Baroque Timber Indus. (Zhongshan) Co. v. United States
CourtUnited States Court of International Trade
Date FiledOctober 20, 2026
Docket23-00136
JudgeReif
StatusPublished
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Full Opinion
Slip Op. 26-129
UNITED STATES COURT OF INTERNATIONAL TRADE
BAROQUE TIMBER INDUSTRIES
(ZHONGSHAN) CO., LTD. AND
RIVERSIDE PLYWOOD
CORPORATION,
Plaintiffs, Before: Timothy M. Reif, Judge
v. Court No. 23-00136
UNITED STATES,
Defendant.
OPINION AND ORDER
[Sustaining in part and remanding in part Commerce’s remand redetermination in the
tenth administrative review of the countervailing duty order covering multilayered wood
flooring from the People’s Republic of China.]
Dated: October 20, 2026
Andrew T. Schutz, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of
Washington, D.C., argued for plaintiffs Baroque Timber Industries (Zhongshan) Co., Ltd.
and Riverside Plywood Corporation. With him on the brief were Jordan C. Kahn and
Michael S. Holton.
Brendan D. Jordan, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, D.C., argued for the United States. Also on the
brief were Brett A. Shumate, Assistant Attorney General, Patricia M. McCarthy, Director
and Tara K. Hogan, Assistant Director. Of counsel was JonZachary Forbes, Office of the
Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce,
of Washington, D.C.
***
Court No. 23-00136 Page 2
Reif, Judge: Before the court are the remand results of the U.S. Department of
Commerce (“Commerce”) concerning the tenth administrative review of the
countervailing duty (“CVD”) order on multilayered wood flooring (“MLWF” or “subject
merchandise”) from the People’s Republic of China (“China”) for the period of review
(“POR”) January 1 through December 31, 2020. Final Results of Redetermination
Pursuant to Court Remand (“Remand Results”), ECF No. 48; see also Multilayered
Wood Flooring from the People's Republic of China: Final Results and Partial
Rescission of Countervailing Duty Administrative Review; 2020 (“Final Results”), 88
Fed. Reg. 34,828 (Dep't of Commerce May 31, 2023) and accompanying Issues and
Decision Memorandum (“IDM”) (Dep’t of Commerce May 24, 2023).
Baroque Timber Industries (Zhongshan) Co., Ltd., and Riverside Plywood
Corporation (collectively, “Baroque” or “plaintiffs”) 1 challenge certain aspects of the
Remand Results. Pls. Cmts. Opposing Remand Redetermination (“Pls. Br.”), ECF No.
59. Plaintiffs object specifically to the determinations of Commerce regarding: (1) the
calculation of the benchmark price for plywood; and (2) the use of adverse facts
available (“AFA”) to find that Baroque’s input suppliers are government authorities. See
id.
For the reasons discussed below, the court sustains in part and remands in part
the Remand Results.
BACKGROUND
The court presumes familiarity with the facts as set out in Baroque Timber
Industries (Zhongshan) Co. v. United States (“Baroque I”), 49 CIT __, __, 766 F. Supp.
1
Baroque Timber is a cross-owned affiliate of Riverside Plywood.
Court No. 23-00136 Page 3
3d 1296 (2025), and recounts only those facts relevant to the issues before the court on
remand.
On April 3, 2025, the Court concluded that Commerce did not explain
adequately: (1) Commerce’s determination to include the UN Comtrade data to
calculate the plywood benchmark; and (2) Commerce’s application of AFA to find
certain of Baroque’s input suppliers to be government authorities. See id. at __, 766 F.
Supp 3d at 1314.
On August 22, 2025, Commerce issued its draft remand redetermination and
provided interested parties with an opportunity to comment. Remand Results at 2. On
September 24, 2025, Commerce issued its final remand results. See id.
On February 2, 2026, plaintiffs filed their comments on the final remand results.
Pls. Br. On March 27, 2026, defendant United States filed its response to plaintiffs’
comments. Def. Cmts. Supporting Remand Redetermination (“Def. Br.”), ECF No. 63.
On July 8, 2026, the Court heard oral argument. Oral Arg. Tr., ECF No. 72.
JURISDICTION AND STANDARD OF REVIEW
28 U.S.C. § 1581(c) grants to this Court “exclusive jurisdiction of any civil action
commenced under section 516A or 517 of the Tariff Act of 1930.” The court exercises
jurisdiction pursuant to 28 U.S.C. §1581(c).
Section 516A of the Tariff Act of 1930 provides that in an action under 19 U.S.C.
§ 1516a(a)(2), the court will hold unlawful any determination, finding or conclusion that
Court No. 23-00136 Page 4
is “unsupported by substantial evidence on the record, or otherwise not in accordance
with law.” 2 19 U.S.C. § 1516a(b)(1)(B)(i).
“Substantial evidence is more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Consol. Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229 (1938) (citations
omitted). “The substantiality of evidence must take into account whatever in the record
fairly detracts from its weight." Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488
(1951).
For a reviewing court to “fulfill [its] obligation” to determine whether a
determination of Commerce is supported by substantial evidence and in accordance
with law, Commerce is required to “examine the record and articulate a satisfactory
explanation for its action.” CS Wind Viet. Co. v. United States, 832 F.3d 1367, 1376
(Fed. Cir. 2016) (quoting Yangzhou Bestpak Gifts & Crafts Co. v. United States, 716
F.3d 1370, 1378 (Fed. Cir. 2013)).
Even so, the court will “uphold a decision of less than ideal clarity if the agency’s
path may reasonably be discerned.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Bowman Transp., Inc. v. Ark.-
Best Freight Sys., Inc., 419 U.S. 281, 286 (1974)); see also NMB Sing. Ltd. v. United
States, 557 F.3d 1316, 1319 (Fed. Cir. 2009) (“Commerce must explain the basis for its
decisions; while its explanations do not have to be perfect, the path of Commerce’s
decision must be reasonably discernable to a reviewing court.”).
2 Further citations to the Tariff Act of 1930, as amended, are to the relevant portions of
Title 19 of the U.S. Code, 2018 edition.
Court No. 23-00136 Page 5
“[T]he Court will not disturb an agency determination if its factual findings are
reasonable and supported by the record as a whole, even if there is some evidence that
detracts from the agency’s conclusion.” Shandong Huarong Gen. Corp. v. United
States, 25 CIT 834, 837, 159 F. Supp. 2d 714, 718 (2001), aff’d sub nom., Shandong
Huarong Gen. Grp. Corp. v. United States, 60 F. App’x 797 (Fed. Cir. 2003).
On remand, the Court will sustain Commerce’s determinations “if they are in
accordance with the remand order, are supported by substantial evidence, and are
otherwise in accordance with law.” MacLean-Fogg Co. v. United States, 39 CIT __, __,
100 F. Supp. 3d 1349, 1355 (2015).
DISCUSSION
I. Whether Commerce’s calculation of the benchmark for plywood is
supported by substantial evidence and otherwise in accordance with law
The court addresses first plaintiffs’ challenge to Commerce’s calculation of the
plywood benchmark. Plaintiffs challenge Commerce’s inclusion of non-grade specific
UN Comtrade data in Commerce’s tier two plywood benchmark calculation. See Pls. Br.
at 2-13.
A. Additional Background
In the Final Results, Commerce determined to calculate a benchmark price for
plywood by taking an average of two datasets in the record: a dataset from the
International Tropical Timber Organization (“ITTO”) containing plywood data from Brazil
and Peru and a global dataset from the United Nations Comtrade database containing
Court No. 23-00136 Page 6
plywood from approximately 97 countries (“UN Comtrade”). 3 Remand Results at 25;
see also Baroque I, 766 F. Supp. 3d at 1302.
The plywood market is categorized into grades ranging from Grade A (highest
quality) through Grades B and C, to Grade D (lowest quality), and also includes hybrid
grades such as AA/BB or C/CC. The UN Comtrade data are not grade-specific,
meaning that they cover “multiple grades of plywood.” Remand Results at 11. The
ITTO dataset contains only Grade C/CC plywood export prices from Brazil and Peru
during the period of review. See Letter from Grunfeld, Desiderio, Lebowitz, Silverman,
& Klestadt LLP to Secretary of Commerce Pertaining to Riverside Plywood and Baroque
Benchmark Submission (Oct. 11, 2022), Ex. 2B, PR 291-295. The parties agree that
Baroque purchased only Grade C/D plywood in the manufacture of its subject
merchandise. See Remand Results at 11; see also Pls. Br. at 4 (confirming that
Baroque purchased only Grade C/D plywood during the period of review).
In Baroque I, this Court remanded to Commerce to explain adequately its
decision to include the UN Comtrade data in its plywood benchmark calculation in light
of “the information in the record demonstrating that the UN Comtrade data are
overbroad and, on that basis, may not be comparable for purposes of the plywood
benchmark calculation.” Baroque I, 766 F. Supp. 3d at 1304. Specifically, the Court
remanded for Commerce to “use solely the ITTO grade-specific data in its plywood
benchmark calculation or explain” why “inclusion of the UN Comtrade data [did] not
3 Commerce included also in its plywood benchmark calculation Stats.NZ export data.
See Remand Results at 25. In its briefing, plaintiffs refer to the UN Comtrade and the
Stats.NZ data collectively as “UN Comtrade.” Pls. Br. at 2 n.1. The court does the
same.
Court No. 23-00136 Page 7
produce a fatally distortive benchmark” and why a benchmark based solely on the ITTO
data would not satisfy “Commerce’s statutory and regulatory requirements.” Id. at 1306.
On remand, Commerce continued to calculate the tier two benchmark price for plywood
by taking an average of the UN Comtrade data and the ITTO data. See Remand
Results at 10-16.
B. Legal framework
A countervailing duty is “a remedial measure that provides relief to domestic
manufacturers by imposing duties upon imports of comparable foreign products that
have the benefit of a subsidy from the foreign government.” Fine Furniture (Shanghai)
Ltd. v. United States, 748 F.3d 1365, 1368 (Fed. Cir. 2014). The countervailing duty
imposed shall be “equal to the amount of the net countervailable subsidy.” 19 U.S.C. §
1671(a).
A subsidy is countervailable if: (1) a government or public authority has provided
a financial contribution; (2) a benefit is thereby conferred upon the recipient of the
financial contribution; and (3) the subsidy is specific to a foreign enterprise or foreign
industry, or a group of such enterprises or industries. 19 U.S.C. § 1677(5).
A benefit is conferred where “goods or services are provided for less than
adequate remuneration [‘LTAR’],” which is “determined in relation to prevailing market
conditions for the good . . . which is subject to the investigation or review.” Id. §
1677(5)(E)(iv). Prevailing market conditions include “price, quality, availability,
marketability, transportation, and other conditions of purchase or sale.” Id. To
determine whether goods were provided for less than adequate remuneration,
“Commerce must determine the proper benchmark price.” Essar Steel Ltd. v. United
Court No. 23-00136 Page 8
States, 678 F.3d 1268, 1273 (Fed. Cir. 2012) (citing 19 C.F.R. § 351.511). The
benchmark price is “the price that could have constituted adequate remuneration.” Fine
Furniture, 748 F.3d at 1368.
To measure the adequacy of remuneration, Commerce “compares the
respondent’s reported costs for the input in question . . . with the calculated benchmark
price, which is representative of the market price for the good at issue.” Beijing Tianhai
Indus. Co. v. United States, 39 CIT __, __, 52 F. Supp. 3d 1351, 1356 n.9 (2015) (citing
Fine Furniture, 748 F.3d at 1368). Under 19 C.F.R. § 351.511(a)(2), Commerce sets
forth the “bases for identifying an appropriate market-based benchmark for measuring
the adequacy of the remuneration of a government provided good or service.” Id.
In order of preference, the potential benchmarks are as follows:
(1) market prices from actual transactions within the country under
investigation for the government-provided good (e.g., actual sales, actual
imports, or competitively run government auctions) (“tier one” benchmarks);
(2) world market prices that would be available to purchasers in the country
under investigation (“tier two” benchmarks); or (3) prices consistent with
market principles based on an assessment by the Department of the
government-set price (“tier three” benchmarks).
Id. (citing High Pressure Steel Cylinders from the People’s Republic of China, 76
Fed. Reg. 64,301, 64,304 (Dep't of Commerce Oct. 18, 2011)).
If there is no tier one benchmark—defined as a “useable market-determined
price with which to make the comparison”—then Commerce will calculate a tier two
benchmark that “measure[s] the adequacy of remuneration by comparing the
government price to a world market price where it is reasonable to conclude that such
price would be available to purchasers in the country in question.” 19 C.F.R. §
351.511(a)(2)(ii).
Court No. 23-00136 Page 9
In calculating a tier two benchmark, if “there is more than one commercially
available world market price,” Commerce is required to “average such prices to the
extent practicable, making due allowance for factors affecting comparability.” Id.
“These factors ensure that the composite benchmark reflects prevailing market
conditions in the [producer’s] home country. [The factors] include ‘price, quality,
availability, marketability, transportation, and other conditions of purchase or sale.’”
RZBC Grp. Shareholding Co. v. United States, 39 CIT __, __, 100 F. Supp. 3d 1288,
1305 (2015) (citing 19 U.S.C. § 1677(5)(E)).
“The court’s role is not to assess whether the benchmark data Commerce used
was [sic] the ‘best available,’ but rather whether Commerce's choice was reasonable.”
Guizhou Tyre Co. v. United States, 42 CIT __, __, 348 F. Supp. 3d 1261, 1274 (2018)
(citing Peer Bearing Company-Changshan v. United States, 27 CIT 1763, 1770, 298 F.
Supp. 2d 1328, 1336 (2003)).
C. Analysis
For the reasons discussed below, the court concludes that Commerce's decision
to average the UN Comtrade and ITTO data in calculating the plywood benchmark is
supported by substantial evidence and otherwise in accordance with law.
In the Remand Results, Commerce continued to calculate the tier two benchmark
price for plywood by taking an average of the UN Comtrade data—which included all
grades of plywood—and the ITTO data—which included grade C/CC plywood only. See
Remand Results at 10-16. Commerce determined that “the record evidence does not
support a conclusion that the [UN Comtrade] data result in a distortion of the benchmark
price applied to Baroque’s purchases.” Id. at 11-12. Commerce determined also that
Court No. 23-00136 Page 10
the UN Comtrade data are “sufficiently comparable” to Baroque’s purchases and
appropriate for use as a benchmark. Id. at 26.
Plaintiffs present two arguments that Commerce should have selected only the
ITTO data for the plywood benchmark calculation, rather than averaging the ITTO and
the UN Comtrade data. Pls. Br. at 3-13. First, plaintiffs argue that Commerce’s
determination “ignore[d] the price distortion caused” by the particular grades included in
the benchmark. Id.. at 11. Second, plaintiffs assert that Commerce failed to make “due
allowance for factors affecting comparability” when averaging the UN Comtrade and
ITTO datasets. Id. at 5 (citing 19 C.F.R. § 351.511(a)(2)). The court addresses each
argument in turn.
1. Commerce’s decision to include the UN Comtrade data is
based on substantial evidence
Commerce in the Remand Results acknowledged the impact of grade on price,
Remand Results at 15, but found: the “record evidence does not support a conclusion
that the UN Comtrade [benchmark] data result in a distortion of the benchmark price
applied to Baroque’s purchases.” Id. at 11-12. Commerce provided three reasons for
this conclusion. Id. at 10-15, 21-28.
First, Commerce noted that the record demonstrates that “species, as well as
grade, impacts plywood prices.” Id. at 15. Second, Commerce determined that,
although grade affects plywood prices, “the evidence does not indicate the magnitude of
the effect of grade on price,” id. at 28, and record evidence suggested that differences in
price based on grade were “relatively minor.” Id. Finally, Commerce determined that,
absent evidence regarding the exact grade composition of the UN Comtrade data,
Court No. 23-00136 Page 11
Commerce could not conclude that any price difference between the UN Comtrade data
and Baroque’s plywood purchases was attributable entirely to grade. Id. at 12, 23.
“The court’s role is not to assess whether the benchmark data Commerce used
was [sic] the ‘best available,’ but rather whether Commerce's choice was reasonable.”
Guizhou Tyre, 348 F. Supp. 3d at 1274. The court declines to substitute its judgment for
that of Commerce. Accordingly, Commerce’s decision to include the UN Comtrade data
in the benchmark calculation is based on substantial evidence.
2. Commerce’s decision to include the UN Comtrade data is not
contrary to law
Next, plaintiffs argue that, instead of averaging the UN Comtrade and ITTO data,
Commerce should have relied exclusively on the ITTO data because that dataset is
more product-specific to Baroque's purchases. See Pls. Br. at 9. Plaintiffs maintain that
the ITTO data, which cover grades B through C plywood, see Remand Results at 13,
are more “specific” to Baroque's C/D-grade plywood purchases, see Pls. Br. at 9;
Remand Results at 12, than the UN Comtrade data, which include all plywood grades.
Remand Results at 9-12. Defendant asserts that Commerce is not required to select a
“most comparable” dataset simply “because there is another dataset available.” Def. Br.
at 8. Defendant maintains also that, “[e]ven so, Commerce reasonably considered
record evidence and found that the UN Comtrade data was [sic] not necessarily less
comparable than the ITTO data.” Id.
The statute provides clear guidance on how to determine a tier two benchmark.
First, as a threshold matter, Commerce is required to identify whether there is more than
one commercially available world market price in the record. To do so, Commerce
“considers the similarity of the purchases in the benchmark information to the purchases
Court No. 23-00136 Page 12
in question,” Remand Results at 25, by considering “prevailing market conditions” such
as “price” and “quality.” 19 U.S.C. § 1677(5)(E)(iv)).
With respect to this first step, Commerce expressly considered the factors
affecting comparability—including “‘price, quality, availability, marketability,
transportation, and other conditions of purchase or sale,’” RZBC Grp. Shareholding Co.,
100 F. Supp. 3d at 1305 (citing 19 U.S.C. § 1677(5)(E))—and determined that the UN
Comtrade data were “arguably more comparable to Baroque's reported purchases” than
the ITTO data in certain respects. Remand Results at 14. For example, Commerce
determined that species of wood affects both price and quality and that the UN
Comtrade data were more species-specific than the ITTO data to Baroque's reported
plywood purchases. Id. at 15 (“none of the [ITTO] data are [sic] for plywood made of
eucalyptus, which is the species of Baroque’s reported plywood purchases”).
Commerce added that while both species and grade affect price, the record did not
establish the “magnitude” or composition of the alleged grade distortion, see id. at 28,
whereas the species mismatch in the ITTO data was concrete. Id. at 15 (emphasis
supplied). Commerce also noted that the relevant data shared the same HS
subheading with Baroque’s plywood purchases. Id. at 25.
Finally, the regulation provides that if there is more than one available world
market price, Commerce “will average such prices to the extent practicable, making due
allowance for factors affecting comparability.” 19 C.F.R. § 351.511(a)(2)(ii). Commerce
took this step. For the aforementioned reasons, Commerce’s decision is not contrary to
law and the court sustains Commerce’s benchmark calculation for plywood.
Court No. 23-00136 Page 13
III. Whether Commerce’s application of AFA to find certain of Baroque’s input
suppliers to be government authorities was supported by substantial
evidence and otherwise in accordance with law
A. Additional background
The court addresses next plaintiffs’ challenge to Commerce’s application of AFA
to find certain of Baroque’s input suppliers to be government authorities.
On Remand, Commerce continued to find that the Government of China (“GOC”)
did not act to the best of its ability in responding to Commerce’s requests for information
about the ownership of the companies that produced and supplied inputs to Baroque.
Specifically, plaintiffs argue that Commerce's application of AFA was unlawful because:
(1) Commerce did not explain adequately its determinations that the GOC withheld
responsive government documentation and failed to cooperate to the best of its ability;
and (2) Commerce failed to explain adequately why the withheld government
documentation—rather than other available non-government information—was required
such that it was appropriate for Commerce to apply AFA to a cooperating respondent.
See Pls. Br. 13-20.
For the reasons set forth below, the court concludes that Commerce determined
reasonably that the GOC failed to provide the requested information regarding whether
certain of Baroque's input suppliers are government authorities. The court concludes,
however, that Commerce did not explain adequately why available non-government
information could not fill the resulting gap before applying AFA against plaintiffs.
Accordingly, the court remands to Commerce to take the actions as set forth below.
Court No. 23-00136 Page 14
1. Administrative proceeding and final results
On March 14, 2022, Commerce issued the GOC an initial questionnaire for the
2020 countervailing duty review. See Letter from U.S. Department of Commerce to
Embassy of the People's Republic of China Pertaining to Government of China's Initial
Questionnaire (Mar. 14, 2022) (“Initial Questionnaire”), PR 65. In the Initial
Questionnaire, Commerce asked the GOC for certain records to determine whether
Baroque’s input suppliers are government authorities. Id. Commerce asked the GOC
to “identify any individual owners, members of the board of directors, or senior
managers who were Government or CCP officials during the POR.” Id. at II-37.
Commerce noted that “these questions do not pertain to general membership in the
CCP.” Id. Commerce requested also certain other records that would demonstrate the
input suppliers were free from government influence. See id.
On May 11, 2022, the GOC submitted its response to Commerce’s Initial
Questionnaire. See Response from DeKieffer & Horgan to Secretary of Commerce
Pertaining to Government of China's Section II Questionnaire Response (May 11, 2022)
(“GOC Initial Questionnaire Response”), CR 35-54, PR 93-102. In its response, the
GOC provided Commerce “company-specific information” for sixteen input suppliers,
including “articles of incorporation, capital verification reports, company by-laws,
business licenses, and financial statements.” IDM at 32. The GOC provided also
Court No. 23-00136 Page 15
“certifications” from the input suppliers that read:
All decisions and operations of the company are made independently, internally by
the company, and not subject to any external interference by any third-party
organizations, institutions, individuals, etc. Even If [sic] the company has
established the primary [P]arty organization, the [P]arty organization does not
participate in the company's daily operation and management. Even if the
company's shareholders, directors, managers and other senior managers are the
representatives of the People's Congresses and the CPPCC at all levels, their
status will not affect the company's internal operation and management.
See GOC Initial Questionnaire Response, Ex. LTAR 2.
On June 23, 2022, Commerce issued the GOC a supplemental questionnaire in
which it repeated the request for the GOC to “identify which owners, managers, and
directors, were Chinese government or CCP officials during the POR.” U.S. Department
of Commerce to DeKieffer & Horgan Pertaining to Government of China's Supplemental
Questionnaire (June 23, 2022) (“Supplemental Questionnaire”) at 7, CR 70, PR 119.
On July 14, 2022, the GOC provided its response to Commerce’s supplemental
questionnaire. See Response from DeKieffer & Horgan to Secretary of Commerce
Pertaining to Government of China Supplemental Questionnaire Response (July 14,
2022) (“GOC Supplemental Questionnaire Response”), CR 73-77, PR 227. In the
GOC’s response, the GOC stated that it had “confirmed that, for those companies that
the GOC was able to collect and submit requested documents . . . all of the owners,
directors or managers were not Chinese Government or CCP officials during the [period
of review].” Id. at 10.
2. Baroque I
In Baroque I, this Court held that “Commerce determined reasonably that
necessary information was missing from the record” because the GOC failed to provide
Court No. 23-00136 Page 16
information needed to assess whether certain of Baroque’s input suppliers are
government authorities. 766 F. Supp. 3d at 1309-11. The Court upheld Commerce’s
determination for two reasons.
First, the Court determined that Commerce explained adequately why the
“certifications” provided by the input suppliers denying GOC or CCP involvement were
insufficient. Id. at 1309-10. Specifically, the Court concluded that Commerce
determined reasonably that the company “certifications” did not definitively deny GOC
or CCP involvement and that the “internal company statements” and “verbal
affirmations” offered to support the suppliers’ independence from GOC or CCP control
were insufficient to substantiate those certifications. Id. at 1310-11. Second, the Court
determined that Commerce explained adequately why supporting government
documentation was necessary in light of Commerce’s statement that “Chinese law
Court No. 23-00136 Page 17
requires the establishment of CCP organizations in all companies.” Id. at 1310 (quoting
IDM at 57). 4
However, the Court held that Commerce’s application of AFA to find that certain
of Baroque’s input suppliers are government authorities was not in accordance with law
because Commerce did not provide the GOC with “adequate notice and an opportunity
to remedy its deficient responses, as required by 19 U.S.C. § 1677m(d).” Id. at 1311.
Therefore, the Court remanded for Commerce to:
(1) identify with specificity the deficiencies in the GOC’s initial or supplemental
responses to the nine entities, CCP officials and other related questions; (2)
describe clearly the nature of each deficiency and what information could correct
that deficiency; (3) if Commerce continues to determine that supporting
4 In the IDM Commerce cites Certain Metal Lockers and Parts Thereof from the
People's Republic of China: Final Affirmative Countervailing Duty Determination, 86
Fed. Reg. 35,741 (Dep't of Commerce July 7, 2021) and accompanying IDM (Dep't of
Commerce June 28, 2021) at cmt. 5 (“Metal Lockers”), in support of its statement that
Chinese law “requires” the establishment of CCP organizations in all companies. See
IDM at 57. Metal Lockers, in turn, cites a 2012 memorandum for that proposition. See
Metal Lockers at cmt. 5 (citing Section 129 Determination of the Countervailing Duty
Investigation of Circular Welded Carbon Quality Steel Pipe; Light-Walled Rectangular
Pipe and Tube; Laminated Woven Sacks; and Off-the-Road Tires from the People’s
Republic of China: An Analysis of Public Bodies in the People’s Republic of China in
Accordance with the WTO Appellate Body’s Findings in WTO DS379,” dated May 18,
2012 (“2012 Public Bodies Memo”). The 2012 Public Bodies Memo, however,
describes the 2006 Company Law inconsistently on this point. See 2012 Public Bodies
Memo at 33-37. At one point, the Memo states that “[t]he 2006 Company Law . . .
states that an organization of CCP shall be set up in all companies.” Id. at 35 (citing
Article 19 of the 2006 Company Law) (emphasis supplied). Elsewhere, however, the
Memo quotes Article 19 of the 2006 Company Law as providing that the CCP “may,
according to the Constitution of the Chinese Communist Party, establish its branches in
companies,” and characterizes Article 19 as affirming the Party’s “right” to establish
Party committees in public and private enterprises. Id. at 9, 33 & n.140. Accordingly, on
remand, Commerce shall: (1) clarify whether Article 19 requires the establishment of a
CCP organization in every company or instead permits the CCP to establish such an
organization; and (2) explain the extent to which the difference between these two
interpretations of the Chinese legal instrument affects the ability of Commerce to rely
upon the representations presented by the GOC in this case.
Court No. 23-00136 Page 18
government documentation is necessary information, request that information
explicitly from the GOC; and (4) provide the GOC an opportunity to remedy any
specified deficiencies.
Id. at 1314.
3. Remand proceeding and remand results
On June 24, 2025, Commerce issued the GOC a remand questionnaire
regarding 16 of Baroque’s input suppliers that had provided “certifications.” 2020
Countervailing Duty Administrative Review of Multilayered Wood Flooring from the
People’s Republic of China: Supplemental Questionnaire Pursuant to Ct. Remand
(“Remand Questionnaire”) (June 24, 2025) at 4-5, PRR 1.
Question 1 of the Remand Questionnaire asked for “government documentation,
such as CCP records, supporting the GOC’s claim that no individual owners, members
of the board of directors, or senior managers were Government or CCP officials during
the POR.” Id. at 5. Question 3 of the Remand Questionnaire asked the GOC to
provide, for each input supplier: (1) “documentation to establish how they confirmed
none of their senior staff were members of the CCP”; and (2) “published biographies in
2020 of all senior staff members of each input producer, including, but not limited to
executive directors, managing directors, etc.” Id. at 5-6.
On July 11, 2025, the GOC provided its remand questionnaire response to
Commerce. See Response from The Inter-Global Trade Law Group PLLC, Government
of China Remand Supplemental Questionnaire (“GOC Remand Questionnaire
Response”) (July 11, 2025), PRR 8.
In response to Question 1—the request for “government documentation”
confirming that “no individual owners, members of the board of directors, or senior
Court No. 23-00136 Page 19
managers . . . were Government or CCP officials during the POR”—the GOC stated that
it had “no central governmental database to search for the requested information” and
that the GOC’s “commerce administration does not require companies to provide such
government information.” Id. at 4. Therefore, the GOC stated that it could not “provide
the government documentation as requested by the Department.” Id. Instead of
government documentation, the GOC submitted “certifications” from 10 of those 16
input suppliers denying the existence of a CCP primary Party organization within their
companies. See id. Ex. RSQ-2. Those 10 “certifications” stated that “the number of
[P]arty members [in the company] is less than three” and that, accordingly, “there is no
primary Party organization within the company.” See id. Ex. RSQ-2.
In response to the first request in Question 3—the request for “documentation to
establish how [each input supplier] confirmed none of their senior staff were members of
the CCP”—the GOC stated that “[o]nce a new employee was hired, the personal
information of the employees, including whether they are CCP members, would
normally be provided to the Human Resources department of the company.” GOC
Remand Questionnaire at 9. In response to the second request in Question 3—the
request for the “published biographies in 2020 of all senior staff members of each input
producer”—the GOC collected resumes from only seven of the 16 input suppliers. Id. at
9; see also id. at Ex. RSQ-2.
Of the remaining nine input suppliers that did not provide biographies, one input
supplier provided photocopies of the identification cards of the supplier’s upper-level
officials in an attempt to demonstrate that none was a Chinese national. See id. at Ex.
RSQ-2. Two input suppliers responded stating that their companies had gone out of
Court No. 23-00136 Page 20
business and no longer had access to the requested information. 5 Id. Instead, those
suppliers provided signed declarations stating that: “None of the executives such as
individual shareholders, executive directors and managers of the Company was the
officers [sic] of the Communist Party of China, National People’s Congress, Chinese
People’s Political Consultative Conference or the government.” Id. And the GOC did
not provide responses from the remaining six input suppliers. 6 See id. The GOC
submission does not state whether the GOC (a) did not seek responses from these
companies, (b) sought but did not receive responses, or (c) sought and received
responses, but chose not to submit them to Commerce. Id.
On September 25, 2025, Commerce issued its Remand Results. In the Remand
Results, Commerce continued to apply facts otherwise available with an adverse
inference to find “that CCP officials are present in each of Baroque’s privately-owned
input producers as individual owners, managers, and members of the boards of
directors, and that this gives the CCP, as the Government, meaningful control over the
companies and their resources.” Remand Results at 37-38.
5 One company said it was terminated in 2024.GOC Remand Questionnaire
Response, Ex. RSQ-2. Another said it was terminated on June 1, 2025. Id.
6 Missing from the remand record are either responses from, or evidence of a failed
attempt by the GOC to reach out to the remaining three suppliers. See id. at Ex. RSQ-
2.
Court No. 23-00136 Page 21
B. Analysis
1. Whether Commerce determined reasonably that the GOC withheld
requested information and failed to cooperate to the best of its
ability
a. Legal framework
A countervailable subsidy may be found where the entity providing the subsidy is
an “authority.” 19 U.S.C. § 1677(5)(B). An “authority” is defined as “a government of a
country or any public entity within the territory of the country.” Id.
Commerce may make determinations on the basis of the facts otherwise
available whenever “necessary information is not available on the record” or “an
interested party or any other person”: (1) withholds information requested by
Commerce; (2) fails to submit such information on time or in the form and manner
requested by Commerce; (3) significantly impedes the proceedings; or (4) provides
information that Commerce is unable to verify. 19 U.S.C. § 1677e(a); see also 19
C.F.R. § 351.308(a).
In selecting from facts otherwise available, Commerce may use an inference that
is adverse to the interests of a party “if [that] party has failed to cooperate by not acting
to the best of its ability to comply with a request for information.” 19 U.S.C. §
1677e(b)(1)(A); see also 19 C.F.R. § 351.308(c). A respondent's failure to cooperate to
“the best of its ability” is determined by “assessing whether [the] respondent has put
forth its maximum effort to provide Commerce with full and complete answers to all
inquiries in an investigation.” Nippon Steel Corp. v. United States, 337 F.3d 1373, 1382
(Fed. Cir. 2003).
Court No. 23-00136 Page 22
b. Application of legal framework
The court addresses first whether Commerce determined reasonably that the
GOC: (1) withheld requested government information as to whether any of the input
suppliers’ “owners, members of the board of directors or managers” are GOC or CCP
officials; and (2) failed to cooperate to the best of its ability in responding to Commerce’s
request.
In Baroque I, the Court determined that it was reasonable for Commerce to
decide to rely on government documentation to make the finding noted above. See 766
F. Supp. 3d. at 1309-11. However, in that proceeding, plaintiffs argued that Commerce
had failed to provide the GOC with notice and an opportunity to remedy its deficient
responses, as required by 19 U.S.C. § 1677m(d), by not explicitly requesting such
government documentation. Id. at 1311-14. The Court noted that “Commerce’s
questionnaires did not specifically request government documentation,” id. at 1313, and
determined that Commerce failed to provide the GOC with adequate notice that
Commerce sought supporting government documentation demonstrating that the input
suppliers’ owners, directors and senior managers are not government officials. Id. at
1314.
On remand, Commerce followed the Court’s instruction and explicitly requested
supporting government do