Commerce Must Reopen Record to Correct Erroneous SV Information, CIT Says in Third Remand Order
For the third time, the Court of International Trade remanded part of the Commerce Department’s final results of an antidumping duty review on multilayered wood flooring from China.
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Judge Jennifer Choe-Groves criticized the department sharply in the remand order, saying that the surrogate data the department used “contains objectively incorrect information” and “lead[s] one to question whether Commerce’s repeated insistence on using objectively incorrect Brazilian data is results-driven or cherry-picking.”
The department, recognizing that one month of its Brazilian Global Trade Atlas surrogate value data for plywood contained a likely clerical error, simply removed that month, she explained. This resulted in an increase of the surrogate value by 453% when the department could have instead reopened the record for more accurate information, she said.
“Commerce has now made this adjustment three times,” she said. “The Court orders that Commerce may not make this unreasonable and unlawful adjustment a fourth time on remand.”
The department has a statutory obligation to rely on the best available information, she said. She held she couldn't support the data adjustment Commerce had made as creating the best information available under the U.S. Court of Appeals for the Federal Circuit's definition of the term.
The department faced an "unfortunate choice" of its "own making" by narrowing its own options to either using the information with the inaccurate month included or removing the month, she said. But neither, she said, actually resulted in the best information available.
She ordered Commerce instead to reopen the record so that it could collect more accurate information. She acknowledged that “courts are generally reluctant” to order such a move, but explained that there is an exception when a government agency’s decision is based on data it recognizes is incorrect.
The department could consider using Global Trade Atlas data for the years 2021 or 2019 instead of 2020 or using Malaysian surrogate data, as Commerce is already relying on information from Malaysia in another part of the review, she said.
But she did sustain the department’s overall use of Brazil as the review’s primary surrogate, saying that, in its second remand redetermination, it had conducted the proper statutory analyses both for relying on Brazilian data and for switching to Malaysian data for two oak inputs.
Choe-Groves previously remanded the results in April last year (see 2404190032) because, among other things -- as she explained in her most recent order -- the department had “failed, again, to cite any specific evidentiary documents on the record in support of its own determination” other than “its own agency filings, such as its Preliminary Determination, which is not evidence.” This time, it “cured these problems,” she said.
(Jiangsu Senmao Bamboo and Wood Industry Co. v. United States, Slip Op. 25-16, CIT # 22-00190, dated 02/18/25; Judge: Jennifer Choe-Groves; Attorneys: Jeffrey Neely of Husch Blackwell for plaintiff Jiangsu Senmao Bamboo and Wood Industry Co.; Mark Ludwikowski of Clark Hill for plaintiff-intervenor Lumber Liquidators Services; Kelly Geddes for defendant U.S. government; Timothy Brightbill of Wiley Rein for defendant-intervenor American Manufacturers of Multilayered Wood Flooring)