RESTANI, Judge:
This matter comes before the court following its decision in Qingdao Taifa Grp. Co. v. United States, 760 F.Supp.2d 1379, 1380 (CIT 2010) ("Taifa III"), in which the court remanded the Final Results of Redetermination Pursuant to Court Remand (Dep't Commerce July 27, 2010) (Docket No. 118) ("Second Remand Results") on Hand Trucks and Certain Parts Thereof from the People's Republic of China; Final Results of 2005-2006 Administrative Review, 73 Fed.Reg. 43,684 (Dep't Commerce July 28, 2008) ("Final Results") to the United States Department of Commerce ("Commerce"). For the reasons stated below, the court sustains Commerce's third remand results.
The facts of this case have been well documented in the court's previous three opinions. See Taifa III, 760 F.Supp.2d at 1381-82; Qingdao Taifa Grp. Co. v. United States, 710 F.Supp.2d 1352, 1353-55 (CIT 2010) ("Taifa II"); Qingdao Taifa Grp. Co. v. United States, 637 F.Supp.2d 1231, 1234-36 (CIT 2009) ("Taifa I"). The court presumes familiarity with those decisions, but briefly summarizes the facts relevant to this opinion.
Plaintiff Qingdao Taifa Group Co., Ltd. ("Taifa") challenged the final results of an administrative review of the antidumping ("AD") duty order on hand trucks and certain parts thereof from the People's Republic of China ("PRC"), which assigned Taifa the PRC-wide dumping margin
In its first remand results, Final Results of Redetermination Pursuant to
In its Second Remand Results, "Commerce found that Taifa had not established a legitimate separation from the town government and applied a `presumption' that a respondent in a nonmarket economy (`NME') country such as the PRC is state-controlled." Taifa III, 760 F.Supp.2d at 1381-82; Second Remand Results, at 13-19. Nevertheless, the court held that the factual "presumption" made in this case was not supported by record substantial evidence. Taifa III, 760 F.Supp.2d at 1384-85. As a result, the court remanded to Commerce for a third time with instructions to either "explain why substantial record evidence supports a finding of central government control that justified imposition of the PRC-wide entity rate" or to give Taifa "the rate its own lack of verifiable production evidence warrants, without resort to an unconnected country-wide rate." Id. at 1385.
On remand, Commerce concluded that "there [was] not substantial record evidence to conclude that the central government controlled Taifa's business decisions" and therefore, "assign[ed] Taifa a separated antidumping duty rate of 145.90 percent." Final Results of Redetermination Pursuant to Court Remand, 1-2 (Dep't Commerce Mar. 17, 2011) (Docket No. 145) ("Third Remand Results").
The court has jurisdiction pursuant to 28 U.S.C. § 1581(c). The court will not uphold Commerce's final determination in an AD review if it is "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B)(i).
In its last opinion, the court remanded this case to Commerce with instructions to support its finding as to whether Taifa was state-controlled with substantial evidence. See Taifa III, 760 F.Supp.2d at 1385. Upon reconsideration of the record evidence, Commerce concluded that "[a]lthough there is record evidence to demonstrate that Taifa is actually owned by the town government and there is reason to doubt the identity of an independent board of directors directing Taifa's activities in contradiction to how Taifa originally reported its ownership and management to the Department ... there is insufficient record evidence to support a conclusion that Taifa operated under central government control." Third Remand Results, at 6. Although Gleason now asks the court to reconsider its earlier ruling on lack of evidence supporting central government control, no parties challenge Commerce's current determination on this issue as unsupported. See Gleason Cmts., at 2-4; Taifa Cmts., at 4.
There is no statutory compulsion of a country-wide rate, and in this case the record shows no necessity for using such a rate. But cf. Watanabe Grp. v. United States, Slip Op. 10-139, 2010 WL 5371606, *4-5 (CIT Dec. 22, 2010) (holding that Commerce may select the PRC-wide rate when it received no information, whatsoever, from respondent). Whether or not Commerce may in some cases choose this avenue as a permissible convenience or perhaps as an added deterrent does not give a petitioner a right to demand such a rate. A substantially supported rate is all the competitor may demand. See 19 U.S.C. § 1677e(b)-(c). Thus, as the court has not been presented a sufficient basis to revisit its holding in Taifa III, its discussion will be limited to the lawfulness of Taifa's separate rate.
In the case of such lack of connection to central government control, the court instructed Commerce to give Taifa its own separate rate. Taifa III, 760 F.Supp.2d at 1385-86. In its Third Remand Results, Commerce calculated a separate AFA rate of 145.90% using a portion of Taifa's verified sales from the initial investigation. Third Remand Results, at 9. To calculate this margin, Commerce first generated a list of the hand truck models sold by Taifa, ranking them in order of highest to lowest model-specific margin. Id. at 9, 21. Commerce then used the quantity of each model sold to calculate the cumulative percentage each model represented of Taifa's total sales from the top down. Id. at 9. Finally, Commerce calculated the weighted-average margin of 145.90% using data from the sales of the three models with the highest margins, which accounted for 36% of Taifa's total sales by quantity. Id.
During an AD review, when "an interested party has failed to cooperate by not acting to the best of its ability to comply with a request for information from the administering authority ... the administering authority ... 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). Under these circumstances,
Taifa now challenges this AFA rate as uncorroborated, punitive, and aberrational. See Taifa Cmts., at 16. In addition, Taifa contends that Commerce's methodology unlawfully departed from its normal practice. Id. at 6. These claims lack merit.
Pursuant to 19 U.S.C. § 1677e(c), "[w]hen the administering authority ... relies on secondary information rather than on information obtained in the course of an investigation or review, the administering authority ... shall, to the extent practicable, corroborate that information from independent sources that are reasonably at their disposal." 19 U.S.C. § 1677e(c). Commerce, therefore, must corroborate Taifa's AFA rate because it was calculated using secondary information, namely, sales data from the previous investigation. See KYD, Inc. v. United States, 607 F.3d 760, 765 (Fed.Cir.2010) (providing that "[s]econdary information includes [i]nformation derived from the petition that gave rise to the investigation or review, the final determination concerning the subject merchandise, or any previous review under [19 U.S.C. § 1675] concerning the subject merchandise" (internal quotation marks omitted)).
In order to corroborate an AFA rate, Commerce must show that it used "reliable facts" that had "some grounding in commercial reality." Gallant Ocean (Thai.) Co., Ltd. v. United States, 602 F.3d 1319, 1324 (Fed.Cir.2010) (internal quotation marks omitted). On remand, Commerce reasoned that the 145.90% AFA rate was representative of Taifa's commercial reality because it was calculated using 36% of Taifa's verified sales data from the last time it was found to be cooperative, approximately two years earlier.
Commerce cannot apply an AFA rate if it is punitive. F.lli De Cecco, 216 F.3d at 1032. An AFA rate is punitive if it is not "based on facts" and "has been discredited by the agency's own investigation." Id. at 1033. Taifa claims that the AFA rate of 145.90% is punitive because it is much higher than all other calculated company-specific rates in previous segments of the proceedings.
Similarly, Taifa claims that the selected AFA rate is aberrational because it is rebutted by the calculated company-specific rates in other segments of this proceeding. See Taifa's Cmts., at 25. In addition, Taifa claims that Commerce's methodology, which calculated the AFA rate using the 36% of Taifa's sales by quantity with the highest model-specific margins, impermissibly skews the result. Id. at 24. This is not a case, however, where Commerce is attempting to corroborate an AFA rate based on the existence of one irregular sale. See PSC VSMPO-AVISMA, 755 F.Supp.2d at 1338. The fact that 36% of Taifa's sales by quantity yield this rate demonstrates that it is not so out of touch with Taifa's behavior as to render it aberrational.
Finally, Taifa contends that there was no justifiable basis for Commerce to depart from its normal practice of adopting the highest weighted-average margin calculated for any respondent in any previous segment of the proceeding. See Taifa Cmts., at 6-16. When making a discretionary determination, however, Commerce can use a case-by-case analysis, so long as it is "consistent with its statutory authority." See Allied-Signal Aerospace Co. v. United States, 28 F.3d 1188, 1191 (Fed.Cir.1994). Under such circumstances, Commerce is not required to justify its determination in terms of past alternatives. See id. Of course, Commerce must always act reasonably. See id. Here, the reasoning of Commerce's methodology is clear and simple: Commerce lacked credible data for sales made during the period of review. See Third Remand Results, at 13. Commerce then used a substantial portion of Taifa's sales from the original investigation, Taifa's only verified data, to calculate a rate. Third Remand Results, at 9. This methodology is reasonable considering Taifa's lack of verified sales data, the percentage of sales used, and the relatively recent nature of the sales when compared to the time period of the review. Commerce's methodology, therefore, is reasonable and not contrary to law.
For the foregoing reasons, Commerce's determinations are supported by substantial evidence and are in accordance with the law. Accordingly, the Third Remand Results are sustained.