Slip Op. 08-89

UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS 

________________________________________

:

NINGBO DAFA CHEMICAL FIBER CO., LTD.; :

CONSOLIDATED FIBERS, INC.; :

FIBERTEX CORPORATION; and :

STEIN FIBERS, LTD., :

:

Plaintiffs, :

: Court No.: 07-00236

v. :

:

UNITED STATES OF AMERICA, :

:

Defendant, :

:

and :

:

DAK AMERICAS LLC; NAN YA PLASTICS :

CORP. AMERICA; and WELLMAN INC., :

:

Defendant-Intervenors. :

________________________________________________

 Dated: September 2, 2008

Held: Plaintiffs’ Motion for Judgment Upon the Agency Record is

denied. The United States Department of Commerce’s determination is

affirmed. Case dismissed. 

deKieffer & Horgan, (Gregory S. Menegaz, John J. Kenkel); for

Ningbo Dafa Chemical Fiber Co., Ltd.; Consolidated Fibers, Inc.;

Fibertex Corporation; and Stein Fibers, Ltd.; Plaintiffs. 

Gregory G. Katsas, Assistant Attorney General, Commercial

Litigation Branch, Civil Division, United States Department of

Justice, Jeanne E. Davidson, Director, Commercial Litigation

Branch, Civil Division, United States Department of Justice,

Reginald T. Blades, Jr., Assistant Director, Commercial Litigation
Court No. 07-00236 Page 2

Branch, Civil Division, United States Department of Justice,

Stephen C. Tosini, Trial Attorney, Commercial Litigation Branch,

Civil Division, United States Department of Justice; Of Counsel:

Ahran Kang, Attorney, Office of the Chief Counsel for Import

Administration, Department of Commerce, for the United States,

Defendant.

Kelley Drye Collier Shannon, (Paul C. Rosenthal and David C. Smith,

Jr.) for DAK Americas LLC, Nan Ya Plastics Corp. America, and

Wellman, Inc., Defendant-Intervenors.

 

OPINION

TSOUCALAS, Senior Judge: This matter is before the Court on a

motion for judgment upon the agency record brought by plaintiffs

Ningbo Dafa Chemical Fiber Co., Ltd.; Consolidated Fibers, Inc.;

Fibertex Corporation; and Stein Fibers, Ltd. (“Plaintiffs” or

“Ningbo”) pursuant to USCIT Rule 56.2. Plaintiffs challenge

certain aspects of the final determination of the U.S. Department

of Commerce (“Commerce” or “Defendant”) in the antidumping duty

investigation of polyester staple fiber (“PSF”) from the People’s

Republic of China. Final Determination of Sales at Less Than Fair

Value and Partial Affirmative Determination of Critical

Circumstances: Certain Polyester Staple Fiber from the People’s

Republic of China, 72 Fed. Reg. 19,690 (Apr. 19, 2007) (“Final

Determination”). Domestic industry companies DAK Americas LLC, Nan

Ya Plastics Corp. America, and Wellman, Inc. join as DefendantIntervenors. 

For the reasons set forth below, the United States Department
Court No. 07-00236 Page 3

of Commerce’s determination is affirmed. 

JURISDICTION

The Court has jurisdiction over this matter pursuant to 19

U.S.C. § 1516a (a) (2000) and 28 U.S.C. § 1581 (c) (2000).

STANDARD OF REVIEW

When reviewing the final results in antidumping administrative

reviews, the Court will uphold Commerce’s determination unless it

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

not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i) (2000).

Substantial evidence is “more than a mere scintilla. It means such

relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Universal Camera Corp. v. NLRB, 340 U.S.

474, 477 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S.

197, 229 (1938)). 

Substantial evidence “is something less than the weight of the

evidence, and the possibility of drawing two inconsistent

conclusions from the evidence does not prevent an administrative

agency's finding from being supported by substantial evidence.”

Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620 (1966)

(citations omitted). 
Court No. 07-00236 Page 4

 Ningbo describes PET bottle flake as “cut pieces of 1

plastic water bottles and the like.” Pls.’ Br. at 3.

 Ningbo notes that PET flake constitutes nearly 100% of 2

the raw material by weight used in production of its recycled PSF

covered by the scope of this investigation. See Pls.’ Br. at 3.

 Unless otherwise noted, reference to all documents herein 3

shall refer to the public version of those documents.

 Therefore, by and large, white PSF is made from white PET 4

flake, green PSF from green PET flake and brown PSF from brown

PET flake. See Commerce Br. at 4.

BACKGROUND

A petition seeking initiation of an antidumping duty

investigation of Certain Polyester Staple Fiber from the People’s

Republic of China was filed with Commerce on June 23, 2006. Public

Record (“PR”) Doc. No. 1. Commerce published a Notice of

Initiation in the Federal Register on July 20, 2006. PR Doc. No.

12. 

Ningbo Dafa, a privately held company organized under the laws

of China, recycles Polyethylene terephthalate (“PET”) bottle flake1

into white, green and brown-colored PSF for sale domestically and

for export throughout the world. See Pls.’ Rule 56.2 Mem. in 2

Supp. of Mot. for J. upon the Agency R. (“Pls.’ Br.”) at 2; Def.’s

Resp. to Pls.’ Mot. for J. upon the Administrative R. (“Commerce

Br.”) at 4. PET flake is purchased by Ningbo in a variety of 3

colors, and the color (or colors) of PET flake used in the

production of PSF determines the PSF’s ultimate color. See 4
Court No. 07-00236 Page 5

 The POI here is October 1, 2005, to March 31, 2006. 5

Commerce Br. at 4. 

The parties agree that white PET flake is more expensive to

purchase than green PET flake, while green is more expensive to

purchase than brown PET flake. See PR Doc. No. 261; Commerce Br. at

4. Similar to the PET flake cost hierarchy, once PET flake is

processed into PSF, white PSF is sold at higher prices than green

PSF, while green PSF is sold at higher prices than brown PSF. Id.

On September 18, 2006, Commerce recommended that in selecting

respondents in this investigation it is most appropriate to choose

the exporters or producers that account for the largest volume of

subject merchandise during the period of investigation ("POI"),

based on volume of total metric tons shipped. The three exporters 5

or producers thus selected were Ningbo, Cixi Jiangnan Chemical

Fiber Co., Ltd., and Far Eastern Industries Ltd. See PR Doc. No.

77. 

On September 20, 2006, Commerce sent its antidumping duty

questionnaire to Ningbo Dafa, requiring the company to report its

factors of production and any market economy purchases made by the

company during the POI. See Investigation of Certain Polyester

Staple Fiber from the People's Republic of China: Issues and

Decision Memorandum (“I&D Memo”) at 58 (April 10, 2007). In its

November 8, 2006 response, Ningbo Dafa reported on its market-
Court No. 07-00236 Page 6

 Commerce noted that Ningbo Dafa’s previous December 2006 6

submission did not submit MEP data in the manner requested. The 

supplemental questionnaire stated that “[t]he Department is

(continued...)

economy purchases (“MEPs”) of PET bottle flake, but did not include

a breakdown by color. PR Doc. No. 120; Confidential Record (“CR”)

Doc. No. 57.

On November 11, 2006, Commerce issued Ningbo Dafa a

supplemental questionnaire that requested MEP worksheets for each

product type sold in the United States during the POI. PR Doc. No.

129. On December 6, 2006, Ningbo Dafa submitted its supplemental

questionnaire response, including an MEP worksheet that did not

provide a breakdown by color of PET flake purchases, and stated

that for PSF, the finished “color is a simple function of the color

of the material input used, not the quantity of material used.” PR

Doc. No. 153; CR Doc. No. 69. Commerce relied on Ningbo’s numbers

in this response for its preliminary determination. See Preliminary

Determination of Sales at Less Than Fair Value and Partial

Affirmative Determination of Critical Circumstances: Certain

Polyester Staple Fiber from the People's Republic of China, 71 Fed.

Reg. 77,373 (Dec. 26, 2006) (“Preliminary Determination”). 

On January 31, 2007, Commerce sent Ningbo a MEP supplemental

questionnaire asking again for Ningbo Dafa to specifically identify

the “quantities, values and average-unit values of your market

economy purchases of gross flake, segregated by color.” PR Doc. 6
Court No. 07-00236 Page 7

(...continued) 6

providing Ningbo Dafa with a final opportunity to provide a

market economy purchase spreadsheet for gross flake, inclusive of

the color.” PR Doc. No. 208.

 Ningbo notes that “[i]n the final determination in the 7

underlying investigation, margins dropped dramatically for all

(continued...)

No. 208. Ningbo’s response stated that “since the raw material

purchase invoices do not always specify the colors and since the

company does not track inventory by specific colors in its raw

material inventory ledgers, it is not possible to complete the MEP

spreadsheet by segregating MEP purchases by color.” PR Doc. No.

218.

Commerce conducted an on-site verification of Ningbo Dafa

during February 2007. During this visit company officials informed

Commerce that Ningbo Dafa needs to be able to make all colors of

PSF at anytime and that in order to do so Ningbo maintains a large

inventory of flake (two to three months) at all times to ensure the

proper colors of gross flake are available. PR Doc. No. 232.

In its Final Determination Commerce determined that PSF from

the PRC is being, or is likely to be, sold in the United States

at less than fair value (“LTFV”) as provided in section 735 of

the Tariff Act of 1930, as amended ("the Act"). Commerce

assigned Ningbo a weighted-average dumping margin rate of 4.86%,

up from the rate of 4.39% assigned Ningbo in the Preliminary

Determination.7
Court No. 07-00236 Page 8

(...continued) 7

respondents except for Ningbo Dafa due to many general

adjustments and a few specific adjustments to the antidumping

margins.” Pls.’ Br. at 16.

 Ningbo notes that it purchases PET flakes in dozens of 8

shades of colors, including whites, greens, browns, blues, reds

and mixed color batches. Pls.’ Br. at 5.

Oral argument for this case was held before this Court on

April 14, 2008. 

DISCUSSION

I. Color-Specific Flake Valuation 

As referenced above PET flake constitutes the main raw

material used by Ningbo in production of recycled PSF. Commerce

determined that because color-specific PET flake purchases had a

direct effect upon the price of the finished PSF, that therefore

this information was necessary to calculate normal value

accurately. Commerce Br. at 11. With the exception of a few MEP

invoices which identified color, Ningbo did not (Ningbo argues

that it could not) report color-specific PET flake costs. Pls.’ 8

Br. at 14.

Plaintiffs argue that color-specific PET flake valuation was

not necessary for an accurate calculation of Ningbo’s normal

value, and therefore cannot be the basis for Commerce using

“facts available.” See Id. at 23. The Court will address

initially the premise of Plaintiffs’ argument (i.e., whether

Commerce reasonably determined that color-specific flake
Court No. 07-00236 Page 9

 Commerce’s use of “facts available” based on its 9

determination that color-specific valuation was necessary will be

addressed in the following section of this opinion.

valuation was necessary for an accurate calculation of Ningbo’s

normal value). 

9

The crux of Plaintiffs’ argument as to this issue is that

Commerce “disregarded [the color-specific] requirement” for other

PET raw materials used by the other mandatory respondents

manufacturing colored PSF in this investigation. Id. at 23-24. 

The implication by Ningbo seems to be therefore that colorspecific valuation is not necessary for an accurate calculation

of normal value in its case. By way of example, Ningbo notes

that Far Eastern Textiles and Cixi Jiangnan both reported

consumption of various types of PET fiber waste and Commerce

valued these materials according to a single average rupee per

kilogram value of such fiber imports reported in the Indian

Import Statistics of the World Trade Atlas (“WTA”), irrespective

of color. See Id. at 24; I&D Memo (Comment 7). Ningbo also

points out that Commerce recognized that the tariff number of the

fiber imports, HTS 5505.10, is not color-specific. See Pls.’ Br.

at 24; I&D Memo (Comment 7). 

Plaintiffs also note that Commerce “frequently encounters

[the] situation in non-market economy cases . . . where the

surrogate values available . . . do not permit an exact match to
Court No. 07-00236 Page 10

 Cixi Jiangnan noted that, in its case, different colors 10

of PSF are marketed and sold differently and the materials are

acquired differently. PR Doc. No. 74; Commerce Br. at 12. 

the physical properties of a particular respondent’s inputs.”

Pls.’ Br. at 25. Plaintiffs state that Commerce, therefore,

routinely fulfills its statutory mandate to select the “best

available information” to value factors of production by resort

to less specific references for surrogate values. Id. For this

proposition, Plaintiffs cite to Polyethylene Retail Carrier Bag

Comm. v. U.S., 29 CIT 1418 (2005), stating that there the Court

upheld the Department’s preference for less color-specific WTA

import statistics over domestic color-specific Indian prices. 

Pls.’ Br. at 25.

For its part, Commerce responds that the Plaintiffs’

assertion that color-specific cost reporting is not essential to

normal value is belied by the fact that Ningbo’s PSF pricing was

dependent upon the color of the PET flake used during production. 

See Commerce Br. at 11. Commerce also points out that fellow PSF

producer Cixi Jiangnan noted that recognizing color-specific

values for PSF “could improve the accuracy of the antidumping

margin calculations.” Id. at 12; PR Doc. No. 74. 10

Commerce states that Plaintiffs’ contention that Commerce

considered color-specific valuation unnecessary in other

investigations is unavailing. Commerce Br. at 13. As to

Polyethylene Retail Carrier Bag Comm., 29 CIT 1418, Defendant
Court No. 07-00236 Page 11

distinguishes the case by stating that color was not an important

factor in valuing consumption of ink (which was the factor in

issue in that case). Commerce Br. at 13.

The essential element of Commerce’s determination therefore

is that because the color of PET flake affected the price of the

finished PSF product, it was reasonable to request color-specific

flake values. The Court finds that Commerce’s determination as

to this point is supported by substantial evidence in the record

and the Court will not re-weigh the evidence. 

Commerce correctly points out that as a general rule, it

“has the discretion and ‘authority to determine the extent of

investigation and information it needs.’” Polyethylene Retail

Carrier Bag Comm., 29 CIT at 1433 citing PPG Indus. Inc. v.

United States, 978 F.2d 1232, 1238 (Fed. Cir. 1992); Commerce Br.

at 11. The colors of PET flake that Ningbo produces (white,

green and brown) are bought at different prices and the

corresponding finished recycled PSF is sold at different prices. 

The three PSF colors Ningbo produces are in a sense three

distinct products and it is therefore reasonable that Commerce

would request color-specific valuation of Ningbo’s PET flake

purchases that comprise the finished PSF products. 

Ningbo’s argument here, resting as it does on certain of

Commerce’s determinations in this investigation as to Far Eastern

Textiles and Cixi Jiangnan, with nothing more, is not persuasive. 
Court No. 07-00236 Page 12

 Although Commerce does not directly address the Far 11

Eastern Textiles and Cixi Jiangnan valuations in its brief, the

Court notes that the circumstances relevant to the determinations

of those two companies, including Far Eastern Textiles’ and Cixi

Jiangnan’s MEPs, are not directly analogous to the circumstances

here. See I&D Memo.

 Commerce having found that total adverse facts available 12

was not warranted here, stated that “because Ningbo Dafa failed

to provide information in the form and manner requested by the

Department and did not suggest alternative forms in which it was

able to submit the requested information, the Department, in

accordance with sections 776(a)(2)(B) and 782(c)(1) of the Act,

has applied partial facts available to Ningbo Dafa's PET flake.” 

(continued...)

The facts relevant to the Far Eastern Textiles and Cixi Jiangnan

determinations are different from the case at hand, and so it is

not surprising that certain aspects of those two determinations

are different from this one. 

11

II. Application of “Facts Available”

In calculating an antidumping duty margin rate, if

“necessary information is not available on the record . . .

[Commerce] shall, subject to [19 U.S.C. § 1677m(d)], use the

facts otherwise available” in calculating the rate. 19 U.S.C. §

1677e(a). 

As referenced above, Commerce applied “facts available” in

calculating the value of Ningbo’s PET flake purchases because it

determined that color-specific information was necessary to

calculate normal value accurately and Ningbo did not provide

color-specific information. See Final Determination. Ningbo 12
Court No. 07-00236 Page 13

(...continued) 12

I&D Memo at 58. 

Dafa did not make color-specific data available in the initial

questionnaire nor subsequent correspondence because it did not

maintain color-specific records. See Commerce Br. at 14. 

There is therefore a basic two-prong analysis revolving

around the necessity of the information and its availability on

the record. The Court found supra that Commerce’s determination,

that color-specific prices of Ningbo’s PET flake were necessary

to calculate an accurate antidumping margin, was a reasonable

one, and therefore prong one is satisfied. As to the second

prong, the parties concede that there is not any significant

color-specific information on the record, and so this prong is

also satisfied. Consequently the application of “facts

available” by Commerce is lawful and reasonable under the

circumstances herein. 

 

III. Commerce’s PET Flake Valuation Methodology

When factors of production are purchased from market economy

suppliers and paid for in market economy currency, as is the case

here, Commerce will generally value these factors using the

market economy price. See 19 C.F.R. § 351.408(c)(1); Commerce

Br. at 3.
Court No. 07-00236 Page 14

As discussed above, only a small percentage of Ningbo’s MEP

invoices of PET flake indicated a color, and where a color was

indicated it was white or green. None of Ningbo’s MEP invoices

indicated the color brown (the lowest cost flake). In explaining

the valuation process it took concerning Ningbo’s MEP invoices,

Commerce noted that under 

“partial facts available, because Ningbo Dafa

did have some invoices reflecting white and

green PET flake, we have used these prices to

calculate a surrogate value for these

purchases of flake. Because Ningbo Dafa's

invoices do not reflect a value for brown PET

flake, the Department has subtracted the

quantities and values contained on the

invoices for white and green PET flake from

the total quantity and value (excluding

Thailand and South Korea) of all Ningbo

Dafa's market economy purchases of PET

flake.” (Citations omitted)

 

I&D Memo at 58-59.

In other words, the few invoices that indicated white and

green provided Commerce with values from which to extrapolate the

total value of Ningbo’s white and green PET flake purchases. 

Accordingly, the great majority of Ningbo’s MEP invoices (i.e.,

the invoices that did not identify any PET flake color

whatsoever) were assigned the color brown by Commerce. 

Commerce quotes the Statement of Administration Action

Accompanying the Uruguay Round Agreements Act (“SAA”) as saying

that “neither Commerce nor the Commission must prove that the

facts available are the best alternative information. Rather, the
Court No. 07-00236 Page 15

facts available are information . . . which are reasonable to

use under the circumstances.” H.R. REP. NO. 103-316, at 869-70

(1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4198-99; Commerce

Br. at 15.

Commerce notes that if it finds remedial responses to be

unsatisfactory, it “may, subject to section 1677m(e), disregard

‘all or part of the original and subsequent responses’ in favor

of facts otherwise available.” SKF USA Inc. v. United States, 116

F. Supp. 2d 1257, 1268, 24 CIT 822, 835 (2000); Commerce Br. at

14.

Ningbo argues that the Department’s choice of facts

available was not “neutral” because “it significantly increases

the overall cost of Ningbo Dafa’s key raw material over the

verified audited actual total cost.” Pls.’ Br. at 36. Plaintiffs

criticize Commerce for, among other things, assigning

approximately 95 percent of the flake tonnage in the MEP invoices

to the color brown, and in so doing assigning brown PET flake,

the lowest cost color, the average value of all PET flake. Id. at

36-38. Ningbo argues that “POI production and sales quantities

of brown PSF were well under 10 percent.” Id. at 22.

Commerce does not address Ningbo’s production and sales

quantities numbers directly but instead argues that Ningbo

“provides an array of calculations in an attempt to demonstrate

that the facts used were adverse [but that] these speculative
Court No. 07-00236 Page 16

calculations were not proffered during the investigation, and

thus, Commerce lacked the opportunity to consider them.” 

Commerce Br. at 16. Although the Court does not agree with

Commerce’s stance here, it does concur with Commerce’s

alternative argument that Ningbo’s calculations fail to

demonstrate that the use of average prices for white, green and

brown flakes created higher dumping margins than if Ningbo Dafa

had provided actual PET flake purchase prices by color. Id. at

17. 

The Court finds that the approach Commerce took was a

reasonable one under the circumstances. Having no way to

reconstruct the actual PET flake colors associated with those MEP

invoices that did not indicate any color, Commerce used what

little information it had to fashion its approach, factoring in

the non-color indicating MEPs as brown. The white and green PET

flake prices were simply an average of the white- and greenspecific invoices, respectively. Commerce then divided the

average price by the net quantity of known white and green PET

flake purchases. This part of the methodology is straightforward as Commerce simply used the only definite color-specific

information it had on the record. For its part, Ningbo does not

put forth a credible argument that these prices are somehow

unrepresentative of white or green prices as a whole. The Court

therefore finds that Commerce’s approach here was reasonable and
Court No. 07-00236 Page 17

supported by substantial evidence on the record. 

The assigning of the remainder of Ningbo’s MEP invoices

(i.e., the invoices that did not identify any PET flake color

whatsoever) the color brown, raises a different analysis. Here,

absent any information to the contrary, Commerce selected as a

default the color brown (the least expensive of the PET flake

colors). Because there is no definitive way to tell which PET

flake colors these non-color identifying invoices can actually be

attributed to, the Court finds that Commerce’s approach here

under the circumstances was reasonable and supported by

substantial evidence on the record. While it is true that

Commerce could have selected alternate methods to allocate the

non-color identifying invoices by color, it is also true that

because of the lack of information on the record that these

alternatives would also be imperfect surrogates. Ultimately, the

record does not indicate a clearly better method for valuation

than the one used by Commerce.

 

IV. The Reliability of the Color-Specific Invoices

Plaintiffs argue that Commerce’s “reliance on a handful of

[MEP] supplier invoices to value Ningbo Dafa’s PET bottle flake

cost on a color-specific basis” was not reasonable nor in

accordance with the law. See Pls.’ Br. at 27.

Plaintiffs note that Commerce is directed by statute to
Court No. 07-00236 Page 18

 Ningbo notes that Commerce indicated that it “intended to 13

raise the minimum purchase percent threshold from a practice

percentage ranging 5-10 percent to 33 percent.” Pls.’ Br. at 28;

Antidumping Methodologies: Market Economy Inputs, Expected NonMarket Wages, Duty Drawback; and Request for Comments, 71 Fed.

Reg. 61716 (Oct 19, 2006).

 Ningbo states that the white groupings did not exceed one 14

percent of MEP purchases, green tonnage did not exceed four

percent, and there were no invoices listing any other color. See

Pls.’ Br. at 29. 

select the “best available information” for valuing the factors

of production in the calculation of normal value. See Id.; 19

U.S.C. § 1677b(c)(1). While Ningbo concedes that there is a

preference for the valuation of raw materials from qualifying

market suppliers where possible (19 C.F.R. § 351.408(c)(1)), it

notes that there is a qualification to this preference in that

the market sources must be in sufficient quantities relative to

the overall quantity purchased so as to be reliable and

representative of that overall quantity. Pls.’ Br. at 27-28 13

citing Antidumping Methodologies: Market Economy Inputs, Expected

Non-Market Economy Wages, Duty Drawback; and Request for

Comments, 71 Fed. Reg. 61716 (Oct. 19, 2006). Ningbo explains

that it did not have market purchases in any specific color that

equaled or exceeded five percent of its MEPs. Pls.’ Br. at 29. 14

Therefore, Ningbo concludes, the few color-specific prices cannot

lawfully be attributed to all of production. Id. at 31.

Commerce counters that it need not use surrogate data when a

factor is purchased from a market economy supplier in a market
Court No. 07-00236 Page 19

economy currency (19 C.F.R. § 351.408(c)(1)) and that

“[c]onsistent with this policy and 19 U.S.C. § 1677b(c)(1)”

Commerce valued Ningbo’s PET flake based on the “best available

information.” Commerce Br. at 18. Commerce notes that “100

percent of Ningbo’s PET flake purchases were market economy

purchases, and therefore, [it] reasonably applied the market

economy purchase prices.” Id. at 19. Commerce adds that “the

fact that [it] applied facts available to value separately the

specific costs of PET flake purchased does not render the policy

inapplicable.” Id. The Court agrees. 

The fact that the MEP invoices did not in most cases

specifically identify a color does not disqualify them as

otherwise acceptable invoices reflecting MEPs. Specifically, the

invoices collectively account for far greater than five percent

of the total volume of PET flakes purchased during the POI and

the application of “facts available” to these invoices does not

change this analysis. Commerce’s determination to value Ningbo’s

PET flake in this way is based on the “best available

information” and supported by substantial evidence on the record.

 

V. Commerce Requirements 

Plaintiffs argue that Commerce failed to (1) establish the

necessity for “alleged missing facts on the record” (i.e., colorspecific costs for Ningbo’s PET flake purchases); (2) advise
Court No. 07-00236 Page 20

Ningbo Dafa of the deficiencies in its responses; and (3) justify

why it was unable to use certain data submitted by Ningbo Dafa

that met the criteria of the Tariff Act for its consideration. 

Pls.’ Br. at 31. Ningbo contends that because Commerce did none

of the above in its I&D Memo, that a remand is required.

The Court has addressed the reasonableness of Commerce

requiring color-specific costs for Ningbo’s PET flake purchases

supra and therefore need not repeat its analysis here. 

As to Commerce advising Ningbo of the deficiencies in

responses, Commerce responds that it “complied with that statute

by requesting that Ningbo [Dafa] report all of its factors of

production in the initial questionnaire, and by continuing to

request clarification of its market economy purchases of PET

flake - including by color.” Commerce Br. at 14. The Court

agrees that these provide sufficient advisement to Ningbo under

the law of the deficiencies in its responses.

Lastly, Ningbo’s argument regarding Commerce’s alleged lack

of justification for its inability to use certain data submitted

by Ningbo (i.e., the use of an average unit flake value) also

revolves around the issue of Commerce requiring color-specific

flake costs, which is addressed supra.

VI. Additional Plaintiffs’ Contentions

In its brief Ningbo also presents certain allegations
Court No. 07-00236 Page 21

intimating a certain bias toward it in this investigation, among

them that Ningbo was a “‘marked’ respondent from the commencement

of the antidumping investigation” and that Commerce “cut its

investigation short.” Pls.’ Br. at 2, 11. Although serious

accusations, Ningbo does not offer much in the way of

substantiating these charges. The Court therefore will not

address the specifics of these contentions but will note that the

record does not support Ningbo as to these issues. 

CONCLUSION

For the reasons stated above, Commerce’s determination is

affirmed and this case is dismissed. 

 /s/ Nicholas Tsoucalas 

 NICHOLAS TSOUCALAS

 SENIOR JUDGE

Dated: September 2, 2008

New York, New York