7 At least as to Dingli’s ocean shipping routes, 

the Department’s failure to recognize that the Descartes, Freightos, and Drewry data are less specific 

than the Maersk information is unreasonable. 

The Coalition’s second specificity challenge is to 

Commerce’s finding that the Descartes, Freightos, and 

Drewry rates were for cargo essentially comparable to 

the goods used for the Maersk price quotes. The Coalition argues that the Department’s decision is unreasonable because its Maersk data involved machinery 

parts, see ECF 54, at 25, that more closely resembled 

Dingli’s lifting equipment than the array of both mechanical parts and non-machinery goods reflected in 

6 Notwithstanding that Dingli’s shipping routes are purportedly BPI, its public brief discloses that the company 

“actually used the Shanghai–New York route.” See ECF 53, 

at 3. 

7 For example, it’s 5398 nautical miles from Shanghai to 

San Francisco, to take one West Coast port. A vessel steaming at 10 knots would take 22 days to transit that distance. 

From Shanghai to New York at the same speed would take 

44 days via the Panama Canal (10,582 nautical miles), 51 

days via the Suez Canal (12,370 nautical miles), 60 days 

via the Cape of Good Hope (14,468 nautical miles), and 69 

days via the Strait of Magellan (16,684 nautical miles). See

https://Sea-Distances.org. 
Ct. No. 22-00152 Page 13 

the Descartes data, including furniture, plastic bags, 

fabric, paper cups, and sofa covers, see ECF 55, at 25. 

The court disagrees. Commerce weighed this evidence and explained that neither the Coalition’s data 

nor Dingli’s “specifically pertain[ed] to mobile access 

equipment or subassemblies thereof.” Appx1043. Both 

covered a “broad class of merchandise” that included 

various mechanical parts. Id. That Dingli’s data included non-mechanical products had to be weighed 

against the fact that neither data set replicated the 

mobile access equipment. Unlike the Department’s 

treatment of shipping routes, there’s nothing unreasonable in how the agency weighed the competing considerations as to cargo specificity. 

* * * 

Commerce’s choice of data to value Dingli’s ocean 

freight costs is a mixed bag. Certain aspects of that decision are supported by substantial evidence, but others are not. It’s not clear the agency would have 

reached the same result had it properly analyzed the 

record, so the court remands for reconsideration. 

Adjustments to Descartes Data (If Selected Again) 

Finally, Commerce rejected the Coalition’s assertion that “Dingli improperly excluded certain charges 

in its reported Descartes freight data when shipping 

goods to the United States.” Appx1046. The Department found that the Descartes rates “are clearly 
Ct. No. 22-00152 Page 14 

identified as only ocean freight charges,” which “indicates that the rates do not cover non-ocean freight 

charges, such as brokerage and handling fees, U.S. inland freight charges (i.e., destination delivery 

charges)[,] or truck-freight services.” Appx1046–1047. 

It added that those sorts of costs “are included in the 

brokerage and handling [surrogate value]” based on 

World Bank data. Appx1047. 

The Coalition now raises a contingent argument 

that, if Commerce justifiably selected Dingli’s proffered shipping data, the Department needed to “adjust 

it” by adding certain fees to the rate so that it would 

more closely match the company’s “experience” during 

the period of investigation. ECF 55, at 34. The Coalition asserts that Dingli omitted certain charges that a 

customer would have to pay when using Descartes to 

transport goods by sea—including a “bunker adjustment factor,” a “destination delivery charge,” and local 

port fees—and contends that those charges should 

have been part of the freight rates. Id. at 34–35. It also 

argues that the “other excluded charges . . . ‘are all 

part of the price that a customer would have to pay 

and are separate from brokerage and handling expenses.’” Id. at 35 (quoting Appx6534). Lastly, it maintains that Commerce’s finding that the World Bank 

data included these amounts in brokerage and handling expenses “does not appear to be true” because the 

“brokerage and handling” information the Department 

used had a narrow scope. Id. at 36–37 (citing 

Appx7143–7266, Appx6777(e)–6777(f)). 
Ct. No. 22-00152 Page 15 

Neither the agency discussion nor the parties’ arguments allow the court to resolve this issue. Insofar 

as the court can discern from the pages cited by Commerce and the parties in their briefing, it’s impossible 

to tell what the “brokerage and handling” fees included or excluded. The Department cited its surrogate value memorandum prepared before the preliminary determination. See Appx1047 (citing 

Appx21434–21446). The text of that memorandum 

contains no explanation of this issue, and the attachment simply contains three different line items for 

“brokerage & handling” with no detail about what 

those amounts represent, although it does break out 

“truck freight” separately from “ocean freight.” 

Appx21446(e)–21446(f). The Coalition notes that the 

page in the record showing what the “brokerage and 

handling” fees include mentions only two components—“border compliance” and “documentary compliance.” ECF 55, at 37 (citing, inter alia, Appx7146). The 

government essentially just repeats the agency conclusion that the “brokerage and handling” value includes 

the charges, see ECF 59, at 27–28 (citing Appx1047, 

Appx21438), and says the data “satisfied Commerce’s 

surrogate value criteria,” id. at 28–29. Dingli contends 

the Coalition did not show how the various charges are 

not part of “brokerage and handling.” See ECF 53, 

at 8–9. 

The problem the court has, for purposes of substantial evidence review, is that the Department’s decision 

appears to assume what the brokerage and handling 
Ct. No. 22-00152 Page 16 

surrogate value includes.8 The court has “no basis for 

thinking that [the assumption] is a matter of common 

knowledge or otherwise can be presumed true without 

evidence.” CS Wind Vietnam Co. v. United States, 832 

F.3d 1367, 1374 (Fed. Cir. 2016); OCP S.A. v. United 

States, 658 F. Supp. 3d 1297, 1324 (CIT 2023) (noting 

that agency discretion “does not include the ability to 

assume facts for which there is insufficient evidence”); 

cf. DyStar Textilfarben GmbH & Co. Deutschland KG 

v. C.H. Patrick Co., 464 F.3d 1356, 1367 (Fed. Cir. 

2006) (“[A]ssumptions about common sense cannot 

substitute for evidence thereof . . . .”) (emphasis in original). The court therefore remands so the agency—insofar as it once again chooses to use the Descartes information—can point to the specific data in the record 

on which it relies to support its conclusion about what 

costs the brokerage and handling surrogate value includes. 

2 

The Coalition challenges Commerce’s use of certain 

Harmonized Tariff Schedule (HTS) subheadings to 

value “minor fabricated steel components.”9 It argues 

8 The court has no difficulty accepting the agency’s conclusion about inland freight charges and truck freight because, as noted above, the cited pages break those out separately from ocean freight. 

9 As used by the Department and the parties, this term refers to 18 various inputs. See Appx1071; ECF 55, at 39 & 
Ct. No. 22-00152 Page 17 

that these subheadings “relate to raw steel inputs (in 

other words, plain steel) rather than manufactured 

products and thus did not accurately reflect the substantial further processing that Dingli’s steel components had undergone,” such that the Department undervalued the inputs and understated the company’s 

dumping margin. ECF 55, at 39–40. 

Commerce described the Coalition’s theory as being 

that Dingli’s inputs are “fabricated steel components 

that the company’s suppliers have already fabricated 

into components for incorporation into finished mobile 

access equipment goods.” Appx1070. The Coalition 

contended that the appropriate HTS subheading for 

such components was therefore 7326.90.90. 

Appx1070–1071. Dingli responded that it purchased 

“minimally processed steel plates/sheet” from its suppliers such that the “essential nature” did not change 

from the primary steel material. Appx1071. The Department agreed with the company and said the Coalition “did not provide any evidence to support its allegation” that the former misrepresented the degree of 

processing its suppliers performed, while Dingli produced letters from various suppliers describing production of the components. Appx1072. 

The Coalition now argues that Commerce erred by 

treating “numerous manufactured parts and [mobile 

n.5; ECF 59, at 29 & n.3 (citing Appx21446 for a full list of 

what the 18 inputs are). 
Ct. No. 22-00152 Page 18 

access equipment] components as plain steel.” ECF 55, 

at 40. It asserts that the evidence shows that Dingli’s 

suppliers sold components, not plain steel, id. at 40–

41, and that the Department erred by valuing all the 

inputs using HTS subheadings for plain steel fresh 

from a mill, id. at 43–44. It also emphasizes that the 

agency contradicted itself by acknowledging record evidence that Dingli’s suppliers “may do minimal work 

on a particular part . . . or in some cases, they may do 

more in-depth fabrication or processing,” id. at 45 

(quoting Appx1072), but still concluding that HTS subheadings for raw steel that state that the steel must 

be “not further worked” are somehow appropriate, id.

(citing Appx1070). 

Rather than respond to the Coalition’s arguments, 

the government asserts that Commerce’s conclusion 

was reasonable because it considered and accepted 

Dingli’s explanation. ECF 59, at 29. Acknowledging 

that “in certain instances, [Dingli’s suppliers] may do 

some minimal work on certain fabricated steel components,” id. at 30 (citing Appx3289–3321),10 the government argues that these letters are “part of the information that Commerce considered” and, apparently, 

contends that fact makes the Department’s conclusion 

10 See also id. (quoting a supplier letter stating, “We cut the 

plates using a laser cutting machine to specific shapes and 

sizes. We also bend some plates to specific angles using a 

bending machine to meet the drawing specifications. As required, holes are drilled into several pieces of steel plates.”) 

(quoting Appx1072, Appx3416). 
Ct. No. 22-00152 Page 19 

reasonable, id. at 30–31 (citing Appx1071), although it 

offers nothing to support that implicit conclusion. 

For its part, Dingli echoes Commerce’s conclusion 

that the Coalition failed to provide any evidence. 

ECF 53, at 21 (quoting Appx1072). But the company 

block-quotes the following sentence (among others) 

from the final determination: 

Although the letters from certain suppliers provided on the record indicate a wide range of fabrication that may be involved, depending on the 

input and specification requirements, record evidence demonstrates that Dingli’s suppliers may 

do minimal work on a particular part, such as 

cutting, bending, or punching holes[,] or in some 

cases, they may do more in-depth fabrication or 

processing. 

ECF 53, at 21 (quoting Appx1072) (emphasis added). 

With agency findings like that, the Coalition didn’t 

need any evidence. 

Commerce’s determination is internally inconsistent. While it said the Coalition failed to substantiate its allegation that Dingli’s suppliers provide fabricated components rather than plate steel, it turned 

around and acknowledged the company’s evidence 

that some suppliers “do more in-depth fabrication or 

processing.” Appx1072. These contradictions mean 

that the Department failed to support its conclusion 
Ct. No. 22-00152 Page 20 

with substantial evidence, so the court remands for reconsideration. 

3 

Two of Dingli’s inputs are devices called “Drive Motor 1” and “Drive Motor 2.” Before Commerce, the company offered evidence that because the latter acts 

solely as a motor, while the former does that and also 

functions as a generator via regenerative breaking, the 

two devices are not interchangeable. Appx1099. The 

Department accepted that characterization and used 

different HTS subheadings to value each input. See

Appx1102 (“[B]ecause HTS subheading 8501.32 encompasses both of the applicable HTS eight-digit subheadings (8501.32.10—electric motor and 

8501.32.20—generator), . . . HTS subheading 8501.32 

is the most representative and accurate [average unit 

value] for this input.”). 

The Coalition asserts that Commerce’s valuation is 

not supported by substantial evidence, and is contrary 

to law, because it overlooked that Drive Motor 1’s primary function is as a motor. ECF 55, at 49 (citing 

Appx6571). The Coalition considers that fact essential 

because, when classifying “items that are composite 

items or have more than one function, the primary 

function of the items is the controlling function in 

terms of tariff classification.” Id. at 50. 

Although both the Coalition and the government 

assert various arguments based on tariff classification 
Ct. No. 22-00152 Page 21 

principles and the General Rules of Interpretation,11

they overlook the essential point—persuasively made 

by Dingli, see ECF 53, at 18–19—that this is an antidumping case, “not a customs classification case.” 

Downhole Pipe & Equip., L.P. v. United States, 776 

F.3d 1369, 1379 (Fed. Cir. 2015) (emphasis in original). Consequently, rather than “engage in a classification analysis to determine which [HTS] subheading 

contained [the relevant input],” id., Commerce “was 

required to determine which of the competing subheadings constituted the best available information 

for valuing [that] input,” id. In classification cases, 

Customs and Border Protection’s role is to determine 

how to classify merchandise for tariff purposes, while 

in antidumping cases the Department’s job is to determine the duty needed to remedy the effects of lessthan-fair-value sales of foreign merchandise in the 

United States. SolarWorld Americas, Inc. v. United 

States, 910 F.3d 1216, 1224 (Fed. Cir. 2018). 

To be sure, the Coalition—while not addressing 

Dingli’s citation of SolarWorld—claims that its point 

is not that the Department and Customs are “bound 

by the same objectives.” ECF 57, at 29. Rather, it argues, “the primary function of Dingli’s merchandise 

11 “The proper classification of merchandise entering the 

United States is directed by the General Rules of Interpretation . . . of the [Harmonized Tariff Schedule of the United 

States] and the Additional United States Rules of Interpretation.” Orlando Food Corp. v. United States, 140 F.3d 

1437, 1439 (Fed. Cir. 1998). 
Ct. No. 22-00152 Page 22 

was a valid and important consideration regarding the 

appropriate [surrogate value] selection. Commerce 

was required to address this argument, and it failed to 

do so.” Id. at 29–30. The court disagrees given the Federal Circuit’s clear holding that the Department need 

not follow classification principles. 

The agency explained that the record shows that 

Drive Motors 1 and 2 are different devices with different functionality—a point no party disputes—and concluded that (1) it is therefore appropriate to use different HTS subheadings to value them and (2) 8501.32 

encompasses subheadings covering both (undisputed) 

functions. Appx1102. The Coalition in effect asks the 

court to reweigh findings. “This court’s duty,” however, 

“is not to evaluate whether the information Commerce 

used was the best available, but rather whether a reasonable mind could conclude that [it] chose the best 

available information.” Downhole Pipe, 776 F.3d 

at 1379 (cleaned up). Here, a reasonable mind could so 

conclude that the Department chose the best available 

information. 

B 

Commerce’s regulations govern when interested 

parties may submit certain “factual information”12

during an administrative proceeding. See 19 C.F.R. 

12 The applicable definition of “factual information” varies 

with the relevant context. See 19 C.F.R. 

§ 351.102(b)(21)(i)–(v). 
Ct. No. 22-00152 Page 23 

§ 351.301. The Coalition challenges the Department’s 

acceptance of certain such information from Dingli.13

1 

In an antidumping investigation, an interested 

party may submit “factual information to value factors 

of production under § 351.408(c).”14 19 C.F.R. 

§ 351.301(c)(3)(i); see also id. § 351.102(b)(21)(iii) (defining “factual information” as including “[p]ublicly 

available information submitted to value factors [of 

production] under § 351.408(c)”). Other interested parties in turn may tender “publicly available information 

to rebut, clarify, or correct such factual information 

submitted pursuant to § 351.408(c).” 

Id. § 351.301(c)(3)(iv) (emphasis added); see also above

note 4 (explaining the regulatory basis for Commerce’s 

preference for using non-BPI information to value the 

factors of production in nonmarket-economy cases). 

Dingli submitted BPI mill test certificates 

(Appx3827–3933) to rebut data submitted by the Coalition to value certain factors of production. Over the 

13 The Coalition’s opening brief identifies the universe of 

Dingli’s factual submissions ostensibly at issue, see

ECF 55, at 53 n.10, but then only addresses certain of those 

submissions in its ensuing discussion. The court finds the 

Coalition’s argument waived as to submissions not so addressed. 

14 Section 351.408(c) in turn addresses valuation of factors 

of production for use in calculating normal value of imports 

from nonmarket-economy countries. 
Ct. No. 22-00152 Page 24 

latter’s objection that to do so violated 

§ 351.301(c)(3)(iv), Commerce accepted the submission, reasoning that it was the only means available to 

the company to “rebut, clarify, or correct the [surrogate value] information on the record.” Appx1058. 

Moreover, its “purpose” was “to support information 

. . . already on the record.” Id. The Department added 

that the material did not prejudice the Coalition. 

Appx1058–1059. Not only was the latter able to use it, 

Appx1058, it did not “provide any pre-verification comments” objecting to the submission, Appx1059. 

The Coalition argues that neither reason offered by 

the Department for accepting Dingli’s non-public rebuttal information excuses disregarding the regulation’s plain text. ECF 55, at 56–57. As to prejudice, it 

asserts that “there was no way for either the agency or 

[the Coalition] to corroborate or impeach this information.” Id. at 56. 

Although the government doesn’t dispute that 

Commerce’s acceptance of Dingli’s BPI submission violated the Department’s regulation, it argues that the 

agency provided a reasonable justification for doing so. 

ECF 59, at 44–45. It also emphasizes Commerce’s finding that the Coalition was not prejudiced. Id. at 46. 

For its part, Dingli asserts that the regulation does 

not expressly bar the submission of proprietary material, ECF 53, at 28, and that in any event the Coalition 

suffered no prejudice because it challenged the company’s mill test certificates in subsequent briefing, id. 
Ct. No. 22-00152 Page 25 

at 27. Dingli emphasizes—echoing the Department’s 

finding—that by neglecting to provide pre-verification 

comments, the Coalition “forewent an opportunity to 

have Commerce assess any concerns” regarding the 

company’s BPI certificates. Id. at 27–28. 

As the government implicitly concedes, Commerce 

plainly violated § 351.301(c)(3)(iv) by accepting 

Dingli’s non-public surrogate value rebuttal information.15 Even so, that’s not the end of the inquiry. 

The “general principle” is “that ‘[i]t is always within 

the discretion of . . . an administrative agency to relax 

or modify its procedural rules adopted for the orderly 

transaction of business before it when in a given case 

the ends of justice require it.’” PAM S.p.A. v. United 

15 The company’s contention that the Department permissibly accepted proprietary material because the regulation 

does not expressly prohibit it is wrong. Under the familiar 

expressio unius canon, § 351.301(c)(3)(iv)’s authorization 

for an interested party to submit “publicly available information” for rebuttal purposes necessarily implies that 

other defined types of information, such as BPI, are excluded. See 19 C.F.R. § 351.105(a) (“There are four categories of information in an antidumping or countervailing 

duty proceeding: public, business proprietary, privileged, 

and classified.”). As Scalia and Garner explain, “[w]e encounter” this canon “frequently in our daily lives. When a 

car dealer promises a low financing rate to ‘purchasers 

with good credit,’ it is entirely clear that the rate is not

available to purchasers with spotty credit.” Reading Law: 

The Interpretation of Legal Texts 107 (2012) (emphasis in 

original). 
Ct. No. 22-00152 Page 26 

States, 463 F.3d 1345, 1348 (Fed. Cir. 2006) (brackets 

in original) (quoting Am. Farm Lines v. Black Ball 

Freight Serv., 397 U.S. 532, 538–39 (1970)). If an 

agency articulates a reasonable justification for departing from its regulation, such a departure “is only 

rescindable ‘upon a showing of substantial prejudice.’” 

Id. (quoting Am. Farm Lines, 397 U.S. at 539). 

Commerce provided a reasonable explanation for 

accepting Dingli’s proprietary data here—it was the 

only means available to the company to “rebut, clarify, 

or correct the [surrogate value] information on the record,” Appx1058, and “the purpose” of the submission 

was “to support information . . . already on the record,” 

id.16 And although the Coalition claims that it suffered 

prejudice because it could not corroborate Dingli’s information, the Department found that the former 

raised no such concern in its pre-verification comments.17 Appx1059. Because this finding is not disputed, the court holds that the Coalition has not shown 

substantial prejudice from the agency’s acceptance of 

Dingli’s proprietary material. 

16 Indeed, the Department was arguably required under 

19 U.S.C. § 1677b(c)(1) to consider the company’s BPI rebuttal submission. See above note 4. 

17 Presumably the Coalition could have requested that 

Commerce test Dingli’s proprietary submission at verification. 
Ct. No. 22-00152 Page 27 

2 

Along with submitting certain BPI mill test certificates to rebut data submitted by the Coalition as described above, the company also submitted new information on its drive motor and cast-iron billet inputs. 

Appx3934–4400.18 The Coalition contends that all 

these submissions were untimely—and thus should 

have been rejected by the agency—because they were 

responsive to Commerce’s questionnaire.19 ECF 55, 

at 59–60. 

The problem with this argument is that the Coalition does not dispute—apart from the BPI aspect discussed above—Commerce’s determination that Dingli 

properly and timely submitted its data as to mill test 

certificates, drive motor inputs, and cast-iron billets as 

rebuttal information under § 351.301(c)(3)(iv). Indeed, 

as detailed above, the Coalition argues—and the court 

agrees, as also explained above—that 

§ 351.301(c)(3)(iv)’s prohibition on submitting proprietary material applies here. 

18 The Coalition’s brief identifies the asserted untimely information about mill test certificates, drive motor inputs, 

and iron billet inputs as encompassing Appx3828–4400. 

ECF 55, at 59. 

19 The 30-day deadline for Dingli to answer the questionnaire, see 19 C.F.R. § 351.301(c)(1)(i), had long since passed 

by the time the company submitted its surrogate value rebuttal containing the factual information in question. 
Ct. No. 22-00152 Page 28 

The Coalition can’t have it both ways—either 

§ 351.301(c)(3)(iv) applies (as it contends for purposes 

of objecting to the portion of Dingli’s rebuttal presentation that was BPI), or it doesn’t. If the regulation applies, then it doesn’t matter whether the company’s 

timely submission was also responsive to Commerce’s 

questionnaire (and therefore untimely for purposes of 

that document). The Coalition offers no reason why information responsive to a Commerce questionnaire is 

disqualified from presentation under 

§ 351.301(c)(3)(iv).20 The court accordingly concludes 

that the Department properly accepted Dingli’s timely 

submission under that regulation to rebut data submitted by the Coalition. 

* * * 

The court sustains in part Commerce’s decision and 

remands in part for further proceedings consistent 

with this opinion. 

Dated: May 31, 2024 /s/ M. Miller Baker

New York, NY M. Miller Baker, Judge 

20 The court assumes, but does not decide, that Dingli’s rebuttal information was so responsive.