CIT 就中国多层木地板反补贴税第九次行政复审发回重审结果部分维持、部分发回

Slip Op. 26-124

UNITED STATES COURT OF INTERNATIONAL TRADE

BAROQUE TIMBER INDUSTRIES (ZHONGSHAN) CO., LTD. AND RIVERSIDE PLYWOOD CORPORATION,

Plaintiffs,

and

ZHEJIANG DADONGWU GREENHOME WOOD CO., LTD., et al.,

Consolidated Plaintiffs,

and

LUMBER LIQUIDATORS SERVICES, LLC,

Plaintiff-Intervenor,

v.

UNITED STATES,

Defendant,

and

AMERICAN MANUFACTURERS OF MULTILAYERED WOOD FLOORING,

Defendant-Intervenor.

Before: Timothy M. Reif, Judge

Consol. Court No. 22-00210

OPINION AND ORDER

[Sustaining in part and remanding in part Commerce’s remand redetermination in the ninth administrative review of the countervailing duty order covering multilayered wood flooring from the People’s Republic of China.]

Dated: October 9, 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.

Kristin H. Mowry, Mowry & Grimson, PLLC, of Washington, D.C., for consolidated plaintiffs Fine Furniture (Shanghai) Ltd. & Double F Limited. With her on the brief were Sarah Marie Wyss and Clemence D. Kim.

Tara K. Hogan, Assistant Director, 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 and Patricia M. McCarthy, 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.

* * *

Reif, Judge: Before the court are the remand results of the U.S. Department of

Commerce (“Commerce”) concerning the ninth 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, 2019. Final Results of Redetermination

Pursuant to Court Remand (“Remand Results”), ECF No. 85-1; see also Multilayered

Wood Flooring from the People's Republic of China: Final Results and Partial

Rescission of Countervailing Duty Administrative Review; 2019 (“Final Results”), 87

Fed. Reg. 36,305 (Dep't of Commerce Jun. 16, 2022) and accompanying Issues and

Decision Memorandum (“IDM”) (Dep’t of Commerce Jun. 10, 2022).

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.

100. Plaintiffs object specifically to the determinations of Commerce regarding: (1) the

calculation of the benchmark prices for face and backboard veneers; (2) the calculation

of the benchmark price for plywood; and (3) the use of adverse facts available (“AFA”)

to find that Baroque’s input suppliers are government authorities. See id.

Fine Furniture (Shanghai) Ltd. and Double F Ltd. (collectively, “consolidated

plaintiffs”) also challenge certain aspects of the Remand Results. Cmts. Opposing Final

Remand Redetermination of Consolidated Pls. Fine Furniture (Shanghai) Limited and

Double F Limited (“Consol. Pls. Br.”), ECF No. 97. Consolidated plaintiffs object

specifically to the determinations of Commerce regarding: (1) the calculation of the

benchmark prices for face and backboard veneers; and (2) the calculation of the

benchmark price for plywood. Consolidated plaintiffs maintain also that the Remand

Results do not comply with the Court’s remand order, are not supported by substantial

evidence and are otherwise not in accordance with law. 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 __, __, 776 F. Supp.

1 Baroque Timber is a cross-owned affiliate of Riverside Plywood.

3d 1290 (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 and the

ITTO Peru data to calculate the benchmarks for backboard and face veneer; (2)

Commerce’s determination to include the UN Comtrade data to calculate the plywood

benchmark; and (3) Commerce’s application of AFA to find certain of Baroque’s input

suppliers to be government authorities. See id. at __, 776 F. Supp 3d at 1314.

On August 15, 2025, Commerce issued its draft remand redetermination and

provided interested parties with an opportunity to comment. Remand Results at 2. On

September 19, 2025, Commerce issued its final remand results. See id.

On January 30, 2026, consolidated plaintiffs filed their comments on the final

remand results. Consol. Pls. Br. On February 2, 2026, plaintiffs filed their comments on

the final remand results. Pls. Br. On March 20, 2026, defendant United States filed its

response to plaintiffs’ and consolidated plaintiffs’ comments. Def. Cmts. Supporting

Remand Redetermination (“Def. Br.”), ECF No. 104.

On July 8, 2026, the Court heard oral argument. Oral Arg. Tr., ECF No. 113.

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 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.

“[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 benchmarks for veneer is

supported by substantial evidence and otherwise in accordance with law

The court addresses first plaintiffs’ and consolidated plaintiffs’ challenge to

Commerce’s calculation of the veneer benchmark. Specifically, plaintiffs and

consolidated plaintiffs challenge Commerce’s inclusion of the UN Comtrade and ITTO

Peru data because the data do not differentiate between backboard veneer and face

veneer. Pls. Br. at 15-16; Consol. Pls. 8-9.

A. Additional Background

In the Final Results, Commerce determined to calculate separate benchmarks for

backboard veneer and face veneer by averaging data that do not differentiate between

backboard veneer and face veneer with data that do differentiate between two types of

veneer. See IDM at 91-92.

The ITTO Ghana data are differentiated by backboard veneer and face veneer.

The UN Comtrade data and the ITTO Peru data contain both backboard veneer and face veneer and cannot be separated by veneer type. See GDLSK, Riverside

Benchmark Data Submission (Nov. 23, 2022) (“Baroque Benchmark Pricing

Information”) at Ex. 2, CR 101-116, PR 276-286.

To calculate the backboard veneer benchmark, Commerce averaged: (1) the UN

Comtrade veneer data containing both backboard veneer and face veneer; (2) the ITTO

veneer data from Peru containing both types of veneer; and (3) the ITTO data from

Ghana containing only backboard veneer. IDM at 92. To calculate the face veneer

benchmark, Commerce averaged: (1) the UN Comtrade veneer data containing both

types of veneer; (2) the ITTO veneer data from Peru containing both types of veneer;

and (3) the ITTO data from Ghana containing only face veneer. Id.

In Baroque I, plaintiffs argued that Commerce’s inclusion of the UN Comtrade

data was “distortive of both” the face and backboard veneer benchmarks because the

undifferentiated UN Comtrade data would “artificially lower[] one price and artificially

increas[e] the other price.” Baroque I, 776 F. Supp. 3d at 1301. This Court concluded

that Commerce failed to address adequately Baroque’s argument that the UN Comtrade

and the ITTO Peru data were “overly broad and distortive” of the benchmark price as

applied to Baroque’s purchases of both face and backboard veneer. Id. at 1302. The

Court stated also that “[i]f, on remand, Commerce determines that it is unable to

provide” an explanation of the reason that including these data does not distort the

benchmark, “then Commerce is instructed to recalculate the benchmarks for face and

backboard veneer using solely the ITTO Ghana data.” Id. at 1302-03.

On remand, Commerce continued to calculate the face and backboard veneer

benchmarks using the same three data sources. See Remand Results at 18-21.

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,” 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 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).

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

The court concludes that it is not possible to conclude that Commerce’s

determination in the Remand Results that the UN Comtrade and the ITTO Peru data are

sufficiently “comparable” to Baroque’s veneer purchases is supported by substantial

evidence.

In the Remand Results, Commerce stated that both veneer types are

“classifiable under the same HS subheadings” and cannot be separated to support its

decision to include the UN Comtrade and ITTO Peru data in both benchmark

calculations. Remand Results at 21. Commerce also noted consistent with 19 CFR §

351. 511(a)(2)(i) the large dollar amounts of exports underlying the data, stating: “UN

Comtrade data used in the plywood benchmark, are more reflective of a world market

price, encompassing nearly one billion kilograms worth almost $1.5 billion of world

export sales from 75 countries.” Id. at 20. Notably, Commerce did not state “more

reflective” than what other data and most importantly the reasons that the UN Comtrade

data were more reflective on account of the quantities involved. How did those

quantities compare to those of the alternative ITTO database?

Commerce next noted in explaining its choice to include the UN Comtrade and

ITTO Peru data that while there were some variations of prices between face and core

veneer, the variations among countries in the ITTO data from Ghana were even greater.

Id. at 21. Finally, Commerce determined that the UN Comtrade and ITTO Peru data,

which do not differentiate between the two types of veneer—face and core—were

“comparable” to Baroque’s purchases. Id.

Plaintiffs argue that Commerce’s continued inclusion of the UN Comtrade and

ITTO Peru data in the veneer benchmark calculations is unsupported by substantial

evidence and contrary to law because, by “knowingly compar[ing] inputs of different

quality,” Commerce did not adequately account for “prevailing market conditions.” Pls.

Br. at 15.

Commerce has not provided a discernible path for its decision. NMB Sing. Ltd.,

557 F.3d at 1319 (“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.”); Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43

(“We will . . . uphold a decision of less than ideal clarity if the agency's path may

reasonably be discerned.”). On reading and rereading Commerce’s Remand Results,

the court is left only to puzzle over Commerce’s elucidation and analysis.

The core of Commerce’s analysis appears to be announced in a paragraph in the

Remand Results that begins on page 18 and concludes on page 19. In this paragraph,

Commerce first repeats its own conclusion from Commerce’s final results that

“Baroque’s backboard and face veneers differ sufficiently such that they require

separate price benchmarks to most accurately calculate the benefit for the veneer for LTAR [less than adequate remuneration] program.” Remand Results at 18-19 (citations

omitted). Then, Commerce backs into a conclusion announced with nothing less than a

double negative that Commerce intends to use the UN Comtrade data because the

more appropriately separated ITTO data “do[] not necessitate the exclusion of” the UN

Comtrade data.” Id. at 19 (emphasis supplied). Commerce continues with what might

be described as a triple negative: “Put another way, this distinction does not mean that

UN Comtrade data, which do not reflect the differences between backboard and face

veneer, are not still comparable to Baroque’s purchases of both.” Id.

The court remands for Commerce to explain, consistent with 19 U.S.C. §

1677(5)(E)(iv), why the UN Comtrade and ITTO Peru data remain sufficiently

comparable to Baroque's purchases notwithstanding Commerce's finding that face and

backboard veneer differ in price and require separate benchmarks, and why inclusion of

those data is consistent with Commerce’s obligation to account for “prevailing market

conditions,” including “price” and “quality,” as required by 19 U.S.C. § 1677(5)(E)(iv).

If, on remand, Commerce determines that it is unable to provide such an

explanation, then Commerce is instructed to recalculate the benchmarks for face and

backboard veneer using solely the ITTO Ghana data.

II. Whether Commerce’s calculation of the benchmark for plywood is

supported by substantial evidence and otherwise in accordance with law

The court addresses next plaintiffs’ and consolidated plaintiffs’ challenge to

Commerce’s calculation of the plywood benchmark. Both plaintiffs and consolidated

plaintiffs challenge Commerce’s inclusion of non-grade specific UN Comtrade data in

Commerce’s tier two plywood benchmark calculation. See Pls. Br. at 4-13; Consol. Pls.

Br. at 4-8.

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

plywood from approximately 90 countries (“UN Comtrade”). 3 See Wiley, AMMWF

Benchmark Pricing Information (Nov. 22, 2021) at Ex. 1-A, PR 256, 266-275; Husch

Blackwell, Senmao Benchmark Pricing Information (Nov. 22, 2021) at Attachs. 1-3, CR

92-100, PR 257.

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 all grades of plywood (grades A though D). Id.

The ITTO dataset contains only Grade C/CC plywood export prices from Brazil

and Peru during the period of review. 4 See GDLSK, Riverside Benchmark Data

Submission (Nov. 23, 2021) (“Baroque Benchmark Pricing Information”) at Ex. 2, CR

101-116, PR 276-286. The parties agree that Baroque purchased only Grade C and

3 Commerce included also in its plywood benchmark calculation Stats.NZ export data.

See Remand Results at 11-12. In its briefing, plaintiffs refer to the UN Comtrade and the Stats.NZ data collectively as “UN Comtrade” because both “global” datasets “represent export data by HTS code.” Pls. Br. at 2 n.1. Likewise, consolidated plaintiffs do not differentiate between these “global dataset[s]” and refer only to the UN Comtrade dataset. Consol. Pls. Br. at 1. The court does the same. 4 Petitioner provided monthly pricing data for plywood also from Ghana and Malaysia.

However, Commerce excluded the ITTO data from those countries because Commerce agreed with Baroque that “these data do not describe its C/D grade plywood purchases.” Remand Results at 6.

Grade D plywood in the manufacture of its subject merchandise. See Remand Results

at 6.

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, 776 F. Supp. 3d at 1300. Specifically, the Court

remanded for Commerce to consider “supplier certifications, expert testimony, and

various articles and website printouts demonstrating that using data containing higher-

grade plywood prices, such as the UN Comtrade data, would be distortive and

inaccurate.” Id.

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 for plywood

from Brazil and Peru. See Remand Results at 12.

B. 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 from Brazil and Peru—which included grade

C/CC plywood only. See Remand Results at 12. Commerce determined that “the

record evidence does not support a conclusion that the UN Comtrade [benchmark] data are overly broad or result in a distortion of the benchmark price applied to Baroque’s

purchases.” Id. at 11-12. Commerce determined also that the UN Comtrade data are

“sufficiently comparable to Baroque’s purchases and appropriate for use as a

benchmark.” Id. at 12.

Plaintiffs and consolidated plaintiffs present two arguments that Commerce

should have selected only the ITTO data from Brazil and Peru for the plywood

benchmark calculation, rather than averaging the ITTO and the UN Comtrade data.

See Pls. Br. 2-4; Consol. Pls. Br. at 3-4. First, plaintiffs and consolidated plaintiffs argue

that Commerce’s determination “ignore[d] the price distortion caused” by the particular

grades included in the benchmark. Pls. Br. at 11; see also Consol. Pls. Br. at 8 (arguing

that Commerce “failed to adequately address information in the record demonstrating

that the UN Comtrade data are overbroad”). Second, plaintiffs and consolidated

plaintiffs assert that Commerce failed to make “due allowance for factors affecting

comparability” when averaging the UN Comtrade and ITTO datasets. Pls. Br. at 5; see

also Consol Pls. Br. at 5. 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 12-13, but found: the “record evidence does not support a

conclusion that the UN Comtrade [benchmark] data are overly broad or result in a

distortion of the benchmark price” applied to Baroque’s purchases. Remand Results at

28. Commerce provided three reasons for this conclusion.

First, Commerce noted that “species, as well as grade, impacts plywood prices.”

Id. at 17. 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 32,

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, 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 15-16.

“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 and consolidated 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. Pls. Br. at 6;

Consol Pls. Br. at 7. These parties maintain that the ITTO data, which cover C/CC-

grade plywood, are more “specific” to Baroque's C/D-grade plywood purchases than the

UN Comtrade data, which include all plywood grades. Pls. Br. at 9-10; see also Consol.

Br. at 5 (arguing that “[t]he Court ha[d] been unambiguous about the importance of

product-specificity in Commerce’s determination of [the] benchmark dataset”).

Defendant asserts that Commerce is not required to select a “most comparable”

dataset simply “because there is another dataset available.” Def. Br. at 9. 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

in question,” Remand Results at 29, 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 17.

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 17-18 (“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, whereas the species mismatch in the ITTO data was concrete. Id. at 32

(emphasis supplied). Commerce also noted that the relevant data shared the same HS

subheading with Baroque’s plywood purchases. Id. at 17.

Consolidated plaintiffs cite a series of cases involving exports of solar panels

from China for the proposition that Commerce is required to choose only the “most

specific” dataset. See Consol. Pls. Br. at 5 (citing Changzhou Trina Solar Energy Co. v.

United States, __ CIT __, 352 F. Supp. 3d 1316, 1332 (2018) (“Trina Solar I”);

Changzhou Trina Solar Energy Co. v. United States, __ CIT __, 466 F. Supp. 3d 1287,

1294-5 (2020) (“Trina Solar III”)). The court refers to these cases as the Trina Solar

cases. The Trina Solar cases are not apposite.

In Trina Solar I, Commerce averaged product-specific data with broader UN

Comtrade data to calculate a benchmark for aluminum extrusions used in solar

modules. Commerce explained that it included the less product-specific UN Comtrade

data because those data provided monthly, rather than annual, price points. Trina Solar

I, 42 CIT at __, 352 F. Supp. 3d at 1332. The Court determined that Commerce's

preference for monthly data could not overcome “vital comparability concerns” because

“there is no statutory or regulatory basis for allowing this preference to overcome” those

concerns. Id. Specifically, the Court concluded that Commerce failed to account

adequately for the “factors affecting comparability” required under 19 C.F.R. §

351.511(a)(2)(ii). Id.; see also Changzhou Trina Solar Energy Co. v. United States,

2019 WL 5856438, at 6 (CIT Nov. 8, 2019) (‘Trina Solar II”) (finding that Commerce did

not “adequately account[ ] for ‘factors affecting comparability’” as required under 19

C.F.R. § 351.511(a)(2)(ii)).

Unlike in Trina Solar, in the instant case, Commerce considered adequately

factors affecting comparability. As discussed, Commerce considered price, species and

quality in evaluating the relative strengths of the two datasets. “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 finds that it was.

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.

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. 16-22.

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.

1. Administrative proceeding and final results

On March 23, 2021, Commerce issued the GOC an initial questionnaire for the

2019 countervailing duty review. Dept. of Comm., Initial CVD Questionnaire (“Initial

Questionnaire”) (Mar. 23, 2021) at 44, PR 78. 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-41. 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 20, 2021, the GOC submitted its response. GOC, Sec. II Questionnaire

Response (“GOC Initial Questionnaire Response”) (May 20, 2021) at 8, CR 45, PR 115.

In its response, the GOC provided Commerce “company-specific information” for 17

input suppliers, including “articles of incorporation, capital verification reports, company by-laws, business licenses, and financial statements.” IDM at 57. The GOC provided

also “certifications” from eight of 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 August 4, 2021, 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.” Dept. of Comm.,

Section II Supplemental Questionnaire (Aug. 4, 2021) at 9, PR 139.

On August 25, 2021, the GOC provided its response to Commerce’s

supplemental questionnaire. GOC, Supplemental Questionnaire Response (“GOC

Supplemental Questionnaire Response”) (Aug. 25, 2021) at 8, CR 69, PR 154. In the

GOC’s response, the GOC stated that it had “confirmed that, for the 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 16-17.

The GOC provided also “certifications” from eight more input suppliers, bringing

the total number of “certifications” to 17. Id. at 14-17. These “certifications” also stated

that the input suppliers operated independently and are not influenced by the CCP or

other external entities. See id.

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

information needed to assess whether certain of Baroque’s input suppliers are

government authorities. 776 F. Supp. 3d at 1307-08. 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 1307. 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 1307-08. Second, the Court

determined that Commerce explained adequately why supporting government

documentation was necessary in light of Commerce’s statement that “Chinese law requires the establishment of CCP organizations in all companies.” Id. at 1307 (quoting

IDM at 58). 5

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 1308.

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 5 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 58. 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.

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 1310.

3. Remand proceeding and remand results

On June 24, 2025, Commerce issued the GOC a remand questionnaire

regarding 17 of Baroque’s input suppliers that had provided “certifications.” 2019

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, 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 who [sic] 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 2019 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 Pertaining to

Multilayered Wood Flooring from the People’s Republic 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

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 nine of those 17

input suppliers denying the existence of a CCP primary Party organization within their

companies. See id. Ex. RSQ-2. Those nine “certifications” stated that “the number of

CCP 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.” Id. at 8-9.

In response to the second request in Question 3—the request for the “published

biographies in 2019 of all senior staff members of each input producer”—the GOC

stated that it had attempted to collect biographies/resumes from each supplier but was

able to collect resumes from only six of the 17 input suppliers. Id. at 8; see also id. at

Ex. RSQ-2.

Of the remaining 11 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

business and no longer had access to the requested information. 6 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. Five input suppliers

did not provide any biographies or other information responsive to Question 3. Id.; see,

e.g. (one company responding to the GOC: “[i]t is too complicated, there is no way to do

this. And the requested information is for 5-6 years ago. Is there any easier way?”).

And the GOC did not provide responses from the remaining three input suppliers. 7 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 19, 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

6 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. 7 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. RSQ- 2.

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 42.

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).

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 776

F. Supp. 3d. at 1307-08; Remand Results at 23. 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. 776 F. Supp. 3d. at 1309-10. The Court

noted that “Commerce’s questionnaires did not specifically request government

documentation,” id. at 1309, 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 1310.

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. See 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 Results at 25.

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 42.

Plaintiffs argue that the GOC did not withhold responsive government records

because such records do not exist. Pls. Br. at 18-19. 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. 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 24-25. Commerce noted

specifically that it “did not limit the scope of its question” so that the GOC could provide

whatever documentation best supported its claim. Id. at 24 (citing Remand

Questionnaire at 5). Indeed, Commerce underscored in its Remand Results that its

request to the GOC was “intentionally open-ended.” Id. at 39.

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 24. 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 25. Commerce added:

“[g]iven that the CCP Constitution requires that all organizations with enough CCP

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 41 (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). 8

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 19. 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 24-25. Commerce stated that the

GOC could have provided records, for example, from databases “for each of [sic]

8 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.

jurisdictions where the nine entities are located.” Id. at 39-40. 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 40. Commerce

therefore stated that it could only “suggest” examples of responsive records because

“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. 9

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 22-23, 39. 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

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 4.

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 22.

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,

9 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 8.

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

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

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). 10

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

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

10 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.

suppliers themselves. See Yama, 611 F. Supp. 3d at 1404-05 (GOC provided no POR-

specific 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 4.

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

determine whether CCP members or government officials are present in those

suppliers. The ordinary meaning of the word “relevant” informs this inquiry. Merriam-

Webster 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 22. 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 21.

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)—

“lack particular details for examining possible government involvement in each

company.” Remand Results at 38.

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.” 776 F. Supp. 3d. at 1307. 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. 11

11 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.

On Remand, however, the GOC provided “certifications” from nine 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. 12 The GOC submitted also biographies and/or identification

cards for the individual shareholders, directors and managers of six input suppliers to

support the suppliers’ representations to the GOC that those individuals are not CCP

members. Id. 13 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 38.

Commerce did not explain why these “certifications” were “pro forma in nature” or

12 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 8 n.46. 13 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.

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.

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 37-38. On that basis,

Commerce asserted also that “verification of such [private] information without the

necessary corroborating government documentation would be pointless.” Id. at 38.

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. at 37-38.

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 23-24 (citing Memorandum, “Public Bodies

Analysis Memo,” dated Oct. 5, 2021, 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”), at 28-29, 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

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

36. 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 36. 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 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).

(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 37. 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 23.

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. at 23-24 (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

involvement may facilitate government control over private enterprises. 14 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

14 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.

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

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. (citation 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

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 38, including what particular details are lacking and why those details are necessary to Commerce’s analysis. 15 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

15 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).

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

23, 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 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 private-

company 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 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 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 37-38, 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 21. 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, 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. 16

(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.

16 Question 3 of the Remand Questionnaire, for example, specifically requested

“published biographies in 2019 of all senior staff members of each input producer, including, but not limited to executive directors, managing directors, etc.” Remand Questionnaire at 5.

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 benchmarks for veneer is

remanded for further explanation; it is further

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 9, 2026

New York, New York