Slip Op. 26-129
UNITED STATES COURT OF INTERNATIONAL TRADE
BAROQUE TIMBER INDUSTRIES
(ZHONGSHAN) CO., LTD. AND
RIVERSIDE PLYWOOD
CORPORATION,
Plaintiffs, Before: Timothy M. Reif, Judge
v. Court No. 23-00136
UNITED STATES,
Defendant.
OPINION AND ORDER
[Sustaining in part and remanding in part Commerce’s remand redetermination in the tenth administrative review of the countervailing duty order covering multilayered wood flooring from the People’s Republic of China.]
Dated: October 20, 2026
Andrew T. Schutz, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of Washington, D.C., argued for plaintiffs Baroque Timber Industries (Zhongshan) Co., Ltd. and Riverside Plywood Corporation. With him on the brief were Jordan C. Kahn and Michael S. Holton.
Brendan D. Jordan, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., argued for the United States. Also on the brief were Brett A. Shumate, Assistant Attorney General, Patricia M. McCarthy, Director and Tara K. Hogan, Assistant Director. Of counsel was JonZachary Forbes, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, D.C.
***
Court No. 23-00136 Page 2
Reif, Judge: Before the court are the remand results of the U.S. Department of
Commerce (“Commerce”) concerning the tenth administrative review of the
countervailing duty (“CVD”) order on multilayered wood flooring (“MLWF” or “subject
merchandise”) from the People’s Republic of China (“China”) for the period of review
(“POR”) January 1 through December 31, 2020. Final Results of Redetermination
Pursuant to Court Remand (“Remand Results”), ECF No. 48; see also Multilayered
Wood Flooring from the People's Republic of China: Final Results and Partial
Rescission of Countervailing Duty Administrative Review; 2020 (“Final Results”), 88
Fed. Reg. 34,828 (Dep't of Commerce May 31, 2023) and accompanying Issues and
Decision Memorandum (“IDM”) (Dep’t of Commerce May 24, 2023).
Baroque Timber Industries (Zhongshan) Co., Ltd., and Riverside Plywood
Corporation (collectively, “Baroque” or “plaintiffs”) 1 challenge certain aspects of the
Remand Results. Pls. Cmts. Opposing Remand Redetermination (“Pls. Br.”), ECF No.
59. Plaintiffs object specifically to the determinations of Commerce regarding: (1) the
calculation of the benchmark price for plywood; and (2) the use of adverse facts
available (“AFA”) to find that Baroque’s input suppliers are government authorities. See
id.
For the reasons discussed below, the court sustains in part and remands in part
the Remand Results.
BACKGROUND
The court presumes familiarity with the facts as set out in Baroque Timber
Industries (Zhongshan) Co. v. United States (“Baroque I”), 49 CIT __, __, 766 F. Supp.
1
Baroque Timber is a cross-owned affiliate of Riverside Plywood.
Court No. 23-00136 Page 3
3d 1296 (2025), and recounts only those facts relevant to the issues before the court on
remand.
On April 3, 2025, the Court concluded that Commerce did not explain
adequately: (1) Commerce’s determination to include the UN Comtrade data to
calculate the plywood benchmark; and (2) Commerce’s application of AFA to find
certain of Baroque’s input suppliers to be government authorities. See id. at __, 766 F.
Supp 3d at 1314.
On August 22, 2025, Commerce issued its draft remand redetermination and
provided interested parties with an opportunity to comment. Remand Results at 2. On
September 24, 2025, Commerce issued its final remand results. See id.
On February 2, 2026, plaintiffs filed their comments on the final remand results.
Pls. Br. On March 27, 2026, defendant United States filed its response to plaintiffs’
comments. Def. Cmts. Supporting Remand Redetermination (“Def. Br.”), ECF No. 63.
On July 8, 2026, the Court heard oral argument. Oral Arg. Tr., ECF No. 72.
JURISDICTION AND STANDARD OF REVIEW
28 U.S.C. § 1581(c) grants to this Court “exclusive jurisdiction of any civil action
commenced under section 516A or 517 of the Tariff Act of 1930.” The court exercises
jurisdiction pursuant to 28 U.S.C. §1581(c).
Section 516A of the Tariff Act of 1930 provides that in an action under 19 U.S.C.
§ 1516a(a)(2), the court will hold unlawful any determination, finding or conclusion that Court No. 23-00136 Page 4
is “unsupported by substantial evidence on the record, or otherwise not in accordance
with law.” 2 19 U.S.C. § 1516a(b)(1)(B)(i).
“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.”
Consol. Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229 (1938) (citations
omitted). “The substantiality of evidence must take into account whatever in the record
fairly detracts from its weight." Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488
(1951).
For a reviewing court to “fulfill [its] obligation” to determine whether a
determination of Commerce is supported by substantial evidence and in accordance
with law, Commerce is required to “examine the record and articulate a satisfactory
explanation for its action.” CS Wind Viet. Co. v. United States, 832 F.3d 1367, 1376
(Fed. Cir. 2016) (quoting Yangzhou Bestpak Gifts & Crafts Co. v. United States, 716
F.3d 1370, 1378 (Fed. Cir. 2013)).
Even so, the court will “uphold a decision of less than ideal clarity if the agency’s
path may reasonably be discerned.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974)); see also NMB Sing. Ltd. v. United
States, 557 F.3d 1316, 1319 (Fed. Cir. 2009) (“Commerce must explain the basis for its
decisions; while its explanations do not have to be perfect, the path of Commerce’s
decision must be reasonably discernable to a reviewing court.”).
2 Further citations to the Tariff Act of 1930, as amended, are to the relevant portions of
Title 19 of the U.S. Code, 2018 edition.
Court No. 23-00136 Page 5
“[T]he Court will not disturb an agency determination if its factual findings are
reasonable and supported by the record as a whole, even if there is some evidence that
detracts from the agency’s conclusion.” Shandong Huarong Gen. Corp. v. United
States, 25 CIT 834, 837, 159 F. Supp. 2d 714, 718 (2001), aff’d sub nom., Shandong
Huarong Gen. Grp. Corp. v. United States, 60 F. App’x 797 (Fed. Cir. 2003).
On remand, the Court will sustain Commerce’s determinations “if they are in
accordance with the remand order, are supported by substantial evidence, and are
otherwise in accordance with law.” MacLean-Fogg Co. v. United States, 39 CIT __, __,
100 F. Supp. 3d 1349, 1355 (2015).
DISCUSSION
I. Whether Commerce’s calculation of the benchmark for plywood is
supported by substantial evidence and otherwise in accordance with law
The court addresses first plaintiffs’ challenge to Commerce’s calculation of the
plywood benchmark. Plaintiffs challenge Commerce’s inclusion of non-grade specific
UN Comtrade data in Commerce’s tier two plywood benchmark calculation. See Pls. Br.
at 2-13.
A. Additional Background
In the Final Results, Commerce determined to calculate a benchmark price for
plywood by taking an average of two datasets in the record: a dataset from the
International Tropical Timber Organization (“ITTO”) containing plywood data from Brazil
and Peru and a global dataset from the United Nations Comtrade database containing Court No. 23-00136 Page 6
plywood from approximately 97 countries (“UN Comtrade”). 3 Remand Results at 25;
see also Baroque I, 766 F. Supp. 3d at 1302.
The plywood market is categorized into grades ranging from Grade A (highest
quality) through Grades B and C, to Grade D (lowest quality), and also includes hybrid
grades such as AA/BB or C/CC. The UN Comtrade data are not grade-specific,
meaning that they cover “multiple grades of plywood.” Remand Results at 11. The
ITTO dataset contains only Grade C/CC plywood export prices from Brazil and Peru
during the period of review. See Letter from Grunfeld, Desiderio, Lebowitz, Silverman,
& Klestadt LLP to Secretary of Commerce Pertaining to Riverside Plywood and Baroque
Benchmark Submission (Oct. 11, 2022), Ex. 2B, PR 291-295. The parties agree that
Baroque purchased only Grade C/D plywood in the manufacture of its subject
merchandise. See Remand Results at 11; see also Pls. Br. at 4 (confirming that
Baroque purchased only Grade C/D plywood during the period of review).
In Baroque I, this Court remanded to Commerce to explain adequately its
decision to include the UN Comtrade data in its plywood benchmark calculation in light
of “the information in the record demonstrating that the UN Comtrade data are
overbroad and, on that basis, may not be comparable for purposes of the plywood
benchmark calculation.” Baroque I, 766 F. Supp. 3d at 1304. Specifically, the Court
remanded for Commerce to “use solely the ITTO grade-specific data in its plywood
benchmark calculation or explain” why “inclusion of the UN Comtrade data [did] not
3 Commerce included also in its plywood benchmark calculation Stats.NZ export data.
See Remand Results at 25. In its briefing, plaintiffs refer to the UN Comtrade and the Stats.NZ data collectively as “UN Comtrade.” Pls. Br. at 2 n.1. The court does the same.
Court No. 23-00136 Page 7
produce a fatally distortive benchmark” and why a benchmark based solely on the ITTO
data would not satisfy “Commerce’s statutory and regulatory requirements.” Id. at 1306.
On remand, Commerce continued to calculate the tier two benchmark price for plywood
by taking an average of the UN Comtrade data and the ITTO data. See Remand
Results at 10-16.
B. Legal framework
A countervailing duty is “a remedial measure that provides relief to domestic
manufacturers by imposing duties upon imports of comparable foreign products that
have the benefit of a subsidy from the foreign government.” Fine Furniture (Shanghai)
Ltd. v. United States, 748 F.3d 1365, 1368 (Fed. Cir. 2014). The countervailing duty
imposed shall be “equal to the amount of the net countervailable subsidy.” 19 U.S.C. §
1671(a).
A subsidy is countervailable if: (1) a government or public authority has provided
a financial contribution; (2) a benefit is thereby conferred upon the recipient of the
financial contribution; and (3) the subsidy is specific to a foreign enterprise or foreign
industry, or a group of such enterprises or industries. 19 U.S.C. § 1677(5).
A benefit is conferred where “goods or services are provided for less than
adequate remuneration [‘LTAR’],” which is “determined in relation to prevailing market
conditions for the good . . . which is subject to the investigation or review.” Id. §
1677(5)(E)(iv). Prevailing market conditions include “price, quality, availability,
marketability, transportation, and other conditions of purchase or sale.” Id. To
determine whether goods were provided for less than adequate remuneration,
“Commerce must determine the proper benchmark price.” Essar Steel Ltd. v. United Court No. 23-00136 Page 8
States, 678 F.3d 1268, 1273 (Fed. Cir. 2012) (citing 19 C.F.R. § 351.511). The
benchmark price is “the price that could have constituted adequate remuneration.” Fine
Furniture, 748 F.3d at 1368.
To measure the adequacy of remuneration, Commerce “compares the
respondent’s reported costs for the input in question . . . with the calculated benchmark
price, which is representative of the market price for the good at issue.” Beijing Tianhai
Indus. Co. v. United States, 39 CIT __, __, 52 F. Supp. 3d 1351, 1356 n.9 (2015) (citing
Fine Furniture, 748 F.3d at 1368). Under 19 C.F.R. § 351.511(a)(2), Commerce sets
forth the “bases for identifying an appropriate market-based benchmark for measuring
the adequacy of the remuneration of a government provided good or service.” Id.
In order of preference, the potential benchmarks are as follows:
(1) market prices from actual transactions within the country under
investigation for the government-provided good (e.g., actual sales, actual
imports, or competitively run government auctions) (“tier one” benchmarks);
(2) world market prices that would be available to purchasers in the country
under investigation (“tier two” benchmarks); or (3) prices consistent with
market principles based on an assessment by the Department of the
government-set price (“tier three” benchmarks).
Id. (citing High Pressure Steel Cylinders from the People’s Republic of China, 76
Fed. Reg. 64,301, 64,304 (Dep't of Commerce Oct. 18, 2011)).
If there is no tier one benchmark—defined as a “useable market-determined
price with which to make the comparison”—then Commerce will calculate a tier two
benchmark that “measure[s] the adequacy of remuneration by comparing the
government price to a world market price where it is reasonable to conclude that such
price would be available to purchasers in the country in question.” 19 C.F.R. §
351.511(a)(2)(ii).
Court No. 23-00136 Page 9
In calculating a tier two benchmark, if “there is more than one commercially
available world market price,” Commerce is required to “average such prices to the
extent practicable, making due allowance for factors affecting comparability.” Id.
“These factors ensure that the composite benchmark reflects prevailing market
conditions in the [producer’s] home country. [The factors] include ‘price, quality,
availability, marketability, transportation, and other conditions of purchase or sale.’”
RZBC Grp. Shareholding Co. v. United States, 39 CIT __, __, 100 F. Supp. 3d 1288,
1305 (2015) (citing 19 U.S.C. § 1677(5)(E)).
“The court’s role is not to assess whether the benchmark data Commerce used
was [sic] the ‘best available,’ but rather whether Commerce's choice was reasonable.”
Guizhou Tyre Co. v. United States, 42 CIT __, __, 348 F. Supp. 3d 1261, 1274 (2018)
(citing Peer Bearing Company-Changshan v. United States, 27 CIT 1763, 1770, 298 F.
Supp. 2d 1328, 1336 (2003)).
C. Analysis
For the reasons discussed below, the court concludes that Commerce's decision
to average the UN Comtrade and ITTO data in calculating the plywood benchmark is
supported by substantial evidence and otherwise in accordance with law.
In the Remand Results, Commerce continued to calculate the tier two benchmark
price for plywood by taking an average of the UN Comtrade data—which included all
grades of plywood—and the ITTO data—which included grade C/CC plywood only. See
Remand Results at 10-16. Commerce determined that “the record evidence does not
support a conclusion that the [UN Comtrade] data result in a distortion of the benchmark
price applied to Baroque’s purchases.” Id. at 11-12. Commerce determined also that Court No. 23-00136 Page 10
the UN Comtrade data are “sufficiently comparable” to Baroque’s purchases and
appropriate for use as a benchmark. Id. at 26.
Plaintiffs present two arguments that Commerce should have selected only the
ITTO data for the plywood benchmark calculation, rather than averaging the ITTO and
the UN Comtrade data. Pls. Br. at 3-13. First, plaintiffs argue that Commerce’s
determination “ignore[d] the price distortion caused” by the particular grades included in
the benchmark. Id.. at 11. Second, plaintiffs assert that Commerce failed to make “due
allowance for factors affecting comparability” when averaging the UN Comtrade and
ITTO datasets. Id. at 5 (citing 19 C.F.R. § 351.511(a)(2)). The court addresses each
argument in turn.
1. Commerce’s decision to include the UN Comtrade data is
based on substantial evidence
Commerce in the Remand Results acknowledged the impact of grade on price,
Remand Results at 15, but found: the “record evidence does not support a conclusion
that the UN Comtrade [benchmark] data result in a distortion of the benchmark price
applied to Baroque’s purchases.” Id. at 11-12. Commerce provided three reasons for
this conclusion. Id. at 10-15, 21-28.
First, Commerce noted that the record demonstrates that “species, as well as
grade, impacts plywood prices.” Id. at 15. Second, Commerce determined that,
although grade affects plywood prices, “the evidence does not indicate the magnitude of
the effect of grade on price,” id. at 28, and record evidence suggested that differences in
price based on grade were “relatively minor.” Id. Finally, Commerce determined that,
absent evidence regarding the exact grade composition of the UN Comtrade data, Court No. 23-00136 Page 11
Commerce could not conclude that any price difference between the UN Comtrade data
and Baroque’s plywood purchases was attributable entirely to grade. Id. at 12, 23.
“The court’s role is not to assess whether the benchmark data Commerce used
was [sic] the ‘best available,’ but rather whether Commerce's choice was reasonable.”
Guizhou Tyre, 348 F. Supp. 3d at 1274. The court declines to substitute its judgment for
that of Commerce. Accordingly, Commerce’s decision to include the UN Comtrade data
in the benchmark calculation is based on substantial evidence.
2. Commerce’s decision to include the UN Comtrade data is not
contrary to law
Next, plaintiffs argue that, instead of averaging the UN Comtrade and ITTO data,
Commerce should have relied exclusively on the ITTO data because that dataset is
more product-specific to Baroque's purchases. See Pls. Br. at 9. Plaintiffs maintain that
the ITTO data, which cover grades B through C plywood, see Remand Results at 13,
are more “specific” to Baroque's C/D-grade plywood purchases, see Pls. Br. at 9;
Remand Results at 12, than the UN Comtrade data, which include all plywood grades.
Remand Results at 9-12. Defendant asserts that Commerce is not required to select a
“most comparable” dataset simply “because there is another dataset available.” Def. Br.
at 8. Defendant maintains also that, “[e]ven so, Commerce reasonably considered
record evidence and found that the UN Comtrade data was [sic] not necessarily less
comparable than the ITTO data.” Id.
The statute provides clear guidance on how to determine a tier two benchmark.
First, as a threshold matter, Commerce is required to identify whether there is more than
one commercially available world market price in the record. To do so, Commerce
“considers the similarity of the purchases in the benchmark information to the purchases Court No. 23-00136 Page 12
in question,” Remand Results at 25, by considering “prevailing market conditions” such
as “price” and “quality.” 19 U.S.C. § 1677(5)(E)(iv)).
With respect to this first step, Commerce expressly considered the factors
affecting comparability—including “‘price, quality, availability, marketability,
transportation, and other conditions of purchase or sale,’” RZBC Grp. Shareholding Co.,
100 F. Supp. 3d at 1305 (citing 19 U.S.C. § 1677(5)(E))—and determined that the UN
Comtrade data were “arguably more comparable to Baroque's reported purchases” than
the ITTO data in certain respects. Remand Results at 14. For example, Commerce
determined that species of wood affects both price and quality and that the UN
Comtrade data were more species-specific than the ITTO data to Baroque's reported
plywood purchases. Id. at 15 (“none of the [ITTO] data are [sic] for plywood made of
eucalyptus, which is the species of Baroque’s reported plywood purchases”).
Commerce added that while both species and grade affect price, the record did not
establish the “magnitude” or composition of the alleged grade distortion, see id. at 28,
whereas the species mismatch in the ITTO data was concrete. Id. at 15 (emphasis
supplied). Commerce also noted that the relevant data shared the same HS
subheading with Baroque’s plywood purchases. Id. at 25.
Finally, the regulation provides that if there is more than one available world
market price, Commerce “will average such prices to the extent practicable, making due
allowance for factors affecting comparability.” 19 C.F.R. § 351.511(a)(2)(ii). Commerce
took this step. For the aforementioned reasons, Commerce’s decision is not contrary to
law and the court sustains Commerce’s benchmark calculation for plywood. Court No. 23-00136 Page 13
III. Whether Commerce’s application of AFA to find certain of Baroque’s input
suppliers to be government authorities was supported by substantial
evidence and otherwise in accordance with law
A. Additional background
The court addresses next plaintiffs’ challenge to Commerce’s application of AFA
to find certain of Baroque’s input suppliers to be government authorities.
On Remand, Commerce continued to find that the Government of China (“GOC”)
did not act to the best of its ability in responding to Commerce’s requests for information
about the ownership of the companies that produced and supplied inputs to Baroque.
Specifically, plaintiffs argue that Commerce's application of AFA was unlawful because:
(1) Commerce did not explain adequately its determinations that the GOC withheld
responsive government documentation and failed to cooperate to the best of its ability;
and (2) Commerce failed to explain adequately why the withheld government
documentation—rather than other available non-government information—was required
such that it was appropriate for Commerce to apply AFA to a cooperating respondent.
See Pls. Br. 13-20.
For the reasons set forth below, the court concludes that Commerce determined
reasonably that the GOC failed to provide the requested information regarding whether
certain of Baroque's input suppliers are government authorities. The court concludes,
however, that Commerce did not explain adequately why available non-government
information could not fill the resulting gap before applying AFA against plaintiffs.
Accordingly, the court remands to Commerce to take the actions as set forth below. Court No. 23-00136 Page 14
1. Administrative proceeding and final results
On March 14, 2022, Commerce issued the GOC an initial questionnaire for the
2020 countervailing duty review. See Letter from U.S. Department of Commerce to
Embassy of the People's Republic of China Pertaining to Government of China's Initial
Questionnaire (Mar. 14, 2022) (“Initial Questionnaire”), PR 65. In the Initial
Questionnaire, Commerce asked the GOC for certain records to determine whether
Baroque’s input suppliers are government authorities. Id. Commerce asked the GOC
to “identify any individual owners, members of the board of directors, or senior
managers who were Government or CCP officials during the POR.” Id. at II-37.
Commerce noted that “these questions do not pertain to general membership in the
CCP.” Id. Commerce requested also certain other records that would demonstrate the
input suppliers were free from government influence. See id.
On May 11, 2022, the GOC submitted its response to Commerce’s Initial
Questionnaire. See Response from DeKieffer & Horgan to Secretary of Commerce
Pertaining to Government of China's Section II Questionnaire Response (May 11, 2022)
(“GOC Initial Questionnaire Response”), CR 35-54, PR 93-102. In its response, the
GOC provided Commerce “company-specific information” for sixteen input suppliers,
including “articles of incorporation, capital verification reports, company by-laws,
business licenses, and financial statements.” IDM at 32. The GOC provided also Court No. 23-00136 Page 15
“certifications” from the input suppliers that read:
All decisions and operations of the company are made independently, internally by
the company, and not subject to any external interference by any third-party
organizations, institutions, individuals, etc. Even If [sic] the company has
established the primary [P]arty organization, the [P]arty organization does not
participate in the company's daily operation and management. Even if the
company's shareholders, directors, managers and other senior managers are the
representatives of the People's Congresses and the CPPCC at all levels, their
status will not affect the company's internal operation and management.
See GOC Initial Questionnaire Response, Ex. LTAR 2.
On June 23, 2022, Commerce issued the GOC a supplemental questionnaire in
which it repeated the request for the GOC to “identify which owners, managers, and
directors, were Chinese government or CCP officials during the POR.” U.S. Department
of Commerce to DeKieffer & Horgan Pertaining to Government of China's Supplemental
Questionnaire (June 23, 2022) (“Supplemental Questionnaire”) at 7, CR 70, PR 119.
On July 14, 2022, the GOC provided its response to Commerce’s supplemental
questionnaire. See Response from DeKieffer & Horgan to Secretary of Commerce
Pertaining to Government of China Supplemental Questionnaire Response (July 14,
2022) (“GOC Supplemental Questionnaire Response”), CR 73-77, PR 227. In the
GOC’s response, the GOC stated that it had “confirmed that, for those companies that
the GOC was able to collect and submit requested documents . . . all of the owners,
directors or managers were not Chinese Government or CCP officials during the [period
of review].” Id. at 10.
2. Baroque I
In Baroque I, this Court held that “Commerce determined reasonably that
necessary information was missing from the record” because the GOC failed to provide Court No. 23-00136 Page 16
information needed to assess whether certain of Baroque’s input suppliers are
government authorities. 766 F. Supp. 3d at 1309-11. The Court upheld Commerce’s
determination for two reasons.
First, the Court determined that Commerce explained adequately why the
“certifications” provided by the input suppliers denying GOC or CCP involvement were
insufficient. Id. at 1309-10. Specifically, the Court concluded that Commerce
determined reasonably that the company “certifications” did not definitively deny GOC
or CCP involvement and that the “internal company statements” and “verbal
affirmations” offered to support the suppliers’ independence from GOC or CCP control
were insufficient to substantiate those certifications. Id. at 1310-11. Second, the Court
determined that Commerce explained adequately why supporting government
documentation was necessary in light of Commerce’s statement that “Chinese law Court No. 23-00136 Page 17
requires the establishment of CCP organizations in all companies.” Id. at 1310 (quoting
IDM at 57). 4
However, the Court held that Commerce’s application of AFA to find that certain
of Baroque’s input suppliers are government authorities was not in accordance with law
because Commerce did not provide the GOC with “adequate notice and an opportunity
to remedy its deficient responses, as required by 19 U.S.C. § 1677m(d).” Id. at 1311.
Therefore, the Court remanded for Commerce to:
(1) identify with specificity the deficiencies in the GOC’s initial or supplemental
responses to the nine entities, CCP officials and other related questions; (2)
describe clearly the nature of each deficiency and what information could correct
that deficiency; (3) if Commerce continues to determine that supporting
4 In the IDM Commerce cites Certain Metal Lockers and Parts Thereof from the
People's Republic of China: Final Affirmative Countervailing Duty Determination, 86 Fed. Reg. 35,741 (Dep't of Commerce July 7, 2021) and accompanying IDM (Dep't of Commerce June 28, 2021) at cmt. 5 (“Metal Lockers”), in support of its statement that Chinese law “requires” the establishment of CCP organizations in all companies. See IDM at 57. Metal Lockers, in turn, cites a 2012 memorandum for that proposition. See Metal Lockers at cmt. 5 (citing Section 129 Determination of the Countervailing Duty Investigation of Circular Welded Carbon Quality Steel Pipe; Light-Walled Rectangular Pipe and Tube; Laminated Woven Sacks; and Off-the-Road Tires from the People’s Republic of China: An Analysis of Public Bodies in the People’s Republic of China in Accordance with the WTO Appellate Body’s Findings in WTO DS379,” dated May 18, 2012 (“2012 Public Bodies Memo”). The 2012 Public Bodies Memo, however, describes the 2006 Company Law inconsistently on this point. See 2012 Public Bodies Memo at 33-37. At one point, the Memo states that “[t]he 2006 Company Law . . . states that an organization of CCP shall be set up in all companies.” Id. at 35 (citing Article 19 of the 2006 Company Law) (emphasis supplied). Elsewhere, however, the Memo quotes Article 19 of the 2006 Company Law as providing that the CCP “may, according to the Constitution of the Chinese Communist Party, establish its branches in companies,” and characterizes Article 19 as affirming the Party’s “right” to establish Party committees in public and private enterprises. Id. at 9, 33 & n.140. Accordingly, on remand, Commerce shall: (1) clarify whether Article 19 requires the establishment of a CCP organization in every company or instead permits the CCP to establish such an organization; and (2) explain the extent to which the difference between these two interpretations of the Chinese legal instrument affects the ability of Commerce to rely upon the representations presented by the GOC in this case.
Court No. 23-00136 Page 18
government documentation is necessary information, request that information
explicitly from the GOC; and (4) provide the GOC an opportunity to remedy any
specified deficiencies.
Id. at 1314.
3. Remand proceeding and remand results
On June 24, 2025, Commerce issued the GOC a remand questionnaire
regarding 16 of Baroque’s input suppliers that had provided “certifications.” 2020
Countervailing Duty Administrative Review of Multilayered Wood Flooring from the
People’s Republic of China: Supplemental Questionnaire Pursuant to Ct. Remand
(“Remand Questionnaire”) (June 24, 2025) at 4-5, PRR 1.
Question 1 of the Remand Questionnaire asked for “government documentation,
such as CCP records, supporting the GOC’s claim that no individual owners, members
of the board of directors, or senior managers were Government or CCP officials during
the POR.” Id. at 5. Question 3 of the Remand Questionnaire asked the GOC to
provide, for each input supplier: (1) “documentation to establish how they confirmed
none of their senior staff were members of the CCP”; and (2) “published biographies in
2020 of all senior staff members of each input producer, including, but not limited to
executive directors, managing directors, etc.” Id. at 5-6.
On July 11, 2025, the GOC provided its remand questionnaire response to
Commerce. See Response from The Inter-Global Trade Law Group PLLC, Government
of China Remand Supplemental Questionnaire (“GOC Remand Questionnaire
Response”) (July 11, 2025), PRR 8.
In response to Question 1—the request for “government documentation”
confirming that “no individual owners, members of the board of directors, or senior Court No. 23-00136 Page 19
managers . . . were Government or CCP officials during the POR”—the GOC stated that
it had “no central governmental database to search for the requested information” and
that the GOC’s “commerce administration does not require companies to provide such
government information.” Id. at 4. Therefore, the GOC stated that it could not “provide
the government documentation as requested by the Department.” Id. Instead of
government documentation, the GOC submitted “certifications” from 10 of those 16
input suppliers denying the existence of a CCP primary Party organization within their
companies. See id. Ex. RSQ-2. Those 10 “certifications” stated that “the number of
[P]arty members [in the company] is less than three” and that, accordingly, “there is no
primary Party organization within the company.” See id. Ex. RSQ-2.
In response to the first request in Question 3—the request for “documentation to
establish how [each input supplier] confirmed none of their senior staff were members of
the CCP”—the GOC stated that “[o]nce a new employee was hired, the personal
information of the employees, including whether they are CCP members, would
normally be provided to the Human Resources department of the company.” GOC
Remand Questionnaire at 9. In response to the second request in Question 3—the
request for the “published biographies in 2020 of all senior staff members of each input
producer”—the GOC collected resumes from only seven of the 16 input suppliers. Id. at
9; see also id. at Ex. RSQ-2.
Of the remaining nine input suppliers that did not provide biographies, one input
supplier provided photocopies of the identification cards of the supplier’s upper-level
officials in an attempt to demonstrate that none was a Chinese national. See id. at Ex.
RSQ-2. Two input suppliers responded stating that their companies had gone out of Court No. 23-00136 Page 20
business and no longer had access to the requested information. 5 Id. Instead, those
suppliers provided signed declarations stating that: “None of the executives such as
individual shareholders, executive directors and managers of the Company was the
officers [sic] of the Communist Party of China, National People’s Congress, Chinese
People’s Political Consultative Conference or the government.” Id. And the GOC did
not provide responses from the remaining six input suppliers. 6 See id. The GOC
submission does not state whether the GOC (a) did not seek responses from these
companies, (b) sought but did not receive responses, or (c) sought and received
responses, but chose not to submit them to Commerce. Id.
On September 25, 2025, Commerce issued its Remand Results. In the Remand
Results, Commerce continued to apply facts otherwise available with an adverse
inference to find “that CCP officials are present in each of Baroque’s privately-owned
input producers as individual owners, managers, and members of the boards of
directors, and that this gives the CCP, as the Government, meaningful control over the
companies and their resources.” Remand Results at 37-38.
5 One company said it was terminated in 2024.GOC Remand Questionnaire
Response, Ex. RSQ-2. Another said it was terminated on June 1, 2025. Id. 6 Missing from the remand record are either responses from, or evidence of a failed
attempt by the GOC to reach out to the remaining three suppliers. See id. at Ex. RSQ2.
Court No. 23-00136 Page 21
B. Analysis
1. Whether Commerce determined reasonably that the GOC withheld
requested information and failed to cooperate to the best of its
ability
a. Legal framework
A countervailable subsidy may be found where the entity providing the subsidy is
an “authority.” 19 U.S.C. § 1677(5)(B). An “authority” is defined as “a government of a
country or any public entity within the territory of the country.” Id.
Commerce may make determinations on the basis of the facts otherwise
available whenever “necessary information is not available on the record” or “an
interested party or any other person”: (1) withholds information requested by
Commerce; (2) fails to submit such information on time or in the form and manner
requested by Commerce; (3) significantly impedes the proceedings; or (4) provides
information that Commerce is unable to verify. 19 U.S.C. § 1677e(a); see also 19
C.F.R. § 351.308(a).
In selecting from facts otherwise available, Commerce may use an inference that
is adverse to the interests of a party “if [that] 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)(1)(A); see also 19 C.F.R. § 351.308(c). A respondent's failure to cooperate to
“the best of its ability” is determined by “assessing whether [the] respondent has put
forth its maximum effort to provide Commerce with full and complete answers to all
inquiries in an investigation.” Nippon Steel Corp. v. United States, 337 F.3d 1373, 1382
(Fed. Cir. 2003).
Court No. 23-00136 Page 22
b. Application of legal framework
The court addresses first whether Commerce determined reasonably that the
GOC: (1) withheld requested government information as to whether any of the input
suppliers’ “owners, members of the board of directors or managers” are GOC or CCP
officials; and (2) failed to cooperate to the best of its ability in responding to Commerce’s
request.
In Baroque I, the Court determined that it was reasonable for Commerce to
decide to rely on government documentation to make the finding noted above. See 766
F. Supp. 3d. at 1309-11. However, in that proceeding, plaintiffs argued that Commerce
had failed to provide the GOC with notice and an opportunity to remedy its deficient
responses, as required by 19 U.S.C. § 1677m(d), by not explicitly requesting such
government documentation. Id. at 1311-14. The Court noted that “Commerce’s
questionnaires did not specifically request government documentation,” id. at 1313, and
determined that Commerce failed to provide the GOC with adequate notice that
Commerce sought supporting government documentation demonstrating that the input
suppliers’ owners, directors and senior managers are not government officials. Id. at
1314.
On remand, Commerce followed the Court’s instruction and explicitly requested
supporting government documentation from the GOC. See Remand Questionnaire at 5.
In response, the GOC failed to provide any government documentation. GOC Remand
Questionnaire Response at 4. In the Remand Results, Commerce determined that the
GOC withheld the requested government documentation and “failed to cooperate by not
acting to the best of its ability to comply with this request for information.” Remand Court No. 23-00136 Page 23
Results at 20. Therefore, pursuant to 19 U.S.C. § 1677e(b)(1)(A), Commerce continued
to apply AFA to find that “CCP officials are present in each of Baroque’s privately-owned
input producers as individual owners, managers, and members of the boards of
directors, and that this gives the CCP, as the Government, meaningful control over the
companies and their resources.” Remand Results at 37-38.
Plaintiffs argue that the GOC did not withhold responsive government records
because such records do not exist. Pls. Br. at 19-20. In support, plaintiffs cite only to
the GOC’s assertion that it does not maintain a “central membership database” of GOC
or CCP officials and the GOC’s subsequent provision of certain limited information from
private companies that the GOC had obtained. Id. at 19. Commerce first noted that its
request was not limited to a “central governmental database,” which was all that the
GOC alleged that it did not have. Remand Results at 19. Commerce noted specifically
that it “did not limit the scope of its question” so that the GOC could provide whatever
documentation that “best support[ed] its claim.” Id. (citing Remand Questionnaire at 4).
Indeed, Commerce underscored in its Remand Results that its request to the GOC was
“intentionally open-ended.” Id. at 34.
Notwithstanding Commerce’s efforts to elicit any responsive information, the
GOC “did not suggest any alternative form in which it could provide the requested
government documentation,” including records maintained at the “provincial or any other
level of government.” Id. at 19. Commerce noted that the GOC’s response “implies that
the CCP, at all levels, maintains no records or any other mechanism” for determining
whether company officials are affiliated with the CCP. Id. at 20. Commerce added:
“[g]iven that the CCP Constitution requires that all organizations with enough CCP Court No. 23-00136 Page 24
members form primary [P]arty organizations, it strains credulity that the CCP has no
records with which it can track whether this requirement is followed.” Id. at 36 (citing
Section 129 Determination of the Countervailing Duty Investigation of Circular Welded
Carbon Quality Steel Pipe; Light-Walled Rectangular Pipe and Tube; Laminated Woven
Sacks; and Off-the-Road Tires from the People’s Republic of China: An Analysis of
Public Bodies in the People’s Republic of China in Accordance with the WTO Appellate
Body’s Findings in WTO DS379, dated May 18, 2012 (“2012 Public Bodies Memo”)).
Commerce cited also the GOC’s response in a prior proceeding to support
Commerce’s conclusion that the CCP and the GOC maintain records concerning CCP
members and GOC officials. Commerce noted that in Citric Acid and Certain Citrate
Salts from the People’s Republic of China: Final Results of Countervailing Duty
Administrative Review; 2012, the GOC provided “documentation from the government,
including the CCP importantly, that attests to its records of officials.” Id. (citing Citric
Acid and Certain Citrate Salts from the People’s Republic of China: Final Results of
Countervailing Duty Administrative Review; 2012, 79 Fed. Reg. 78,799 (Dep’t of
Commerce December 31, 2014), and accompanying IDM (Dep't of Commerce Dec. 22,
2014) at cmt. 2 (“Citric Acid”)); see also IDM at 58 (citing Citric Acid at cmt. 2). 7
7 In Citric Acid, the GOC submitted “a certified letter from the CCP Committee of the
village indicating” that the owner of the input suppliers was not the Secretary for the Party Committee during the POR and “established at verification through official government documentation provided by the GOC and the CCP” that the owner of the input suppliers did not serve as Secretary for the Party during the POR. Citric Acid at cmt. 2. This government documentation included “stamped originals of an election notification from the CCP Committee” of the town showing that another person had been elected Secretary before the POR. Id.
Court No. 23-00136 Page 25
Given Commerce’s open-ended request, the GOC’s failure to identify or propose
any alternative source of government documentation, the CCP Constitution’s
requirement that qualifying enterprises establish primary Party organizations and the
GOC’s demonstrated ability in Citric Acid to provide government and CCP records
concerning officials, the court concludes that Commerce determined reasonably that the
GOC was capable of providing government documentation that could be responsive to
Commerce's request and that the GOC failed to do so.
Plaintiffs next assert that, even if the GOC could provide “some sort of limited
local or sub-national CCP database, to the extent that one even exists,” such a
database “would not sufficiently answer Commerce’s question because it would not, and
could not possibly, cover” all nine CCP entities. Pls. Br. at 17. Plaintiffs emphasize that
Commerce’s request encompasses “every level of society in China and hundreds, if not
thousands, of entities.” Id.
Commerce responded to this argument by explaining that the GOC could have
consulted multiple databases. Remand Results at 19-20. Commerce stated that the
GOC could have provided records, for example, from databases “for each of [sic]
jurisdictions where the nine entities are located.” Id. at 35. As the Federal Circuit has
held: the potential breadth of Commerce’s request does not relieve the GOC of its
obligation to “put forth its maximum effort to provide Commerce with full and complete
answers.” Nippon Steel Corp., 337 F.3d at 1382. Commerce explained further that
“only the GOC has the understanding of what government documents it, including the
CCP, maintain [sic] and what they demonstrate.” Remand Results at 36. Commerce
therefore stated that it could only “suggest” examples of responsive records because Court No. 23-00136 Page 26
“the GOC did not address whether such information exists, nor did it explain whether
there was some other source for independently confirming and documenting the GOC's
claims.” Id. As in Yama Ribbons, Commerce expected reasonably for the GOC to
explain what efforts it undertook to locate responsive government records. Yama
Ribbons & Bows Co. v. United States, 48 CIT __, __, 719 F. Supp. 3d 1388, 1396
(2024) (upholding Commerce’s determination that “the government of China made no
serious effort to obtain the information Commerce requested”).
Accordingly, in view of the GOC’s failure to provide the requested information or
to explain adequately its efforts to obtain that information, the court concludes that
Commerce determined reasonably that the GOC withheld requested government
information and failed to cooperate to the best of its ability.
2. Whether Commerce explained adequately that only government
documentation could establish whether CCP or GOC officials are
present in Baroque’s input suppliers
The court addresses next whether Commerce determined reasonably that
government documentation—and only government documentation—is necessary to
analyze whether Baroque’s input suppliers are government authorities. 8
As noted, the GOC refused to provide any government documentation relating to
the presence or absence of CCP members or GOC officials in supplier companies. See
Remand Results at 16, 17-18. Instead, the GOC submitted responses that it obtained
from some of Baroque’s input suppliers, including: (1) company “certifications” denying
CCP Party organization presence in the company; (2) biographies of owners, directors
8 Commerce stated that “government documentation, independent of the input suppliers, [is] necessary for fully evaluating the influence and control the GOC (through the CCP) has over the input suppliers.” Remand Results at 7.
Court No. 23-00136 Page 27
and managers; and (3) identification documents for some individual owners and
directors. GOC Remand Questionnaire Response at 4-9; see also id. Ex. RSQ-2. The
GOC asserted that the additional company documentation demonstrated that “there is
no primary [P]arty organization established in these companies” and that “there are no
senior members being [sic] government or CCP officials.” Id. at 5.
Plaintiffs maintain that, because Commerce’s application of AFA based on the
GOC’s noncooperation adversely affects cooperating respondents, “Commerce should
have accepted . . . alternative, verifiable information proffered even though it did not
technically meet the ‘government documentation’ request.” Pls. Br. at 19.
a. Legal framework
Section § 1677e(b) provides that when Commerce finds that an “interested party
has failed to cooperate by not acting to the best of its ability to comply with a request for
information,” Commerce may “use an inference that is adverse to the interests of that
party in selecting from among the facts otherwise available.” 19 U.S.C. § 1677e(b).
Because Commerce “has no subpoena power,” Nan Ya Plastics, Corp. v. United States,
810 F.3d 1333,1388 (Fed. Cir. 2016), “AFA is ‘an essential investigative tool’” in
antidumping and countervailing duty proceedings. Deacero S.A.P.I. de C.V. v. United
States, 996 F.3d 1283, 1297 (Fed. Cir. 2021) (quoting Uruguay Round Agreements Act
(“URAA”), Statement of Administrative Action (“SAA”), H.R. Doc. No. 103-316, vol. 1, at
868 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4198)).
Accordingly, “‘[t]he purpose of the adverse facts statute is to provide respondents
with an incentive to cooperate with Commerce’s investigation.’” Maverick Tube Corp. v.
United States, 857 F. 3d 1353, 1360 (Fed. Cir. 2017) (alteration in original) (quoting
Essar Steel Ltd. v. United States, 678 F.3d 1268, 1276 (Fed. Cir. 2012)). The incentive Court No. 23-00136 Page 28
function of AFA is most direct when the adverse inference affects the noncooperating
party itself: the possibility of an adverse result encourages the noncooperating party to
provide Commerce with the requested information. When the adverse inference instead
or additionally affects a cooperating party, however, a party experiencing an adverse
consequence is not the party whose cooperation Commerce seeks to induce.
When an adverse inference “collaterally” affects a cooperating respondent, rather
than the interested party that “failed to cooperate,” an additional question arises
because § 1677e(b) authorizes an inference “adverse to the interests of that party”—
i.e., the interested party that failed to cooperate to the best of its ability. See Fine
Furniture, 748 F.3d at 1370-71 (emphasis supplied) (“The dispute in this case centers
on the phrase ‘that party,’ which has its antecedent basis in the words ‘interested party.’”
(quoting 19 U.S.C. § 1677e(b))). In Fine Furniture, the Federal Circuit concluded that §
1677e(b) permits Commerce to draw an adverse inference based on a foreign
government’s noncooperation because the statutory definition of an “interested party”
includes “the government of a country in which [the subject] merchandise is produced or
manufactured.” Id. at 1371 (alteration in original) (quoting 19 U.S.C. § 1677(9)(B)). The
Federal Circuit reasoned also that this “collateral effect[] . . . has the potential to
encourage the government of China to cooperate so as not to hurt its overall industry.”
Id. at 1373.
That permissible “collateral effect” does not, however, expand the informational
gap that Commerce may fill through an adverse inference. The adverse inference must
remain directed at the information that is missing because of the noncooperating party.
In Fine Furniture, the Federal Circuit emphasized that Commerce “did not apply adverse Court No. 23-00136 Page 29
inferences to substitute for any information that was actually submitted,” but instead
used adverse inferences to fill the gap created by the GOC’s failure to provide the
requested information. Id. at 1372-73. The Federal Circuit explained further that
Commerce did not select the adverse result “to punish the cooperating plaintiff, but
rather to provide a remedy for the government of China’s failure to cooperate.” Id. at
1373.
Consistent with these parameters, this Court has held more recently that: “[i]t is
well established . . . that Commerce may seek the information it needs from the
exporting government in a countervailing duty proceeding and, in appropriate
circumstances, may invoke its authority under 19 U.S.C. § 1677e(b), even if the result is
a collateral adverse effect upon a cooperating party.” Yama Ribbons and Bows Co.
v. United States, 46 CIT __, __, 606 F. Supp. 3d 1345, 1352-53 (2022) (citing Fine
Furniture, 748 F.3d at 1372-73). “Commerce should seek to avoid this adverse effect if
the necessary information is present elsewhere on the record.” Id. at 1353 (citing Trina
Solar I, 42 CIT at __, 352 F. Supp. 3d at 1325). 9
This Court has addressed Commerce’s application of AFA based on government
noncooperation where Commerce sought information concerning whether private input
producers were government “authorities.” See Yama Ribbons & Bows Co. v. United
9 The court observes that in prior cases, this Court stated that Commerce should “seek
to avoid such impact if relevant information exists elsewhere on the record.” See, e.g., Trina Solar I, 42 CIT at __, 352 F. Supp. 3d at 1325 (emphasis supplied) (citing Archer Daniels Midland Co. v. United States, 37 CIT 760, 769, 917 F. Supp. 2d 1331, 1342 (2013)). The court treats the terms “necessary” and “relevant” in context as addressing the same concept: reliable information elsewhere on the record on which Commerce may depend to fill the gap created by a government’s noncooperation.
Court No. 23-00136 Page 30
States, 46 CIT __, __, 611 F. Supp. 3d 1394, 1404-05 (2022) (sustaining Commerce’s
application of AFA to determine that private input suppliers of synthetic yarn and caustic
soda were government authorities); Jiangsu Senmao Bamboo and Wood Indus. Co. v.
United States, 49 CIT __, __, 769 F. Supp. 3d 1344, 1395-97 (2025) (sustaining
Commerce’s application of AFA to determine that privately owned suppliers of poplar
core sheets were government “authorities”); see also Mosaic Co. v. United States, 46
CIT __, __, 589 F. Supp. 3d 1298, 1324 (2022) (sustaining Commerce’s application of
AFA based on Russian government’s failure to provide requested information
concerning whether private input producer was government authority).
b. Application of legal framework
In the cases discussed above involving the GOC, Commerce sought information
to determine whether private input suppliers were government “authorities,” and the
GOC provided no government documentation and no information obtained from the
suppliers themselves. See Yama, 611 F. Supp. 3d at 1404-05 (GOC provided no PORspecific information concerning CCP or government involvement in the suppliers);
Jiangsu Senmao, 769 F. Supp. 3d at 1395-97 (GOC provided no requested information
concerning CCP or government involvement in the suppliers). In this case, the GOC
again provided no government documentation; however, the GOC provided what it
characterized as “direct information” obtained from some of Baroque’s input suppliers.
GOC Remand Questionnaire Response at 5.
The question presented, therefore, is whether Commerce explained adequately
why that “direct information” does not constitute “relevant” or “necessary information . . .
elsewhere on the record” such that Commerce could rely on that information to Court No. 23-00136 Page 31
determine whether CCP members or government officials are present in those
suppliers. The ordinary meaning of the word “relevant” informs this inquiry. MerriamWebster defines “relevant” as “having significant and demonstrable bearing on or
relation to the matter at hand” and as “providing evidence tending to prove or disprove
the matter at issue or under discussion.” Relevant, Merriam-Webster.com Dictionary,
Merriam-Webster, [https://www.merriam-webster.com/dictionary/relevant] (last visited
Sept. 28, 2026).
Plaintiffs as noted concede that the supplier statements denying CCP party
presence, as well as biographies and identification documents of certain owners,
directors and managers “did not technically meet the ‘government documentation’
request”; however, plaintiffs argue that these submissions provided “alternative,
verifiable information” that plaintiffs claim is “sufficient factual information to demonstrate
that the relevant suppliers are not government authorities.” Pls. Br. at 19. Plaintiffs
maintain also that company human-resources records identify CCP presence such that
these records could be used to verify the accuracy of the supplier statements denying
CCP party presence, biographies, and identification documents. Id.at 15, 20.
In the Remand Results, Commerce provided two reasons that Commerce
continued to decline to rely on the information from the private input suppliers.
i. Whether Commerce considered adequately the
additional private-company information provided
on remand
Commerce’s first reason for declining to rely on the information from the private
input suppliers was that the suppliers’ “certifications”—which stated that each company
had fewer than three CCP members (and therefore no primary Party organization)— Court No. 23-00136 Page 32
“lack particular details for examining possible government involvement in each
company.” Remand Results at 34.
In Baroque I, the Court accepted as reasonable Commerce’s explanation that
company “certifications” denying CCP influence were insufficient because they were
“pro forma in nature.” 766 F. Supp. 3d. at 1309-10. In the IDM, Commerce explained
that the “certifications” provided by the input suppliers “do not definitively deny the
involvement by the government or the CCP in these suppliers; rather, they merely state
rhetorically that even if there was some CCP presence in the company, it has no
bearing on the company's management and operations.” IDM at 58. 10
On Remand, however, the GOC provided “certifications” from ten of Baroque’s
input suppliers that “there is [sic] no individual owners, members of the board of
directors, or senior managers who were [GOC] or CCP officials during the POR in these
input producers.” GOC Remand Questionnaire Response at 8. The “certifications”
provided by the GOC state that the company in question “has not established a primary
Party organization of the [CCP], because the number of party members in our company
is less than three, and the conditions for establishing a [P]arty organization have not
been met.” Id., Ex. RSQ-2. 11 The GOC submitted also biographies and/or identification
10 The “certifications” stated that “[a]ll decisions are made independently” and that
“[e]ven if the company's shareholders, directors, managers and other senior managers are the representatives of the People's Congresses and the CPPCC at all levels, their status will not affect the company's internal operation and management.” GOC Initial Questionnaire Response, Ex. RSQ-2.
11 Commerce recognizes that a CCP committee branch or “primary organization” is
required to be “formed in any enterprise with three or more party members, regardless of state-ownership.” See, e.g., Remand Results at 6 n.36.
Court No. 23-00136 Page 33
cards for the individual shareholders, directors and managers of seven input suppliers
to support the suppliers’ representations to the GOC that those individuals are not CCP
members. Id. 12 The GOC stated also that “Commerce may decide to verify the input
suppliers” by cross-checking the company’s human resource records. Id. at 5.
Commerce did not address this additional information, stating only that “the
company certifications are pro forma in nature and lack particular details for examining
possible government involvement in each company.” Remand Results at 34.
Commerce did not explain why these “certifications” were “pro forma in nature” or
identify what “particular details” are necessary for Commerce to examine possible
government involvement in each company. Id. In sum, Commerce’s comment is not
sufficient for the court to conclude that Commerce had a reasonable basis for its
decision. Commerce on remand is directed to explain, consistent with this decision, the
reasons that the information from private companies furnished by the GOC “lack[s]
particular details for examining possible government involvement in each company.” Id.
If Commerce is unable to provide such reasons, Commerce is directed to reconsider its
conclusion.
12 One supplier stated that it had “no individual shareholders” and that “all senior
personnel are non-Chinese nationals.” GOC Remand Questionnaire Response, Ex. RSQ-2. The supplier asserted that because CCP membership is limited to Chinese nationals, the company’s “senior personnel” could not be CCP members and submitted identification documents and passports supporting the nationality of those “senior personnel”. Id.
Court No. 23-00136 Page 34
ii. Whether Commerce explained adequately why
government documentation is necessary to
assess the reliability of private-company
information
Commerce’s second set of reasons for continuing to decline to rely on the
information from the private input suppliers was as follows: that “given the significant
influence of the CCP and GOC in the Chinese economic system and the lack of public
reporting requirements, company information and documentation cannot replace
government documentation in our analysis of whether the GOC/CCP may exert a
controlling influence over a given input supplier.” Id. at 33. On that basis, Commerce
asserted also that “verification of such [private] information without the necessary
corroborating government documentation would be pointless.” Id. at 33-34.
Commerce’s statement itself contains two reasons: (1) the absence of public reporting
requirements concerning an individual’s CCP or GOC affiliation; and (2) the significant
influence of the CCP and GOC in the Chinese economic system. Id.
In support of its findings concerning the influence of the CCP and GOC in the
Chinese economic system, Commerce relied on the 2019 Update and the 2012 Public
Bodies Memo. See Remand Results at 18 (citing Memorandum, “Public Bodies Analysis
Memo,” dated June 24, 2022, Attach. 1, Update of the 2012 Public Bodies Analysis of
State-Invested Enterprises in China for Countervailing Duty Purposes, dated Feb. 27,
2019 (“2019 Update”) and Attach. 2, 2012 Public Bodies Memo, and Attach., Letter from
Shauna Biby, Christopher Cassel & Timothy Ruby, Office of Policy, Import
Administration, to Paul Piquado, Assistant Secretary for Import Administration, re: The
Relevance of the Chinese Communist Party for the Limited Purpose of Determining
Whether Particular Enterprises Should Be Considered to Be “Public Bodies” Within the Court No. 23-00136 Page 35
Context of a Countervailing Duty Investigation (May 18, 2012) (“Relevance of the
CCP”)).
The court addresses in turn whether, in light of these record materials, each of
Commerce’s stated reasons adequately explains why Commerce concluded that
government documentation was necessary.
(1) Absence of Public Reporting Requirements
First, Commerce explained that “input producers are not required to report or
record in their internal records and documents whether any company owners, members
of the board of directors or managers are [CCP or GOC officials].” Remand Results at
32. The absence of a reporting requirement could provide a basis for the court to
determine that Commerce’s conclusion was reasonable. However, Commerce’s
explanation does not provide a “reasonably discernible . . . path” for its decision. NMB
Sing. Ltd., 557 F.3d at 1319. Commerce does not explain or document clearly what it
means when it says that there is no requirement to disclose, record or report. Remand
Results at 32. Further, Commerce does not make clear why the absence of such a
disclosure/reporting requirement leads to Commerce’s conclusion that information
maintained by the private companies cannot reliably establish whether: (1) their owners,
directors, or managers are CCP or GOC officials; (2) a primary Party organization exists
within the company; or (3) a company is meeting or failing to meet the requirement
under Chinese law that the company “shall provide necessary conditions to facilitate the
activities of the Party” in that company. 2012 Public Bodies Memo at 33 n.140.
To meet its obligation, Commerce must clarify and expand its explanation on
these points regarding the lack of a public reporting requirement. To begin, Commerce Court No. 23-00136 Page 36
will need to state clearly whether: (1) there is an official published document of the CCP
or GOC that requires CCP members or officials to include that information in their
biographies or in other documents reported to the company at which they work; and (2)
there is an official published document of the CCP or GOC that in turn requires
information so reported to appear in company records, including biographies,
identification documents or other human-resource records. If both conditions are met,
Commerce will need to include in its determination precise citations to the pertinent
Chinese legal instrument(s) that establish these conditions. Conversely, if there are no
such disclosure/reporting requirements established under CCP or GOC law, Commerce
will need to explain why claims by a private company provide a demonstrably reliable
basis for the Department of Commerce to reply upon those claims in applying 19 U.S.C.
§ 1677e(b). See Fine Furniture, 748 F.3d at 1372-73.
Commerce did not include such an explanation. It is for Commerce, not the
court, to determine whether the information provided by the GOC to Commerce that the
GOC solicited from private companies could or could not reliably establish the CCP or
GOC status of all relevant individuals or activities by the CCP or GOC related to the
company in question, and for Commerce to support that determination with reasoned
explanation. See Al Ghurair Iron & Steel LLC v. United States, 65 F.4th 1351, 1362
(Fed. Cir. 2023) (explaining that a reviewing court cannot “supply a reasoned basis for
[Commerce’s] action that [Commerce] itself has not given”) (alteration in original)
(citation omitted).
Court No. 23-00136 Page 37
(2) Significant influence of the CCP or GOC in
Chinese economic system
Commerce’s second reason that private-company information cannot substitute
for government documentation concerns the “significant influence of the CCP and GOC
in the Chinese economic system.” Remand Results at 33. Commerce stated in its
2019 Update, confirming the analysis of the 2012 Public Bodies Memo, that “certain
enterprises that have little or no formal government ownership are public bodies if
Commerce determines that the government exercises meaningful control over them.”
2019 Update at 28.
Commerce stated that “record evidence demonstrates that the CCP exerts
significant control over economic activities in China.” Remand Results at 18.
Commerce added that “record evidence also demonstrates that the GOC exercises
meaningful control over private entities and uses them to effectuate its goals of
upholding the socialist market economy, allocating resources, and maintaining the
predominant role of the state sector.” Id. (citing 2012 Public Bodies Memo and 2019
Update).
Commerce relied on the 2012 Public Bodies Memo for these statements
concerning the CCP’s role in China’s economy and the mechanisms through which CCP Court No. 23-00136 Page 38
involvement may facilitate government control over private enterprises. 13 In the 2012
Public Bodies Memo, Commerce examined the extent of government control over
Chinese enterprises for purposes of determining whether those entities constitute public
bodies. Relevant here, Commerce considered whether CCP presence in private
enterprises may demonstrate government control and explained that Commerce’s
“case-by-case analysis” may consider, among other factors, “the presence of
government or CCP officials on the board or in management” and “the existence and
role of a Party committee.” 2012 Public Bodies Memo at 38.
As part of that analysis, Commerce identified and examined two official published
legal instruments governing the establishment of CCP organizations within private
enterprises: (1) the 2006 Company Law; and (2) the CCP Constitution. See id. at 33-38. With respect to the 2006 Company Law, Article 19 provides that the CCP “may,
according to the Constitution of the Chinese Communist Party, establish its branches in
companies to carry out activities of the Chinese Communist Party” and that “[t]he
company shall provide necessary conditions to facilitate the activities of the Party.” Id.
at 33 & n.140; see also Relevance of the CCP at 10. Commerce characterized Article
13 The 2012 Public Bodies Memo was prepared as part of Commerce’s implementation,
under section 129 of the Uruguay Round Agreements Act, of the WTO Appellate Body’s decision in United States—Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, WT/DS379/AB/R. See Borusan Mannesmann Boru Sanayi ve Ticaret A.S. v. United States, 39 CIT __, __, 61 F. Supp. 3d 1306, 1315-16 (2015). Commerce has since relied on the analysis in subsequent CVD proceedings involving imports from China. See, e.g., Certain Metal Lockers and Parts Thereof from the People's Republic of China: Final Affirmative Countervailing Duty Determination, 86 Fed. Reg. 35,741 (Dep't of Commerce July 7, 2021) and accompanying IDM (Dep't of Commerce June 28, 2021) at cmt. 5; Narrow Woven Ribbons with Woven Selvedge from the People’s Republic of China: Final Results of Countervailing Duty Administrative Review; 2018, 86 Fed. Reg. 40,462 (Dep’t of Commerce July 28, 2021), and accompanying IDM at cmt. 1.
Court No. 23-00136 Page 39
19 as “affirm[ing] the Party’s right to establish Party committees in both public and
private enterprises.” Relevance of the CCP at 10. With respect to the CCP
Constitution, Commerce explained that “[i]n accordance with the CCP Constitution, all
organizations, including private commercial enterprises, are required to establish
‘primary organizations of the party’ (or ‘Party committees’) if the firm employs at least
three party members.” Id. at 35.
Commerce explained also that the CCP exercises a significant and growing role
in Chinese enterprises, including private enterprises, noting that “[t]he party has cells in
most big companies” and that “there has been a concerted effort to establish party
committees in private enterprises,” including “with occasional cash incentives.” Id. at
35-36 (citation omitted). In this same memo, Commerce highlighted also the lack of
transparency surrounding the precise role and influence of the CCP within enterprises.
See id. at 36. Commerce added that the limited information available to it indicated that
the CCP may exercise significant influence over company affairs: the CCP “holds
meetings that shadow formal board meetings and often trump their decisions” and
“often gets involved in business planning and works with management to control pay.”
Id. (footnotes omitted).
The 2012 Public Bodies Memo and the 2019 Update, which Commerce placed
on the record and then cited from, may support an inference that information maintained
by private companies does not reveal the full extent of CCP or government involvement.
Commerce, however, did not make clear precisely how Commerce’s findings in the
2012 Public Bodies Memo or the 2019 Update specifically buttressed Commerce’s
conclusion in this case: in particular, the conclusion that—based on officially published Court No. 23-00136 Page 40
legal instruments of the CCP and GOC coupled with the lack of specificity and
transparency related to such instruments—only government documentation would
suffice. Again, the court cannot supply that reasoning for Commerce. See Al Ghurair
Iron & Steel, 65 F.4th at 1362.
C. Remand instructions
In accord with the foregoing, on remand, Commerce shall further explain or
reconsider its application of AFA on the basis that: (1) CCP or GOC officials are present
among the relevant owners, directors and managers of Baroque’s input suppliers; (2)
primary Party organizations are present within the relevant input suppliers where there
are three or more CCP members, pursuant to the CCP Constitution; or (3) a Chinese
company “shall provide necessary conditions to facilitate the activities of the Party.”
2012 Public Bodies Memo at 33 n.19. Commerce shall explain its statement that the
information concerning private companies furnished by the GOC “lack[s] particular
details for examining possible government involvement in each company,” Remand
Results at 34, including what particular details are lacking and why those details are Court No. 23-00136 Page 41
necessary to Commerce’s analysis. 14 If Commerce cannot support its determination in
this case that only government documentation can fill the gap in the record, Commerce
shall address whether the information identified by plaintiffs constitutes “necessary
information [that] is present elsewhere on the record” on which Commerce may rely.
Yama Ribbons, 606 F. Supp. 3d at 1353.
As Commerce applies the remand instructions enumerated below, Commerce
shall address two challenges that it appears to face in determining whether information
provided by the input suppliers constitutes “necessary information . . . elsewhere on the
record” that could “avoid” the collateral adverse effect of the GOC’s noncooperation. Id.
The first challenge relates to the potentially broad or vague terms used in the only
Chinese legal instruments that have been made available to Commerce for the record in
this proceeding. Commerce shall state whether those terms leave unclear the precise
scope or nature of activities by the CCP or GOC in or related to private companies and
14 In conducting this analysis, the court notes that Commerce is not required to
supplement the record to support plaintiffs’ position. Rather, plaintiffs bear the burden of identifying information capable of filling the gap created by the GOC’s failure to provide government documentation. Qingdao Sea-Line Trading Co. v. United States, 766 F.3d 1378, 1386 (Fed. Cir. 2014) (“The burden of creating an adequate record lies with the interested parties, not with Commerce.”) (citing QVD Food Co. v. United States, 658 F.3d 1318, 1324 (Fed. Cir. 2011)). That burden, however, does not relieve Commerce of its obligation to support its determination with substantial evidence. See SeAH Steel VINA Corp. v. United States, 950 F.3d 833, 847 (Fed. Cir. 2020) (“While ‘the burden of creating an adequate record lies with [interested parties],’ . . . Commerce must, nonetheless, support its decision with substantial evidence.” (quoting QVD Food, 658 F.3d at 1324)). Commerce therefore must consider the “relevant information” that plaintiffs have identified and explain whether that information is capable of filling the gap. Plaintiffs, however, ultimately bear the burden of identifying and producing the purported alternative information. Section 1677m(e) does not require Commerce to use deficient information merely because it has been submitted; among other things, the information must be submitted timely, be “verifiable,” and not be “so incomplete that it cannot serve as a reliable basis for reaching the applicable determination.” 19 U.S.C. § 1677m(e)(2)-(3).
Court No. 23-00136 Page 42
individuals that in turn may prevent Commerce from relying on representations of
certain private companies and individuals.
The second challenge is what Commerce describes as the lack of transparency,
including related to the application and implementation by the CCP and GOC,
respectively, of those two legal instruments—or others of which Commerce may not
even be aware given the GOC’s failure to cooperate in this proceeding. See 2012
Public Bodies Memo at 36 (noting the “lack of transparency” surrounding the precise
role and influence of the CCP within private companies). In that regard, the 2012 and
2019 memoranda as well as the questionnaires issued to the GOC in this proceeding
evince a substantial effort by Commerce to obtain information from the GOC about the
legal instruments and actions of the CCP and GOC. In response, the only official
published instruments of the CCP or the GOC that the GOC has provided, or that
Commerce has found through public sources, are the CCP Constitution and the 2006
Company Law. See Public Bodies Memo at 33-37.
Further in this respect, the court notes with concern the GOC’s comment that it
was “unable to require the CCP” to provide Commerce’s requested information because
the CCP is “not [a] government[] agenc[y].” Jiangsu Senmao,769 F. Supp. 3d at 1395.
(citation omitted). This circumstance presents a particular challenge for Commerce
where information necessary to its investigation is held by an entity that Commerce has
found “exerts significant control over economic activities in China,” Remand Results at
18, yet information from that entity cannot be provided by the GOC. See also 2019
Update at 2 n.3 (stating that the CCP is “particularly concerned with its authority over
the economy because economic growth is so critical to advancing the cause of Court No. 23-00136 Page 43
socialism and building a strong nation”); see also Relevance of the CCP at 11-12 n.34
(quoting the CCP Constitution as providing that the CCP “leads the people in developing
the socialist market economy”).
That concern is particularly acute where Commerce determines that information
held by the CCP is necessary to assess the completeness and reliability of privatecompany information. In such circumstances, the inability to obtain that information
through the GOC may leave a gap in the record that Commerce must address under the
facts-otherwise-available framework, 19 U.S.C. § 1677e(a), and, where the
requirements of 19 U.S.C. § 1677e(b) are satisfied, through the use of an adverse
inference.
Consistent with the above, Commerce on remand shall:
(1) Address whether the CCP, the GOC, or one of the nine entities may
maintain information concerning an individual’s CCP or GOC affiliation that the
individual’s private employer may not maintain or have access to. Commerce shall
explain whether it is reasonable to conclude based on the record, including the
responses of the GOC, that a company despite any best efforts does not know what it
does not know—i.e., that an individual may possess a CCP or GOC affiliation of which
the company has no reliable knowledge or record.
(2) Explain whether the various forms through which the CCP or GOC may
exercise meaningful control over a private enterprise—including (1) the establishment of
a primary Party organization, (2) the presence of CCP or GOC officials among the
owners, directors or senior managers of an enterprise or (3) the requirement under
Article 19 of the 2006 Company Law that a company “shall provide necessary Court No. 23-00136 Page 44
conditions to facilitate the activities of the Party,” 2012 Public Bodies Memo at 33 n.19—
bear on Commerce’s determination that government documentation is necessary for
Commerce to consider company documentation a reliable basis on which to reach
Commerce’s determination.
(3) Explain, based on the record and official published instruments of the CCP
or GOC, the precise meaning of the terms (1) “necessary conditions,” (2) “facilitate” and
(3) “the activities of the Party” in Article 19, based on official published instruments of
the CCP or GOC. Commerce shall then explain: (i) whether and how the CCP’s ability
to establish “branches” within private companies, the requirement that companies
“facilitate” those branches’ “activities”, and the required establishment of “primary Party
organizations” in certain enterprises demonstrate that company documentation cannot
reliably establish an individual’s CCP or GOC affiliation; and (ii) whether and how the
lack of transparency surrounding CCP activities, including as confirmed by the GOC,
Jiangsu Senmao, 769 F. Supp. 3d at 1395, within individual enterprises limits
Commerce’s ability to know what information may be missing from company
documentation and, in turn, whether verification could establish that such
documentation is complete and reliable.
(4) Address whether the absence of a requirement—under (1) the 2006
Company Law, (2) the CCP Constitution or (3) any other official, published instrument of
the CCP or GOC that have been provided to or that may be accessed publicly by
Commerce—that a CCP member or GOC official report that affiliation publicly or provide
such information to a company may affect the reliability of company information
concerning whether an individual has any such affiliation. Commerce’s IDM and Court No. 23-00136 Page 45
Remand Results suggest but leave unclear the conclusion that, due to the lack of
reporting requirements as noted above, company information is insufficient of itself to
establish whether an individual has a CCP or GOC affiliation. To the extent that
Commerce relies on the absence of such a requirement to conclude that company
records do not provide a reliable basis to conclude that an individual does or does not
have a CCP or GOC affiliation, Commerce shall explain the significance of the absence
of such a requirement. In particular, Commerce shall state its conclusion clearly and
address whether, because there is no such requirement, any such affiliation may not
appear in an individual’s biography, human-resources records or other such
documentation. Conversely, if Commerce determines that the absence of such a
requirement does not prevent such records from providing a reliable basis to reach a
valid conclusion as to an individual’s possible affiliation, Commerce shall explain why
that is the case.
(5) Explain (a) whether the “significant influence of the CCP and GOC in the
Chinese economic system,” Remand Results at 33, is a basis for its determination and,
if so, (b) how this “significant influence” relates to the issues of government and
company documentation in Points (1) – (4).
(6) Address plaintiffs’ assertion that “Commerce relies on official company
information all the time to demonstrate usage of government subsidy programs,” and
that “[i]t is not clear why this would not be sufficient to demonstrate whether the
company itself has a primary [P]arty organization.” Pls. Br. at 18-19. The court notes
that plaintiffs did not specify to which purposes they referred. In that regard, if
Commerce does not understand what purposes are being suggested by plaintiffs, Court No. 23-00136 Page 46
Commerce shall direct the parties to identify any such purposes and their relevance to
the current inquiry in this case. Commerce shall explain whether its reliance on
company information in other contexts is comparable to reliance on the company
information proffered by the GOC here.
(7) Explain, if Commerce determines that company records do not reliably
establish the presence or absence of CCP or GOC affiliation, the purpose to be served
by seeking additional company documentation or verification of any such
documentation. In doing so, Commerce shall address the GOC’s statement that
“Commerce may decide to verify the input suppliers,” by cross-checking the companies’
human-resources records, GOC Remand Questionnaire Response at 5, and explain
how, if such records may themselves be insufficiently reliable, Commerce could use
those records to verify other information consistent with 19 U.S.C. § 1677m(i).
Commerce shall also explain why it requested this additional information in the first
instance if, as Commerce now appears to maintain, information obtained from the
companies is not reliable. 15
(8) Address (a) whether the record contains official published legal
instruments of the CCP or GOC that provide that CCP membership is limited, without
exception, to Chinese nationals and, if so, (b) how based on the record in this
proceeding the CCP or GOC verifies an individual’s nationality and eligibility for CCP
membership.
15 Question 3 of the Remand Questionnaire, for example, specifically requested
“published biographies in 2020 of all senior staff members of each input producer, including, but not limited to executive directors, managing directors, etc.” Remand Questionnaire at 5-6.
Court No. 23-00136 Page 47
CONCLUSION
In conclusion, the court sustains in part and remands in part Commerce’s
Remand Results. For the foregoing reasons, it is hereby
ORDERED that Commerce’s calculation of the plywood benchmark is sustained;
it is further
ORDERED that Commerce’s decision to apply AFA to find certain of Baroque’s
input suppliers are government authorities is remanded for Commerce to explain further
or reconsider consistent with the court’s foregoing instructions; it is further
ORDERED that Commerce shall file with the court its second remand
redetermination within 90 days following the date of this Opinion and Order; it is further
ORDERED that the moving parties shall have 30 days from the filing of the
remand redetermination to submit comments to the court; and it is further
ORDERED that should the moving parties submit comments, defendant shall
have 21 days from the date of filing of the last comment to submit a response.
SO ORDERED.
/s/ Timothy M. Reif
Timothy M. Reif, Judge
Dated: October 20, 2026
New York, New York