Slip Op. 15-23

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 and ORDER 

[Plaintiffs’ motion for judgment on the agency record is denied.] 

Dated: March 25, 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 Stuart F. Delery, 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 

Camelia C. Mazard, Robert W. Doyle, Jr., and Andre P. Barlow, Doyle 

Barlow & Mazard PLLC of Washington, DC, for defendant-intervenor 

Resco Products, Inc. 

Joseph W. Dorn and Brian E. McGill, King & Spalding LLP, of

Washington, DC, for defendant-intervenor ANH Refractories Company.

Tsoucalas, Senior Judge: Plaintiffs Fengchi Import and 

Export Co., Ltd. of Haicheng City, Fengchi Refractories Co. of 

Haicheng City, and Fedmet Resources Corporation (collectively

“Plaintiffs”), move for judgment on the agency record contesting 

defendant United States Department of Commerce’s (“Commerce”)

determination in 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”). Commerce and defendantintervenors, Resco Products Inc. and ANH Refractories Company,

oppose Plaintiffs’ motion. For the following reasons, Plaintiffs’

motion is denied.

BACKGROUND

Magnesia carbon bricks (“MCBs”) from the People’s 

Republic of China (“PRC”) are subject to an antidumping duty order.

See Certain MCBs From Mexico and the PRC: Antidumping Duty Orders,

75 Fed. Reg. 57,257 (Sept. 20, 2010) (“Orders”). On October 31, 

2011, Commerce initiated an administrative review of the Orders,

covering sales of subject merchandise between March 12, 2010 and 

August 31, 2011 (“2010-2011 Administrative Review”). See 
Court No. 13-00186 Page 3 

Initiation of Antidumping and Countervailing Duty Administrative 

Reviews and Request for Revocation in Part, 76 Fed. Reg. 67,133,

67,135 (Oct. 31, 2011). Commerce named Fengchi Import and Export 

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

City, as mandatory respondents.1 Id. Fedmet, a domestic importer 

of Fengchi’s merchandise, joined the review as an interested party. 

See Letter to Commerce re: Antidumping Duty Order on Certain MCBs 

from the PRC, Administrative Review (3/12/10–8/31/11): Entry of 

Appearance and APO Application (Oct. 31, 2012), Public Rec.2 137 

at 1. On March 14, 2012, Commerce issued its standard nonmarket 

economy questionnaire to Fengchi, seeking information on Fengchi’s

factors of production and U.S. sales of subject merchandise. See 

MCBs from the PRC: Antidumping Duty Questionnaire, (Mar. 14, 2012) 

PR 62 at 1.

 Concurrent with 2010-2011 Administrative Review, 

Commerce conducted a scope inquiry to determine whether magnesia 

alumina carbon bricks (“MACBs”) from the PRC were subject to the 

Orders. See Certain MCBs from the PRC: Issues and Decision 

1 Fengchi Import and Export Co., Ltd. of Haicheng City is a Chinese 

exporter of MCBs, and Fengchi Refractories Co. of Haicheng City is 

its affiliated producer. See Final Results, 78 Fed. Reg. at 

22,230. Throughout the opinion, the court will refer to them 

collectively as “Fengchi.” 

2 Hereinafter, documents in the public record will be designated 

“PR” and documents in the confidential record designated “CR” 

without further specification except where relevant. 

 
Court No. 13-00186 Page 4 

Memorandum for the Final Results of the 2010–2011 Administrative 

Review, (Apr. 9, 2013) PR 148 at 1–2 (“IDM”). On July 2, 2012, 

Commerce issued the final results of its scope inquiry, determining

that MACBs were within the scope of the Orders. See Certain MCBs 

from the PRC and Mexico: Final Scope Ruling — Fedmet Resources 

Corporation at 1–2, Case Nos. A-201-837, A-570-954 and C-570-955 

(July 2, 2012) (“MACB Scope Ruling”). 

After issuing the MACB Scope Ruling, Commerce sent a 

supplemental questionnaire to Fengchi indicating its intention to 

consider sales of MACBs as part of the 2010-2011 Administrative 

Review. See First Antidumping Administrative Review of Certain

MCBs from the PRC: Sections C and D Supplemental Questionnaire,3

(Aug. 3, 2012) CR 46 at 3. Moreover, Commerce requested that 

Fengchi confirm whether it had reported all sales of subject 

merchandise, including MACBs, in its initial questionnaire 

responses, and if not, it requested that Fengchi provide such 

3 Petitioner ANH Refractories Company (“ANH”) requested that 

Commerce include MACB sales in the 2010-2011 Administrative Review 

after Commerce issued the preliminary results of the scope inquiry. 

See Letter to Commerce re: MCBs from China: Scope of the 

Administrative Review, (Apr. 18, 2012) CR 22 at 2. Fengchi 

responded that Commerce’s preliminary scope ruling was not a final 

determination and thus Commerce should not require Fengchi to 

provide information on its MACB sales. See Letter to Commerce re: 

Antidumping Order on Certain MCBs from the PRC; Antidumping Duty 

Administrative Review, PR 67 at 1–3 (Apr. 23, 2012). However, 

Commerce did not request information on Fengchi’s MACB sales during 

the 2010-2011 Administrative Review until after it issued the MACB 

Scope Ruling. See CR 46 at 3. 
Court No. 13-00186 Page 5 

information. See id. Additionally, Commerce provided Fengchi 

with sales data it acquired from U.S. Customs and Border Protection 

(“CBP”) indicating that Fengchi made entries of MACBs during the 

period of review (“POR”). See id., att. 2 at 1.

Fengchi did not provide information on its MACB sales in 

its response to the supplemental questionnaire, but instead, 

submitted a series of letters to Commerce in which it insisted 

that Commerce’s request was improper. See Letter to Commerce re: 

Antidumping Order on Certain MCBs from the PRC; Antidumping Duty 

Administrative Review (3/12/10-8/31/11), (Aug. 9, 2012) PR 104 at 

1–5; Letter to Commerce re: Antidumping Order on Certain MCBs from 

the PRC; Antidumping Duty Administrative Review (3/12/10-8/31/11),

(Aug. 14, 2012) PR 106 at 1–2; Letter to Commerce re: Antidumping 

Order on Certain MCBs from the PRC; Antidumping Duty Administrative 

Review (3/12/10–8/31/11), (Aug. 29, 2012) PR 114 at 2–4. Fengchi 

argued that Commerce’s request was “extremely unreasonable” and 

“well past the 90-day deadline” under 19 C.F.R. § 351.225(l)(4), 

because Commerce initiated the 2010-2011 Administrative Review 

eight months before it issued the MACB Scope Ruling. See PR 104 

at 3, 4. Commerce offered to extend the deadline for Fengchi to 

provide MACB sales information on multiple occasions, but Fengchi 

continuously declined to comply with Commerce’s request for 

information. See Letter to Fengchi re: First Antidumping 
Court No. 13-00186 Page 6 

Administrative Review of Certain MCBs from the PRC, (Sept. 7, 2012) 

PR 125 at 1–2.

 Commerce issued the Preliminary Results of the 2010-2011

Administrative Review in October 2012. See Certain MCBs From the 

PRC: AD Administrative Review; 2010-2011, 77 Fed. Reg. 61,394 (Oct. 

9, 2012) (“Preliminary Results”). See also Decision Memorandum 

for Preliminary Results of Antidumping Duty Administrative Review: 

Certain MCBs from the PRC, PR 132 (Oct. 1, 2012) (“PRM”). Commerce

determined that Fengchi’s refusal to provide information on its 

MACBs sales constituted a failure to cooperate with the review to 

the best of its ability and applied total adverse facts available 

(“AFA”). PRM at 8–9. It selected an AFA rate of 236%, based on 

the petition rate from the investigation. PRM at 10. 

 Commerce issued the Final Results in April 2013,

upholding the Preliminary Results in their entirety. Final

Results, 78 Fed. Reg. at 22,230; see IDM at 1. 

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 

1930,4 as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2012). The 

court will uphold Commerce’s final determination in an antidumping 

4 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 7 

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 

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

 Plaintiffs contests the following aspects of the Final 

Results: Commerce’s request for sales information on MACBs;
Court No. 13-00186 Page 8 

Commerce’s application of AFA; Commerce’s selection of 236% as the

AFA rate. See Pls.’ Br. Supp. Mot. J. Agency R. at 8–23 (“Pls.’ 

Br.”).

As an initial matter, the Court of Appeals for the 

Federal Circuit (“CAFC”) issued an opinion overturning the MACB

Scope Ruling on June 20, 2014, after the completion of briefing in 

this case. See Fedmet Res. Corp. v. United States, 755 F.3d 912, 

914 (Fed. Cir. 2014). Plaintiffs argue in their brief that a 

reversal of the MACB Scope Ruling will resolve the issues in this 

case because “there would be no lawful basis for Commerce to impose 

antidumping duties on [MACBs] under the [Orders], and thus, no 

lawful basis for Commerce to have directed Fengchi to report sales 

of [MACBs] in the administrative review.” Id. The court must 

reject this argument. The Fedmet litigation concerned the MACB

Scope Ruling. Fedmet, 755 F.3d at 914. In contrast, this case 

concerns Commerce’s ability to request information on products 

subject to a scope ruling during an administrative review and its 

imposition of AFA after Fengchi declined to comply with that 

request. Thus, the CAFC’s decision in Fedmet does not resolve the 

legal issues raised in the instant case.

I. Commerce’s Request for Information on Fengchi’s MACB Sales 

 The first issue before the court is whether Commerce 

properly requested that Fengchi provide information on its sales 

of MACBs during the review. As noted above, Fengchi declined to 
Court No. 13-00186 Page 9 

provide such information on the theory that Commerce’s request 

violated 19 C.F.R. § 351.225(l)(4). As a result of Fengchi’s 

refusal to provide information, Commerce imposed AFA. Plaintiffs 

claim that Commerce’s request was inconsistent with 19 C.F.R. § 

351.225(l)(4) because Commerce issued the scope ruling on MACBs 

245 days after the initiation of the review. Pls.’ Br. at 8.

Alternatively, Plaintiffs claim that even if Commerce’s 

interpretation of the regulation was proper, it was nevertheless 

impractical for Commerce to request that information so late in 

the review. Id. at 14–16. 

A. Commerce’s interpretation of 19 C.F.R. § 351.225(l)(4) 

was reasonable. 

 Under 19 C.F.R § 351.225(l)(4), where Commerce issues a 

scope ruling that a product is within the scope of an order within 

ninety days of the initiation of an administrative review of that 

same order, Commerce, “where practicable, will include sales of 

that product for purposes of the review and will seek information 

regarding such sales.” 19 C.F.R § 351.225(l)(4). However, where 

Commerce issues the scope ruling more than ninety days after the 

initiation of the administrative review, Commerce “may consider 

sales of the product for purposes of the review on the basis of 

non-adverse facts available.” Id. “However, notwithstanding the 

pendency of a scope inquiry, if [Commerce] considers it 

appropriate, [Commerce] may request information concerning the 
Court No. 13-00186 Page 10 

product that is the subject of the scope inquiry for purposes of 

a review . . . .” Id. 

 Here, Commerce issued the scope ruling on MACBs 245 days 

after initiating the administrative review at issue. See PRM at 

8. As noted above, Commerce requested information on Fengchi’s 

MACB sales shortly after issuing the scope ruling, see CR 46 at 3,

but Fengchi declined to provide the information, insisting that 

Commerce’s request was improper. See PR 104 at 1. Commerce 

insisted that its request was consistent with section 

351.225(l)(4) because the regulation does not prohibit Commerce 

from soliciting information on products that are subject to a scope

ruling issued over ninety days after the review begins. IDM at 4–

5. Rather, according to Commerce, the regulation permits Commerce 

to decline to collect information in such situations and instead 

consider sales of the product on the basis of non-adverse facts

available. Id. 

 Plaintiffs insist that Commerce’s reading of section 

351.225(l)(4) is unreasonable. Instead, Plaintiffs suggest that 

the regulation creates a “bright-line rule”: if the scope ruling 

is issued within ninety days of the initiation of the 

administrative review, then Commerce will request information on 

the product subject to that scope ruling if practicable, but if 

the scope ruling is issued more than ninety days after the 

initiation of the review, then Commerce may not request information
Court No. 13-00186 Page 11 

on the product and may only consider sales of the product based on 

non-adverse facts available. See Pls.’ Br. at 8–11. According to 

Plaintiffs, Commerce’s interpretation renders the ninety-day time 

limit, and therefore much of the regulation itself, “mere 

surplusage.” Id. at 13. Moreover, Plaintiffs insist that Commerce 

indicated that their reading of the regulation was proper during 

promulgation of the regulation, and in fact, acted in a manner

consistent with this interpretation in a prior administrative 

review. See id. at 11–14. 

 The court must reject Plaintiffs’ interpretation because 

it alters the plain meaning of the regulation. According to 

Plaintiffs, where Commerce issues a scope ruling more than ninety 

days after the initiation of an administrative review, Commerce 

may consider sales of the product for purposes of the review, “but 

only on the basis of non-adverse facts available.” Id. at 8 

(emphasis added). This “bright-line rule” reads the word “only” 

into the second sentence of the regulation. However, section 

351.225(l)(4) provides that in such situations, Commerce “may 

consider sales of the product for purposes of the review on the 

basis of non-adverse facts available.” 19 C.F.R. § 351.225(l)(4) 

(emphasis added). The language of the regulation is permissive 

and does not proscribe Commerce’s power to request information in 

the manner Plaintiffs suggest.
Court No. 13-00186 Page 12 

 Furthermore, Plaintiffs reliance on the regulatory 

history of section 351.225(l)(4) is misplaced. According to 

Plaintiffs, Commerce adopted their interpretation of section 

351.225(l)(4) at the preliminary rule making stage. Pls.’ Br. at 

10–12. In particular, Plaintiffs rely on Commerce’s comment that,

when a final scope ruling is issued more than ninety days after 

initiation of a review, it is “not practicable” to collect sales 

information and therefore Commerce “will rely on non-adverse facts 

available.” Id. at 11 (citing Antidumping Duties; Countervailing 

Duties: Proposed Rules, 61 Fed. Reg. 7308, 7322 (Feb. 27, 1996)).

However, Commerce clearly departed from this interpretation by the

final rule making stage. Commerce stated that section 

351.225(l)(4) “provides, among other things, that if [Commerce] 

determines after [ninety] days of the initiation of a review that 

a product is included within the scope of an order or suspended 

investigation, [Commerce] may decline to seek sales information 

concerning the product for purposes of the review.” Antidumping

Duties; Countervailing Duties: Final Rule, 62 Fed. Reg. 27,296, 

27,330 (May 19, 1997) (“Preamble”). Thus, at the final rulemaking 

stage, Commerce did not limit itself to reliance on non-adverse

facts available, but instead provided itself with flexibility to 

determine whether to collect information. See id.

 Plaintiffs also rely on two separate statements by 

Commerce at the final rule making stage to support its
Court No. 13-00186 Page 13 

interpretation. First, Plaintiffs note that Commerce rejected a 

request to extend the ninety-day period when it extends the 

deadline for the preliminary results of a review, indicating that 

Commerce did not intend to collect information where the scope

ruling is issued after the ninety-day period. See Pls.’ Br. at 

11. Plaintiffs misinterpret Commerce’s decision; Commerce 

rejected the request because it generally makes the decision to 

extend a deadline for the preliminary results of a review right 

before that deadline expires and well after the ninety-day period 

ends. Preamble, 62 Fed. Reg. at 27,330. Second, Plaintiffs note 

that Commerce rejected a suggestion that it collect information 

for a subsequent review when the scope ruling is issued after the 

ninety-day period. See Pls.’ Br. at 11–12. This decision also 

does not support Plaintiffs’ argument; Commerce rejected the 

suggestion because it was unwilling to collect information for a 

future review. Preamble, 62 Fed. Reg. at 27,330.

 Moreover, the prior administrative decision that

Plaintiffs cite does not support their position. Plaintiffs rely 

on Final Results of Antidumping Duty Administrative Review for Two 

Manufacturers/Exporters: Certain Preserved Mushrooms From the PRC,

65 Fed. Reg. 50,183 (Aug. 17, 2000). See Pls.’ Br. at 12. However,

in that case, Commerce issued the scope ruling within ninety days 

of initiating the review, and thus Commerce did not address the 

situation before the court in the instant case. Issues and 
Court No. 13-00186 Page 14 

Decision Memorandum for the Administrative Review of Certain 

Preserved Mushrooms from the PRC – May 7, 1998, through January

31, 2000; Final Results at comment 1 (Aug. 17, 2000). 

 Ultimately, Commerce’s interpretation of section 

351.225(l)(4) was consistent with the plain language of the 

regulation. Section 351.225(l)(4) does not proscribe Commerce’s 

power to collect information on a respondent’s sales of a product 

subject to a scope ruling issued over ninety-days after the 

initiation of the review, so long as it is practicable to do so. 

19 C.F.R. § 351.225. It does, however, permit Commerce to decline 

to collect such information and instead rely on non-adverse facts 

available. Id. Contrary to Plaintiffs’ argument, Commerce’s 

interpretation does not render any language in the regulation 

meaningless: if the scope ruling is issued within ninety-days of 

the initiation of the review, Commerce, where practicable, will 

collect information on the product subject to that scope ruling; 

if the scope ruling is issued more than ninety-days after the 

initiation of the review, Commerce may collect information on the 

product, if practicable, but may decline to consider the 

respondent’s information and rely instead on non-adverse facts 

available. See id. As discussed above, this interpretation is 

consistent with Commerce’s discussion of section 351.225(l)(4)

when promulgating the final rule. See Preamble, 62 Fed. Reg. at 

27,330. Because Commerce’s interpretation of the regulation was 
Court No. 13-00186 Page 15 

not plainly erroneous or inconsistent with the regulation, the 

court defers to Commerce’s reading of 19 C.F.R § 351.225(l)(4). 

See 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).

B. Commerce reasonably determined that it was practicable to 

request MACBs sales information. 

Having determined that Commerce’s interpretation of 

section 351.225(l)(4) was reasonable, the court now considers 

whether it was practicable for Commerce to request information on 

Fengchi’s MACBs sales. Plaintiffs insist that there was not 

sufficient time remaining in the review for Commerce to consider 

Fengchi’s sales of MACBs. Pls.’ Br. at 14–17. Specifically,

Plaintiffs argue that because consideration of its MACB sales data 

would require Commerce to modify the CONNUM5 product hierarchy,

surrogate country, and surrogate value data, there was not 

sufficient time remaining in the review. Id. at 15–16.

The court must reject Plaintiffs’ assertion because it

was practicable for Commerce to request information on Fengchi’s 

MACB sales in this proceeding. Here, Commerce requested that 

Fengchi provide information on its MACB sales on August 3, 2012,

CR 46 at 3, well before the October 1, 2012 deadline for its 

5 CONNUM stands for “control number,” which refers to a specific 

product.
Court No. 13-00186 Page 16 

preliminary determination. PRM at 3. Commerce repeatedly offered 

to extend the deadline for Fengchi to provide the requested

information, See, e.g., Letter to Fengchi re: First Antidumping 

Administrative Review of Certain MCBs from the PRC: Extension of 

Time for Supplemental Questionnaire, PR 111 at 1 (Aug. 24, 2012), 

but Fengchi declined to comply with Commerce’s request. See PR 

104; PR 106; PR 114. On September 7, 2012, Commerce offered 

Fengchi one final opportunity to comply, requesting that Fengchi 

either provide MACB sales information or submit a request for an 

extension by September 17, 2012. See PR 125 at 1–2. Once again, 

Fengchi declined to provide its MACB sales information. See Letter 

to Commerce re: Antidumping Order on Certain MCBs from the PRC: 

Antidumping Administrative Review (3/12/10-8/31/11), PR 130 at 1–

2 (Sept. 17, 2012). 

 Furthermore, the court does not find merit to 

Plaintiffs’ argument that Commerce would have to modify the CONNUM 

product hierarchy, surrogate country, and surrogate value data in 

order to consider information on Fengchi’s MACB sales. Commerce 

determined that MACBs were MCBs within the scope of the Orders,

and therefore it was unnecessary to modify CONNUM product 

hierarchy, surrogate country, and surrogate value data. See IDM 

at 8. Because it was practicable to consider Fengchi’s MACBs sales 
Court No. 13-00186 Page 17 

at the time of the MACB Scope Ruling, Commerce reasonably requested 

that data during the review.6 See 19 C.F.R. § 351.225(l)(4). 

II. Commerce’s Application of Adverse Facts Available 

 The next issue is whether Commerce properly relied on 

AFA when determining Fengchi’s dumping margin. As noted above, 

Commerce found that AFA was appropriate because Fengchi refused to 

provide information on its MACB sales.

Commerce may apply AFA where “an interested party has 

failed to cooperate by not acting to the best of its ability to 

comply with a request for information.” 19 U.S.C. § 1677e(b).

“Compliance with the ‘best of its ability’ standard is determined 

by assessing whether the respondent has put forth its maximum 

effort to provide Commerce with full and complete answers” to a 

request for information. Nippon Steel Corp. v. United States, 337 

F.3d 1373, 1382 (Fed. Cir. 2003). 

 Although Fengchi concedes that it did not provide 

information on its MACB sales, Plaintiffs argue that Commerce

erroneously applied AFA because the request itself was improper. 

See Pls.’ Br. at 18–21. As noted above, Plaintiffs insist that 

Commerce’s request for Fengchi’s MACB sales information violated 

6 Commerce also argues that it had the authority to request MACB 

sales information at “any time during the proceeding” pursuant 

to 19 C.F.R § 351.301(c)(2) (2012). Because Commerce properly 

requested MACB sales information under 19 C.F.R § 351.225(l)(4), 

the court declines to consider this alternative justification.

 
Court No. 13-00186 Page 18 

19 C.F.R. § 351.225(l)(4). Plaintiffs conclude that Commerce could 

not impose AFA based on Fengchi’s failure to comply with an 

inappropriate request for information. See Pls.’ Br. at 18. 

Plaintiffs rely on Laclede Steel Co. v. United States, 18 CIT 965 

(1994), where the Court overturned Commerce’s decision to impose 

AFA because Commerce’s request for information was improper. See 

Pls.’ Br. at 19 (citing Laclede Steel, 18 CIT at 973).

 Plaintiffs’ argument is unconvincing. As this court has 

already determined, Commerce’s request for Fengchi’s MACB sales 

information was proper. Accordingly, Plaintiffs’ reliance on 

Laclede Steel is misplaced. Ultimately, Fengchi’s refusal to 

provide information on its MACB sales demonstrated a failure to 

comply with Commerce’s request for information, and thus, Commerce 

reasonably applied AFA. See 19 U.S.C. § 1677e(b); Nippon Steel,

337 F.3d at 1382.

III. The Adverse Facts Available Rate 

 Having determined that Commerce properly relied on AFA 

to determine Fengchi’s dumping margin, the court now considers 

whether Commerce properly selected the petition rate of 236% as 

the AFA rate. Consistent with its practice, Commerce selected the 

petition rate as the AFA rate. See PRM at 10. 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-specific
Court No. 13-00186 Page 19 

margins of a cooperating respondent. See First Administrative 

Review of MCBs from the PRC: Corroboration Memorandum (Oct. 1, 

2012), CR 68 at 2–3 (unchanged in final). Commerce determined 

that the rate was relevant to Fengchi by comparing the CBP data 

for Fengchi’s five MACB sales with the data Commerce used to 

determine the petition rate. 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. 

 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 

commercial reality.” Gallant Ocean (Thailand) Co. v. United 
Court No. 13-00186 Page 20 

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 the AFA rate was unreasonable, 

overly punitive, and did not reflect commercial reality. Pls.’ 

Br. at 21–23. According to Plaintiffs, “Commerce never calculated 

the actual dumping margin . . . on Fengchi’s reported MCBs sales, 

electing instead to apply [AFA] to all of Fengchi’s sales of 

subject merchandise. . . .” Id. at 22. Plaintiffs conclude that 

“in selecting among possible AFA rates, Commerce blinded itself to 
Court No. 13-00186 Page 21 

Fengchi’s actual dumping margin on the MCB sales it had reported 

even as it ostensibly considered whether the AFA rate from the 

petition reflected commercial reality.” Id. at 22–23.

While the instant case was before the court, the Federal 

Circuit issued a decision in Fedmet Resources Corp. v. United 

States, 755 F.3d. 912, (Fed. Cir. 2014) (mandate issued on Feb. 4, 

2015), holding that certain MACBs from the PRC were outside the 

scope of the antidumping order. Fedmet, 755 F.3d at 922. As a 

consequence of the Federal Circuit’s holding in Fedmet, the court 

has become concerned with Commerce’s potentially unreasonable use 

of out of scope MACB sales to corroborate the AFA rate. Although 

the court requested that the parties provide it with supplemental 

briefing to address this issue, Commerce’s responses present post 

hoc rationalizations that do not bear on the reasonableness of the 

explanations set forth in the IDM. See Burlington Truck Lines, 

Inc. v. United States, 371 U.S. 156, 168-69 (1962) ("The courts 

may not accept . . . counsel's post hoc rationalizations for agency 

action; . . . an agency's discretionary order [must] be upheld, if 

at all, on the same basis articulated in the order by the agency 

itself."). Commerce does not appear to have considered the 

possibility that the entries it used to corroborate the AFA rate 

were of out-of-scope merchandise. Because the Federal Circuit’s 

decision in Fedmet may potentially affect the reasonableness of 

Commerce’s corroboration of the AFA rate, the court must remand so 
Court No. 13-00186 Page 22 

that Commerce has the opportunity to address this concern at the 

administrative level with the benefit of comment from Plaintiffs 

and Defendant-Intervenors. See SKF USA Inc. v. United States, 254 

F.3d 1022, 1028-29 (Fed. Cir. 2001) (“A remand is generally 

required if the intervening event may affect the validity of the 

agency action.”) (citing Ethyl Corp. v. Browner, 989 F.2d 522, 524 

(D.C. Cir. 1993)). 

IV. Conclusion and Order 

 Upon consideration of Plaintiffs’ motion for judgment on 

the agency record, Defendant’s and Defendant-Intervenors’

responses, Plaintiffs’ reply, and all papers and proceedings 

herein, and in accordance with the court’s opinion issued on this 

date, it is hereby 

 ORDERED that this case is remanded to Commerce for 

further explanations regarding the corroboration of the AFA rate 

in light of the Federal Circuit’s decision in Fedmet Resources 

Corp. v. United States, 755 F.3d. 912 (Fed. Cir. 2014); and it is 

further

 ORDERED that the Final Results is sustained for all other 

issues discussed above; and it is further 

 ORDERED that remand results are due within sixty (60) 

days of the date this opinion is entered. Any responses or 

comments are due within thirty (30) days thereafter. Any rebuttal 
Court No. 13-00186 Page 23 

comments are due within fifteen (15) days after the date responses 

or comments are due. 

SO ORDERED. 

 /s/ Nicholas Tsoucalas

Nicholas Tsoucalas

 Senior Judge

Dated:

New York, New York 

March 25, 2015