Slip Op. 24

Ȭ 43

UNITED STATES COURT OF INTERNATIONAL TRADE

YAMA RIBBONS AND BOWS CO., LTD.,

Plaintiff,

v.

UNITED STATES,

Defendant,

and

BERWICK OFFRAY LLC,

Defendant

Ȭ Intervenor. Before:ȱȱ Timothy C. Stanceu, Judge

Court No. 20

Ȭ 00059

OPINION AND ORDER

[Remanding a redetermination in a countervailing duty proceeding on narrow

woven ribbons with woven selvedge from the People’s Republic of China]

Dated: April 10, 2024

Brittney R. Powell

, Fox Rothschild LLP, of Washington, D.C., for plaintiff Yama

Ribbons and Bows Co., Ltd.ȱȱ With her on the briefs were Lizbeth R. Levinson and Ronald

M. Wisla

.

Kara M. Westercamp

, Trial Attorney, Commercial Litigation Branch, Civil

Division, U.S. Department of Justice, of Washington, D.C., for defendant.ȱȱ With her on

the brief were Brian M. Boynton

, Principal Deputy Assistant Attorney General and

Patricia M. McCarthy

, Director.ȱȱ Of counsel on the brief was Rachel A. Bogdan

, Attorney,

Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of

Commerce, of Washington, D.C.Court No. 20

Ȭ 00059ȱ ȱ Page 2

Daniel B. Pickard

, Buchanan Ingersoll and Rooney PC, of Washington D.C., for

defendant

Ȭ intervenor Berwick Offray LLC.ȱȱȱ

Stanceu, Judge: Plaintiff Yama Ribbons and Bows, Co., Ltd. (“Yama”) contested a

determination of the International Trade Administration, U.S. Department of

Commerce (“Commerce” or the “Department”) in a countervailing duty (“CVD”)

proceeding.ȱȱ The contested decision concluded the seventh periodic administrative

review (“seventh review”) of a countervailing duty order on narrow woven ribbons

with woven selvedge from the People’s Republic of China (“China” or the “PRC”).

Before the court is the Department’s “Remand Redetermination,” issued in

response to the court’s opinion and order in Yama Ribbons and Bows Co. v. United States

,

46 CIT

__, 611 F. Supp. 3d 1394 (2022) (“ Yama I ”).ȱȱ Final Results of Redetermination

Pursuant to Court Remand (Int’l Trade Admin. Feb. 15, 2023), ECF No. 48 (“ Remand

Redetermination ”).ȱȱ Yama opposes the Remand Redetermination.ȱȱ Because a finding in

the Remand Redetermination is not supported by evidence on the administrative record

of the seventh review, the court remands this decision to Commerce for reconsideration

and corrective action, as appropriate.

I.ȱȱ B ACKGROUND

Background for this case is presented in the court’s prior opinion and is

supplemented herein.ȱȱ Yama I

, 46 CIT at

__, 611 F. Supp. 3d at 1396—98.Court No. 20

Ȭ 00059ȱ ȱ Page 3

A.ȱȱ The Contested Determination

Commerce published the determination contested in this litigation (the “Final

Results”) as Narrow Woven Ribbons with Woven Selvedge From the People’s Republic of

China: Final Results of Countervailing Duty Administrative Review; 2017 85 Fed. Reg. 10,653

(Int’l Trade Admin. Feb. 25, 2020), (“ Final Results ”).ȱȱ Commerce incorporated by

reference an explanatory document, the “Final Issues and Decision Memorandum.”ȱȱ

Issues and Decision Memorandum for the Final Results of 2017 Countervailing Duty

Administrative Review: Narrow Woven Ribbons with Woven Selvedge from the People’s

Republic of China (Int’l Trade Admin. Feb. 19, 2020), P.R. Doc. 171 (“ Final I&D Mem. ”). 1ȱȱ

The seventh review of the countervailing duty order pertained to entries made during a

period of review (“POR”) of January 1, 2017 through December 31, 2017. 2

1 Documents in the Joint Appendix (Mar. 26, 2021), ECF Nos. 38 (conf.), 39

(public) are cited herein as “P.R. Doc. __.”ȱȱ All citations to record documents are to the

public versions.

2 The countervailing duty order was issued in 2010.ȱȱ Narrow Woven Ribbons With

Woven Selvedge From the People’s Republic of China: Countervailing Duty Order

,

75 Fed. Reg. 53,642 (Int’l Trade Admin. Sept. 1, 2010).ȱȱ Subject merchandise is defined

generally in the countervailing duty order as woven ribbons twelve centimeters or less

in width, and of any length, that are composed in whole or in part of man

Ȭ made fibers

and that have woven selvedge; some exclusions apply.ȱȱ Id

. at 53,642–43.ȱȱ The term

“selvedge” refers to “the edge on either side of a woven or flat

Ȭ knitted fabric so finished

as to prevent raveling.”ȱȱ Selvage or selvedge

, W EBSTER ’ S T HIRD N EW I NTERNATIONAL

D ICTIONARY U NABRIDGED (2002).Court No. 20

Ȭ 00059ȱ ȱ Page 4

In the Final Results, Commerce determined that Yama benefitted from 23

countervailable Chinese government programs and assigned Yama a total

countervailable subsidy rate of 31.87%.ȱȱ Yama I

, 46 CIT at

__, 611 F. Supp. 3d at 1397;

Final I&D Mem

. at 3–5.

B.ȱȱ Yama’s Claims in this Litigation

In a motion for judgment on the agency record brought under USCIT Rule 56.2,

Yama challenged the Department’s decisions to countervail three of the 23 programs

and the associated countervailing duty subsidy rates: “a rate of 10.54% for the Export

Buyer’s Credit Program (“EBCP” or “EBC Program”), which is an export

Ȭ promoting

loan program administered by the Export Import Bank of China; a rate of 17.76% for the

provision of synthetic yarn for less than adequate remuneration (“LTAR”); and a rate of

0.17% for the provision of caustic soda for LTAR.”ȱȱ Yama I

, 46 CIT at

__, 611 F. Supp. 3d

at 1398.ȱȱ For the derivation of all three of those subsidy rates, Commerce invoked its

authority to use “facts otherwise available” under section 776(a) of the Tariff Act of

1930, as amended (“Tariff Act”), 19 U.S.C. § 1677e(a), and “adverse inferences” under

section 776(b) of the Tariff Act, 19 U.S.C. § 1677e(b). 3ȱȱ When relying on both the “facts

otherwise available” and “adverse inference” provisions of the statute, Commerce uses

the term “adverse facts available” or “AFA.”ȱȱ Yama I

, 46 CIT at

__, 611 F. Supp. 3d

at 1399; Final I&D Mem

. at 2.

3 Citations to the United States Code are to the 2018 edition.Court No. 20

Ȭ 00059ȱ ȱ Page 5

In the Final Results, Commerce based its use of facts otherwise available on

findings that the government of the PRC withheld requested information; it found,

further, that adverse inferences were warranted because the Chinese government failed

to cooperate by not acting to the best of its ability to comply with the Department’s

information requests.ȱȱ Yama I

, 46 CIT at

__, 611 F. Supp. 3d at 1399—1400, 1404.ȱȱ

Commerce did not find that Yama itself withheld any information or failed to cooperate

to the best of its ability in responding to the Department’s questionnaires.

C.ȱȱ The Court’s Opinion in Yama I

In response to Yama’s Rule 56.2 motion, the court remanded the Final Results to

Commerce with directions to reconsider the 10.54% rate applied as an adverse inference

for the Export Buyer’s Credit Program.ȱȱ Yama I

, 46 CIT at

__, 611 F. Supp. 3d at 1405.ȱȱ

The court denied relief on Yama’s Rule 56.2 motion in all other respects.

D.ȱȱ The Remand Redetermination and Comment Submissions

In response to Yama I

, Commerce reconsidered the 10.54% rate it assigned for the

EBCP.ȱȱ Commerce again assigned this rate in the Remand Redetermination and

included an explanation of its revised reasoning.ȱȱ Yama opposed the Remand

Redetermination in a comment submission to the court.ȱȱ Pl.’s Comments in Opposition

to the Results of the Remand Redetermination (Mar. 17, 2023), ECF No. 50 (“Yama’s

Comments”).ȱȱ Defendant

Ȭ intervenor did not comment.ȱȱ Defendant replied to Yama’s

opposition, advocating that the court sustain the Remand Redetermination.ȱȱ Def.’sCourt No. 20

Ȭ 00059ȱ ȱ Page 6

Response to Comments on Remand Redetermination (Apr. 1, 2023), ECF No. 51 (“Def.’s

Resp.”).

II.ȱȱ D ISCUSSION

A.ȱȱ Jurisdiction and Standard of Review

The court exercises jurisdiction according to section 201 of the Customs Courts

Act of 1980, 28 U.S.C. § 1581(c), which grants this Court authority to review actions

commenced under section 516A of the Tariff Act, 19 U.S.C. § 1516a, including actions

contesting a final determination that Commerce issues to conclude an administrative

review of a countervailing duty order.ȱȱ Id

. § 1516a(a)(2)(B)(iii).

In reviewing a final determination, the 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.”ȱȱ Id

. § 1516a(b)(1).ȱȱ

Substantial evidence refers to “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.”ȱȱ SKF USA, Inc. v. United States

, 537 F.3d

1373, 1378 (Fed. Cir. 2008) (quoting Consol. Edison Co. v. NLRB

, 305 U.S. 197, 229 (1938)).

B.ȱȱ Prior Proceedings

With respect to the EBCP, Yama claimed in its Rule 56.2 motion that “Commerce

should not have imposed countervailing duties upon Yama’s exports for the EBCP” as

the record evidence demonstrated that “neither Yama nor its customers used this

program.”ȱȱ Yama I

, 46 CIT at

__, 611 F. Supp. 3d at 1400 (quoting Mem. of P. & A. inCourt No. 20

Ȭ 00059ȱ ȱ Page 7

Supp. of Pl.’s 56.2 Mot. for J. on the Agency R. 24–25 (Oct. 28, 2020), ECF No. 29

Ȭ 2

(“Pl.’s Br.”)).ȱȱ “In the alternative, Yama claims that the 10.54% subsidy rate that

Commerce

. . . attributed to the program was ‘extremely adverse, punitive and not

related to exports or this industry, or connected to the EBC.’”ȱȱ Id

.

Concerning the provision of synthetic yarn and caustic soda for LTAR, Yama

argued that Commerce improperly determined, through the use of facts otherwise

available and adverse inferences, that “each of the private companies which supplied

Yama with synthetic yarn and caustic soda is an ‘authority,’” i.e., a government or

public entity from which a countervailable subsidy may originate, as provided in

19 U.S.C. § 1677(5)(B).ȱȱ Id

., 46 CIT at

__, 611 F. Supp. 3d at 1404 (quoting Pl.’s Br. 9).

In Yama I

, the court determined that “Commerce acted lawfully in deciding that

the record before it, based on actual evidence and permissible adverse inferences,

allowed Yama to benefit from ‘programs’ allowing it to obtain the inputs [synthetic

yarn and caustic soda] for LTAR.”ȱȱ Id

., 46 CIT at

__, 611 F. Supp. 3d at 1405 (citation

omitted).ȱȱȱ

On the EBCP, Yama I held that “Commerce was within its authority in using an

adverse inference that Yama benefitted from the EBCP” during the POR.ȱȱ Id

., 46 CIT

at

__, 611 F. Supp. 3d at 1401.ȱȱ The court based its conclusion on the failure of the

Chinese government to respond to a request from Commerce that was specific to the

POR, i.e., calendar year 2017, and was worded as follows: “If you claim that noCourt No. 20

Ȭ 00059ȱ ȱ Page 8

customer of the respondent companies used buyer credits, please explain in detail the

steps the government took to determine that no customer used Export Buyer’s Credits.”ȱȱ

Id

. (quoting 2017 Administrative Review of the Countervailing Duty Order on Narrow Woven

Ribbons with Woven Selvedge from the People’s Republic of China: Countervailing Duty

Questionnaire at II

Ȭ 13 (Nov. 26, 2018), P.R. Doc. 4).ȱȱ Commerce used adverse inferences

regarding the EBCP because the government of China (the “GOC”), making no

meaningful attempt to comply with the Department’s information request, did not

provide any answers specific to the period of review and provided the same

questionnaire response it had provided Commerce in the prior review.ȱȱ Id

. (citing

Narrow Woven Ribbons with Woven Selvedge from the People’s Republic of China: GOC

Response (Feb. 19, 2019), P.R. Docs. 21, 23).

The court concluded in Yama I that “Commerce must be afforded discretion to

determine the scope of its inquiry in conducting reviews of countervailing duty orders,

so long as it does so reasonably” and that “[h]ere, it was reasonable for Commerce to

request information from the Chinese government to supplement and corroborate the

information Yama provided to show that neither Yama nor its U.S. customers used the

EBCP.”ȱȱ Id

.ȱȱ “But because the Chinese government made no effort to provide the

requested information as it related specifically to the period of review, Commerce was

within its authority in using an adverse inference that Yama benefitted from the EBCP

during that period.”ȱȱ Id

.ȱȱ The POR

Ȭ specific information Commerce requested from theCourt No. 20

Ȭ 00059ȱ ȱ Page 9

Chinese government “was missing from the record due to the failure of the Chinese

government to make even a minimal effort to assist Commerce in confirming that Yama

received no benefit from the EBCP during that year.”ȱȱ Id

., 46 CIT at

__, 611 F. Supp. 3d

at 1402.ȱȱ Upon providing Commerce only its answer to the Department’s questionnaire

in the prior review, the government of China informed Commerce that it would not

submit any further responses in the proceeding.ȱȱ Id

., 46 CIT at

__, 611 F. Supp. 3d

at 1400.ȱȱ The court recognized that the record contained information to support a

finding that neither Yama nor its customers used the EBCP during the POR but

reasoned that “Commerce was not required to consider that information determinative

in the particular situation this case presents.” 4ȱȱ Id

.ȱȱ “It was reasonable in that situation

for Commerce to consider the POR

Ȭ specific information it sought from the GOC—none

of which it obtained—to be essential to its inquiry.”ȱȱ Id

.

Although concluding that Commerce permissibly could use an adverse inference

that Yama benefitted from the EBCP, the court in Yama I remanded the Final Results to

Commerce upon concluding that Commerce, in selecting the 10.54% subsidy rate for the

EBCP as that adverse inference, had relied upon a finding unsupported by substantial

evidence on the record.ȱȱ The finding at issue was that a Chinese government program

4 Yama told the agency that it did not use the Export Buyers Credit Program

during the period of review and was informed by its customers that they had not used

the program either.ȱȱ Yama provided certifications of non

Ȭ use from only some of its

customers.ȱȱ Yama Ribbons and Bows Co. v. United States

, 46 CIT

__, 611 F. Supp. 3d 1394,

1401 (2022).Court No. 20

Ȭ 00059ȱ ȱ Page 10

for preferential lending to the coated paper industry, for which Commerce had

determined a subsidy rate of 10.54% in another countervailing duty proceeding, was

available to the woven ribbons industry, of which Yama was a part.ȱȱ The court directed

as follows:

On remand, Commerce must reconsider, in the entirety, its use of

the 10.54% rate as an adverse inference and explain why whatever rate it

decides to use is appropriate under 19 U.S.C. § 1677e(b) and is consistent

with the purpose of that statute, which, rather than to impose a rate that is

“punitive,” is to encourage interested parties to act to the best of their

ability to comply with the agency’s information requests.ȱȱ Commerce

must explain, specifically, why it considers the rate it chooses to be

appropriate for that purpose in the special case presented here, in which

an unreasonably high rate could unduly prejudice Yama, as the

“interested party” that was fully cooperative during the review.

Id

., 46 CIT at

__, 611 F. Supp. 3d at 1403.

C.ȱȱ The Remand Redetermination

The issue remaining to be decided is whether Commerce acted lawfully in again

assigning Yama, using facts otherwise available and an adverse inference, a

countervailable subsidy rate of 10.54% for the EBCP.ȱȱ This requires the court to

determine whether the assignment of this rate complies with the “adverse inference”

provisions in the Tariff Act, 19 U.S.C. § 1677e(b), and, specifically, whether the findings

Commerce made to support its conclusion under those provisions are supported by

substantial evidence on the record of the seventh review.

In the Remand Redetermination, Commerce described a methodology for

choosing an adverse inference rate that differed from the one it applied in the FinalCourt No. 20

Ȭ 00059ȱ ȱ Page 11

Results.ȱȱ For the Final Results, Commerce explained that “[c]onsistent with section

776(d) of the Act [19 U.S.C. § 1677e(d)] and our established practice, we select the

highest calculated rate for the same or similar program as AFA” and described a

“three

Ȭ step” methodology for selecting that rate.ȱȱ Yama I

, 46 CIT at

__, 611 F. Supp. 3d

at 1402—03 (citations and footnotes omitted).

As the first step in its methodology, Commerce stated that “[w]hen selecting

rates in an administrative review, we first determine if there is an identical program

from any segment of the proceeding and use the highest calculated rate for the identical

program (excluding de minimis rates).”ȱȱ Id

. at 1402.ȱȱ Where, as here, there was no such

identical program, Commerce described as its second step that it would “determine if

there is a similar/comparable program (based on the treatment of the benefit) within the

same proceeding and apply the highest calculated rate for the similar/comparable

program, excluding de minimis rates.”ȱȱ Id

.ȱȱ There having been no similar or comparable

program “within the same proceeding,” Commerce proceeded to its third step, stating

that “we apply the highest calculated rate from any non

Ȭ company specific program in

any CVD case involving the same country, but we do not use a rate from a program if the

industry in the proceeding cannot use that program .”ȱȱ Id

. at 1402—1403 (emphasis added).ȱȱ

Commerce explained that the 10.54% rate it chose was determined in “ Coated Paper fromCourt No. 20

Ȭ 00059ȱ ȱ Page 12

China ” for the “Preferential Lending to the Coated Paper Industry program.” 5ȱȱ Yama I

,

46 CIT at

__, 611 F. Supp. 3d at 1403 (citing Decision Memorandum for Preliminary Results

of 2017 Countervailing Duty Administrative Review: Narrow Woven Ribbons with Woven

Selvedge from the People’s Republic of China at 11 (Int’l Trade Admin. Aug. 5, 2019), P.R.

Doc. 110).

Based on the Department’s own description of its AFA rate selection

methodology, Yama argued in its Rule 56.2 motion that Commerce failed to

demonstrate that a loan program for the coated paper industry was available to the

woven ribbons industry, and the court agreed with this argument.ȱȱ Yama I

, 46 CIT at

__,

611 F. Supp. 3d at 1403.

In the Remand Redetermination, Commerce stated that it “reconsidered our

selection of the 10.54 percent subsidy rate,” Remand Redetermination at 3, and concluded

again “that the 10.54 percent AFA rate is appropriate.”ȱȱ Id

. at 5.ȱȱ Commerce explained

that it had “incorrectly described the steps of Commerce’s CVD AFA hierarchy” in the

Final Results “as having three steps.”ȱȱ Id

. at 3 (footnote omitted).ȱȱ “However,

5 “ Coated Paper from China ” is a reference to a separate, prior countervailing duty

proceeding.ȱȱ Yama Ribbons and Bows Co. v. United States

, 46 CIT

__, 611 F. Supp. 3d 1394,

1403 (2022) (citing Certain Coated Paper Suitable for High

Ȭ Quality Print Graphics Using

Sheet

Ȭ Fed Presses From the People’s Republic of China: Amended Final Affirmative

Countervailing Duty Determination and Countervailing Duty Order

, 75 Fed. Reg. 70,201

(Int’l Trade Admin. Nov. 17, 2010) (amending an earlier determination for ministerial

errors, Certain Coated Paper Suitable for High

Ȭ Quality Print Graphics Using Sheet

Ȭ Fed Presses

From the People’s Republic of China: Final Countervailing Duty Determination

, 75 Fed. Reg.

59,212 (Int’l Trade Admin. Sept. 27, 2010)).Court No. 20

Ȭ 00059ȱ ȱ Page 13

Commerce’s CVD AFA hierarchy is more accurately described as having four steps.”ȱȱ

Id

. (footnote omitted).ȱȱ The four

Ȭ step “hierarchy” it described was as follows:

Under the first step of Commerce’s CVD AFA hierarchy for

administrative reviews, Commerce applies the highest non

Ȭ de minimis

rate calculated for the identical program in any segment of the same

proceeding.ȱȱ If there is no identical program match within the same

proceeding, or if the rate is de minimis, under step two of the hierarchy,

Commerce applies the highest non

Ȭ de minimis rate calculated for a similar

program within any segment of the same proceeding.ȱȱ If there is no non

Ȭ de

minimis rate calculated for a similar program within the same proceeding, under

step three of the hierarchy, Commerce applies the highest non

Ȭ de minimis rate

calculated for an identical or similar program in another CVD proceeding

involving the same country.ȱȱ Finally, if there is no non

Ȭ de minimis rate

calculated for an identical or similar program in another CVD proceeding

involving the same country, under step four, Commerce applies the

highest calculated rate for any program from the same country that the

industry subject to the review could have used.

Id

. at 3—4 (emphasis supplied).ȱȱ Commerce explained, further, that as “we had not

previously calculated an above

Ȭ de minimis rate for the Export Buyer’s Credit program in

this proceeding,” it could not use step one of its methodology, and as “we found no

similar/comparable program within this proceeding without a de minimis rate,” it

could not use step two.ȱȱ Id

. at 4.ȱȱ Commerce instead relied on step three of its restated

hierarchy to determine an AFA rate for the EBCP based on its findings in the prior CVD

proceeding pertaining to a program for preferential lending to the Chinese coated paper

industry.ȱȱ Id

.

In the Remand Redetermination, Commerce reasoned that “only the fourth step”

of the Department’s AFA methodology “requires that Commerce use a programCourt No. 20

Ȭ 00059ȱ ȱ Page 14

available to the industry in the proceeding.”ȱȱ Id

. at 5.ȱȱ Because Commerce relied on the

third step of the methodology it described in the Remand Redetermination, it “has not

considered whether this program is available to the narrow woven ribbons with woven

selvedge (narrow woven ribbons) industry in China.”ȱȱ Id

.ȱȱ Thus, Commerce found it

sufficient, for the purpose of determining an AFA rate for the EBCP, that a “preferential

policy lending program in Coated Paper from China is similar to the Export Buyer’s

Credit program.”ȱȱ Id

. (citing Final I&D Mem

. at 28).ȱȱ Commerce, therefore, “continue[d]

to apply the 10.54 percent subsidy rate as AFA for the Export Buyer’s Credit Program”

and “made no changes to Yama’s overall subsidy rate presented in the Final Results ( i.e.

,

31.87 percent).”ȱȱ Id

. at 9.

D.ȱȱ Yama’s Objections to the Remand Redetermination

Yama raises two objections to the Remand Redetermination.ȱȱ It argues, first, that

Commerce “has not supported with substantial evidence on this record its finding that

the preferential policy lending program is similar to the EBCP.”ȱȱ Yama’s Comments 2.ȱȱ

Yama argues, second, that “Commerce applied essentially the same unsupported

rationale as before to justify the use of the punitive AFA rate to Yama Ribbons, a fully

cooperative respondent.”ȱȱ Id

. at 3.

1.ȱȱ Evidence Is Not on the Record to Support the Finding that the Preferential

Lending Program Cited in Coated Paper from China is Similar to the EBCP

With respect to its first objection, Yama argues that “in the issues and decision

memorandum for the Final Results, which is the only apparent support for its RemandCourt No. 20

Ȭ 00059ȱ ȱ Page 15

Results, Commerce does not cite to any evidence on the record of this proceeding

demonstrating that the preferential policy lending program is similar to the EBCP,” id

.

at 2—3, and that “[s]uch a failure ignores the Court’s explicit instructions in the

Remand Opinion.”ȱȱ Id

. at 3.ȱȱ Because the administrative record is insufficient to support

a comparative analysis of the EBCP with the coated paper lending program Commerce

cites, the court is persuaded by Yama’s first objection.

The Tariff Act, in 19 U.S.C. § 1677e(d), provides that when Commerce “uses an

inference that is adverse to the interests of a party under subsection (b)(1)(A) [19 U.S.C.

§ 1677e(b)(1)(A)] in selecting among the facts otherwise available,” Commerce may “use

a countervailable subsidy rate applied for the same or similar program in a

countervailing duty proceeding involving the same country,” id

. § 1677e(d)(1)(A)(i)

(emphasis added), or “if there is no same or similar program, use a countervailable

subsidy rate for a subsidy program from a proceeding that the administering authority

considers reasonable to use.”ȱȱ Id

. § 1677e(d)(1)(A)(ii).ȱȱ In the Remand Redetermination,

Commerce invoked only the first of these two subsections, § 1677e(d)(1)(A)(i).

In both the Final Results and the Remand Redetermination, Commerce found

that the preferential lending program identified in Coated Paper from China was similar

to the EBCP.ȱȱ In both, the Department’s finding of similarity was “based on the

treatment of the benefit because the credits function as short

Ȭ term or medium

Ȭ termCourt No. 20

Ȭ 00059ȱ ȱ Page 16

loans.”ȱȱ Final I&D Mem

. at 28 (footnote omitted); Remand Redetermination at 5 (footnote

omitted).

One problem in this case arises because the administrative record does not

support a finding that there is a coated paper lending program involving government

Ȭ

conferred credits that “function as short

Ȭ term or medium

Ȭ term loans” and in that

respect is similar to the EBCP.ȱȱ Yama does not contest that the record is sufficient to

show that the EBCP is a government program to promote Chinese industries through

the provision of loans with preferential interest rates.ȱȱ Pl.’s Br. 9—12 (detailing a

“statement of facts relevant to the EBC Program,” including that the EBCP is “an export

promoting loan program administered by the Export

Ȭ Import Bank of China”); Yama I

,

46 CIT at

__, 611 F. Supp. 3d at 1398—1400 (explaining that the EBCP is “an

export

Ȭ promoting loan program” that is “administered by the Export Import Bank of

China”); Final I&D Mem

. at 15 (describing the EBCP credits as “medium

Ȭȱ and long

Ȭ term

loans” with “preferential, low interest rates”) (citation omitted).ȱȱ Yama objects to the

insufficiency of the record of the seventh review to establish facts about a coated paper

lending program that would be needed to demonstrate similarity with the EBCP.

In referencing Coated Paper from China in both its Final Results, Final I&D Mem

.

at 28 n.133, and the Remand Redetermination, Remand Redetermination at 4 n.8,

Commerce cited the final determination and countervailing duty order published in the

Federal Register.ȱȱ Certain Coated Paper Suitable for High

Ȭ Quality Print Graphics UsingCourt No. 20

Ȭ 00059ȱ ȱ Page 17

Sheet

Ȭ Fed Presses From the People’s Republic of China: Amended Final Affirmative

Countervailing Duty Determination and Countervailing Duty Order

, 75 Fed. Reg. 70,201

(Int’l Trade Admin. Nov. 17, 2010).ȱȱ Neither contains a meaningful description of a

coated paper lending program.

A terse description of a coated paper lending program may be gleaned from the

issues and decision memorandum Commerce incorporated by reference into the final

determination for Coated Paper from China

.ȱȱ See Issues and Decision Memorandum for the

Final Determination in the Countervailing Duty Investigation of Certain Coated Paper Suitable

for High

Ȭ Quality Print Graphics Using Sheet

Ȭ Fed Presses from the People ȇ s Republic of China

at 11 (Int’l Trade Admin. Sept. 20, 2010).ȱȱ This public document, of which the court may

take judicial notice, describes a coated paper program as involving “Policy Loans to

Coated Paper Producers and Related Pulp Producers from State

Ȭ Owned Commercial

Banks and Government Policy Banks,” id

. at 11, but the evidentiary basis for that factual

finding is not present on the administrative record of the review at issue in this

litigation.ȱȱ Moreover, the issues and decision memorandum for Coated Paper from China

does not indicate that the terms of the credits provided under a coated paper program

necessarily were in the form of short

Ȭ term or medium

Ȭ term loans, as Commerce found.ȱȱ

Even were the issues and decision memorandum to have so stated, the supporting

record evidence is not available for the court’s review.Court No. 20

Ȭ 00059ȱ ȱ Page 18

A second problem in this case arises because, in the absence of any meaningful

record evidence about a coated paper lending program, the court cannot presume that,

had such evidence been placed on the record, it necessarily would not have included

evidence of ways in which these two “programs” may have been dis similar.ȱȱ Thus, any

presumption of similarity so as to satisfy the criterion of 19 U.S.C. § 1677e(d)(1)(A)(i)

would rest almost entirely on speculation.

Defendant does not offer a convincing response to Yama’s argument, Yama’s

Comments 2—3, that record evidence is lacking to demonstrate the claimed similarity.ȱȱ

Defendant argues that “the final results of Coated Paper from China ” describe the

preferential lending program as “a loan program from policy banks, as the title of the

program also reasonably suggests.”ȱȱ Def.’s Resp. 8—9 (citing Certain Coated Paper

Suitable For High–Quality Print Graphics Using Sheet–Fed Presses from the People’s Republic

of China: Preliminary Affirmative Countervailing Duty Determination and Alignment of Final

Countervailing Duty Determination with Final Antidumping Duty Determination 75 Fed.

Reg. 10,774 (Int’l Trade Admin. Mar. 9, 2010).ȱȱ The English

Ȭ language title of the cited

coated paper program is stated in the Federal Register documents as “Preferential

Lending to the Coated Paper Industry program”; see

, e.g.

, Certain Coated Paper Suitable

for High

Ȭ Quality Print Graphics Using Sheet

Ȭ Fed Presses From the People’s Republic of China:

Amended Final Affirmative Countervailing Duty Determination and Countervailing Duty

Order

, 75 Fed. Reg. 70,201 (Int’l Trade Admin. Nov. 17, 2010), but the court has no wayCourt No. 20

Ȭ 00059ȱ ȱ Page 19

of reviewing even so much as a finding that this was the official title and also lacks

essential information on how any such program operated.

In summary, the Department’s finding of similarity between the cited coated

paper program and the EBCP is not based on evidence present on the administrative

record of the seventh review.ȱȱ Under the “substantial evidence” element of the standard

of review, the court is, therefore, unable to conclude that the Department’s ultimate

determination of similarity would satisfy the requirement of 19 U.S.C.

§ 1677e(d)(1)(A)(i).ȱȱ See Camp v. Pitts

, 411 U.S. 138, 142 (1973) (stating that “the focal

point for judicial review should be the administrative record already in existence, not

some new record made initially in the reviewing court”).ȱȱ Commerce, therefore, must

reconsider its decision to use the references to a coated paper program as the basis for

an adverse inference subsidy rate.

2.ȱȱ The Court Defers Consideration of Yama’s Second Objection

For its second objection, Yama argues that Commerce failed in its obligation to

“justify the 10.54% AFA rate as appropriate in the ‘special case presented here, in which

an unreasonably high rate could unduly prejudice’ Yama Ribbons.”ȱȱ Yama’s

Comments 3 (quoting Yama I

, 46 CIT at

__, 611 F. Supp. 3d at 1403).ȱȱ Because Commerce

must reconsider its choice to use the references to a coated paper program with the

associated subsidy rate, the court defers consideration of Yama’s second objection

pending a response to the remand order the court is issuing.Court No. 20

Ȭ 00059ȱ ȱ Page 20

III.ȱȱ C ONCLUSION

For the reasons set forth in the foregoing, the court remands the Remand

Redetermination to Commerce for reconsideration in accordance with this Opinion and

Order.

Therefore, upon consideration of all papers and proceedings had herein, and

upon due deliberation, it is hereby

ORDERED that Commerce shall submit a new determination upon remand

(the “Second Remand Redetermination”) that complies with this Opinion and Order; it

is further

ORDERED that Commerce shall submit its Second Remand Redetermination

within 60 days of the date of this Opinion and Order; it is further

ORDERED that any comments by plaintiff or defendant

Ȭ intervenor on the

Second Remand Redetermination must be filed with the court no later than 30 days

after the filing of the Second Remand Redetermination; and it is further

ORDERED that defendant may file a response to comments within 15 days

after the filing of the last comment submission on the Second Remand

Redetermination.ȱȱȱȱȱȱȱ /s/ Timothy C. Stanceuȱȱȱȱȱȱȱ Timothy C. Stanceu

Judge

Dated: April 10, 2024ȱ ȱ New York, New York