Dongtai Peak Honey Indus. Co. v. United States , 971 F. Supp. 2d 1234 ( 2014 )

Slip Op. 14- 30
UNITED STATES COURT OF INTERNATIONAL TRADE
DONGTAI PEAK HONEY INDUSTRY CO., :
LTD., :
:
Plaintiff, : Before: Nicholas Tsoucalas,
: Senior Judge
v. :
: Court No.: 12-00411
UNITED STATES, :
:
Defendant, :
:
and :
:
AMERICAN HONEY PRODUCERS :
ASSOCIATION and SIOUX HONEY :
ASSOCIATION, :
:
Defendant-Intervenors. :
:
OPINION
[Plaintiff’s motion for judgment on the agency record is denied.]
Dated: March 21, 2014
Yingchao Xiao, Lee & Xiao, of San Marino, CA, for plaintiff.
Jane C. Dempsey, Trial Attorney, Commercial Litigation Branch,
Civil Division, U.S. Department of Justice, of Washington, DC, for
defendant. With her on the brief were Stuart F. Delery, Assistant
Attorney General, Jeanne E. Davidson, Director, Reginald T. Blades,
Jr., Assistant Director. Of counsel on the brief was Sapna Sharma,
Attorney, Office of the Chief Counsel for Trade Enforcement &
Compliance, U.S. Department of Commerce, of Washington, DC.
Michael J. Coursey, R. Alan Luberda, and Benjamin B. Caryl, Kelley
Drye & Warren LLP, of Washington, DC, for defendant-intervenors.
TSOUCALAS, Senior Judge: Plaintiff Dongtai Peak Honey
Industry Co., Ltd. (“Peak”), moves for judgment on the agency
record contesting the United States Department of Commerce’s
(“Commerce”) determination in Administrative Review of Honey From
Court No. 12-411 Page 2
the People’s Republic of China: Final Results of Antidumping Duty
Administrative Review, 77 Fed. Reg. 70,417 (Nov. 26, 2012) (“Final
Results”). Commerce and defendant-intervenors American Honey
Producers Association and Sioux Honey Association oppose Peak’s
motion. For the following reasons, Peak’s motion is denied.
BACKGROUND
Commerce initiated the tenth administrative review of
honey from the People’s Republic of China (“PRC”) in January 2012.
Initiation of Antidumping and Countervailing Duty Administrative
Reviews and Requests for Revocation in Part, 77 Fed. Reg. 4759(Jan. 31, 2012). Commerce named Peak a respondent. Id. at 4761.
On March 2, 2012, Commerce issued a nonmarket economy
(“NME”) questionnaire to Peak. See NME Questionnaire (Mar. 2,
2012), Public Rec. 111 at 1. Peak timely filed its response to
section A of the questionnaire, and filed its response to sections
C and D of the questionnaire after receiving a one-day extension of
the deadline from Commerce. See Peak’s § A Questionnaire Resp.
(Mar. 23, 2012), CR 4–6; Peak’s §§ C and D Questionnaire Resp.
(Apr. 10, 2012), PR 24.
On April 3, 2012, Commerce issued a supplemental section
A questionnaire “addressing certain deficiencies” in Peak’s section
1
Hereinafter, all public record documents will be designated
“PR” and all confidential record documents will be designated “CR”
without further specification except where relevant.
Court No. 12-411 Page 3
A questionnaire response. Supplemental § A Questionnaire (Apr. 3,
2012), PR 22 at 1. The deadline for Peak’s supplemental section A
questionnaire response (“SSAQR”) was April 17, 2012. Id. at 1.
Peak did not submit its SSAQR by April 17, 2012. Rather,
on April 19, 2012, Peak filed a request to extend the deadline to
April 27, 2012 (“April 19th Letter”). See Rejection of Supplemental
§ A Questionnaire Resp. and Removal from the Record (May 22, 2012),
PR 40 at 1. Peak requested an extension of time because of an
overlap with the deadline to file its sections C and D
questionnaire response, a national holiday, issues with its
translator, issues communicating with its U.S.-based attorneys, and
a computer failure. See Br. Supp. Pl.’s R. 56.2 Mot. J. Agency R.
at 12 (“Pl.’s Br.”).
On April 27, 2012, Peak submitted a request for an
additional one-day extension of the deadline. PR 40 at 1.
Following the close of business on April 27, 2012, Peak submitted
its SSAQR to Commerce. Id.
Commerce denied Peak’s extension request because “good
cause [did] not exist . . . to extend retroactively its deadline
for the extension request.” Id. at 2. Specifically, Commerce
noted that, although Peak explained why it could not timely file
its SSAQR, “Peak provided no explanation as to why it was unable to
file its extension request in a timely manner prior to the deadline
for its questionnaire response.” Id. Commerce removed from the
Court No. 12-411 Page 4
record both of Peak’s extension requests and the SSAQR. Id.
Although Peak requested reconsideration of this decision,
Commerce continued to find it appropriate to deny Peak’s extension
requests and remove them and the SSAQR from the record in its
preliminary determination. Honey From the PRC: Preliminary Results
of Review, 77 Fed. Reg. 46,699, 46,701–02 (Aug. 6, 2012)
(“Preliminary Results”). Commerce again noted that the April 19th
Letter did not address Peak’s inability to file an extension
request by the deadline. Id. It also stated that the deadline was
significant in the instant case because it found Peak’s U.S. sales
non-bona fide in prior reviews and therefore needed time for a full
analysis of the information it sought in the supplemental section
A questionnaire. Id. at 46,701.
Additionally, Commerce preliminarily determined that,
without a complete section A questionnaire response, the record
lacked sufficient information to calculate a separate rate for
Peak. Id. at 46,702. As a result, Commerce found Peak “to be part
of the PRC-wide entity.” Id.Commerce also preliminarily determined that the PRC-wide
entity, including Peak, did not cooperate to the best of its
ability during the review. Id. Therefore, Commerce relied
entirely on adverse facts available (“AFA”) to determine the
dumping margin for the PRC-wide entity. Id. Commerce selected a
rate of $2.63/kg, which it calculated for Anhui Native Produce
Court No. 12-411 Page 5
Import & Export Corporation (“ANP”) during the sixth administrative
review of honey from the PRC. Id. at 46,703.
In its final determination, Commerce upheld the results
of the Preliminary Review in their entirety. See Final Results, 77
Fed. Reg. at 70,418. See also Administrative Review of Honey from
the PRC: Issues and Decision Memorandum for the Final Results (Nov.
19, 2012), PR 56 at 1 (“I&D Memo”).
Peak contests several aspects of the Final Results,
including: (I) the denial of Peak’s extension requests and the
removal of those requests and the SSAQR from the record; (II) the
decision to impose the PRC-wide rate; (III) the reliance on AFA to
calculate the dumping margin; and (IV) the use of the $2.63/kg
figure for the AFA rate. See Pl.’s Br. at 1–3.
JURISDICTION and STANDARD OF REVIEW
This Court has jurisdiction pursuant to 28 U.S.C. §
1581(c) (2006) and Section 516A(a)(2)(B)(iii) of the Tariff Act of
1930,2 as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2006).
This Court will uphold Commerce’s determination unless 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).
Substantial evidence “means such relevant evidence as a reasonable
2
All further references to the Tariff Act of 1930 will be to
the relevant provisions of Title 19 of the United States Code, 2006
edition, and all applicable supplements thereto.
Court No. 12-411 Page 6
mind might accept as adequate to support a conclusion.” Universal
Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951).
Additionally, “[c]ourts look for a reasoned analysis or
explanation for an agency’s decision as a way to determine whether
a particular decision is arbitrary, capricious, or an abuse of
discretion.” Wheatland Tube Co. v. United States, 161 F.3d 1365,
1369 (Fed. Cir. 1998). “An abuse of discretion occurs where the
decision is based on an erroneous interpretation of the law, on
factual findings that are not supported by substantial evidence, or
represent an unreasonable judgment in weighing relevant factors.”
WelCom Prods., Inc. v. United States, 36 CIT __, __, 865 F. Supp.
2d 1340, 1344 (2012) (citing Star Fruits S.N.C. v. United States,
393 F.3d 1277, 1281 (Fed. Cir. 2005)). “[A]n agency action is
arbitrary when the agency offers insufficient reasons for treating
similar situations differently.” SKF USA Inc. v. United States,
263 F.3d 1369, 1382 (Fed. Cir. 2001).
DISCUSSION
I. The Untimely Submissions
The first issue before the court is whether Commerce
erred in denying Peak’s extension requests and removing the
requests and the SSAQR from the record. “Commerce has broad
discretion to establish its own rules governing administrative
procedures, including the establishment and enforcement of time
limits.” Yantai Timken Co. v. United States, 31 CIT 1741, 1755,
Court No. 12-411 Page 7
521 F. Supp. 2d 1356, 1370 (2007). Furthermore, the Court of
Appeals for the Federal Circuit (“Federal Circuit”) recently held
that “[t]he role of judicial review is limited to determining
whether the record is adequate to support the administrative
action[,]” and therefore “[a] court cannot set aside application of
a proper administrative procedure because it believes that properly
excluded evidence would yield a more accurate result.” PSC VSMPO-
Avisma Corp. v. United States, 688 F.3d 751, 761 (Fed. Cir. 2012).
Commerce’s regulations state that Commerce “may, for good
cause, extend any time limit.” 19 C.F.R. § 351.302(b).3 A party
may request an extension “[b]efore the applicable time limit . . .
expires.” Id. at § 351.302(c). “The request must be in writing,
. . . and state the reasons for the request.” Id. If Commerce
refuses to extend the time limit, it generally “will not consider
or retain in the official record of the proceeding . . . [u]ntimely
filed factual information, written argument, or other material.”
Id. at § 351.302(d).
According to Peak, Commerce should have extended the
deadline upon Peak’s showing of good cause in the April 19th Letter.
See Pl.’s Br. at 12. Peak argues that the April 19th Letter
3
The references to and quoted language from 19 C.F.R. §
351.302 reflect the language of the regulation during the
underlying review unless otherwise specified by the court. In
September 2013, Commerce amended section 351.302 effective for all
segments initiated after October 21, 2013. See Extension of Time
Limits: Final Rule, 78 Fed. Reg. 57,790 (Sept. 20, 2013).
Court No. 12-411 Page 8
explained both why it could not prepare its SSAQR before the
deadline and why it could not file an extension request before the
deadline. Id. Relying on prior proceedings in which Commerce
granted untimely extension requests, Peak argues that Commerce’s
refusal to extend the deadline was arbitrary and an abuse of
discretion because Commerce departed from a “long practice” of
accepting and granting untimely extension requests supported by
good cause. Id. at 9–12.
Contrary to Peak’s insistence, Commerce reasonably
determined that Peak’s extension requests were unsupported by good
cause. Commerce found that Peak failed to comply with the
regulations by filing its extension requests after the deadline
expired. PR 40 at 2. Although it noted that it accepted untimely
extension requests when supported by good cause in prior reviews,
Commerce found that the facts of the instant case did not warrant
granting Peak’s untimely requests. I&D Memo at 5–6. Commerce
noted that Peak was aware of the deadline in question and its
particular importance given the need to determine whether Peak’s
U.S. sales were bona fide and whether Peak was eligible for a
separate rate in the preliminary results. Id. at 5. With regards
to the April 19th Letter, Commerce stated that Peak’s explanation
did not adequately demonstrate why it was unable to file the
extension request before the deadline expired because all of the
causes of delay were known to Peak before the April 17th deadline
Court No. 12-411 Page 9
and could not have prevented Peak from filing an extension request
before that date. Id. at 6. Essentially, Commerce found that Peak
was entirely capable of submitting its extension request on time,
but simply failed to do so. Id. Because Peak failed to file its
extension requests before the deadline to file the SSAQR expired
even though it was capable of doing so, Commerce reasonably
determined that there was not good cause to retroactively extend
the deadline. See 19 C.F.R. § 351.302(b); (c).4 And, because it
denied the extension requests, Commerce reasonably determined that
Peak’s SSAQR was untimely and removed it from the record. Id. at
§ 351.302(d).
Peak also argues that Commerce’s refusal “even to look at
[Peak’s] good cause presentation [was] a deprivation of a statutory
right.” Pl.’s Br. at 16. However, this argument is both factually
incorrect and inconsistent with law. As noted above, Commerce
considered Peak’s good cause presentation and found that it was
insufficient to warrant retroactively extending the deadline. See
I&D Memo at 5–6. Furthermore, Commerce’s decision to deny the
extension request did not violate Peak’s “statutory rights.” In
4
Although they do not apply to the instant case, the
amendments to section 351.302 impose a new standard for analyzing
untimely filed extension requests. See Extension of Time Limits;
Final Rule, 78 Fed. Reg. at 57,795. The amended regulation reads:
“An untimely filed extension request will not be considered unless
the party demonstrates that an extraordinary circumstance exists.”
19 C.F.R. § 351.302(c) (2013).
Court No. 12-411 Page 10
PSC VSMPO, the Federal Circuit found that Commerce’s rejection of
untimely filed factual information did not violate a respondent’s
due process rights where the respondent had notice of the deadline
and an opportunity to comply. PSC VSMPO, 688 F.3d at 761–62.
Here, Commerce notified Peak of the deadline to file its SSAQR. PR
22 at 1. As Commerce found, Peak had an opportunity to comply with
the deadline but failed to do so. I&D Memo at 6. Although this
case involves untimely extension requests in addition to an
untimely submission of factual information, the Federal Circuit’s
rationale in PSC VSMPO holds: Commerce did not violate Peak’s
rights because Peak had notice of the deadline and an opportunity
to comply, but simply failed to timely file its requests to extend
the deadline. See PSC VSMPO, 688 F.3d at 761–62.
Finally, Peak claims that Commerce’s decision to deny
Peak’s extension requests was an abuse of discretion because it
prevented Commerce from calculating the margin as accurately as
possible. Pl.’s Br. at 15–16. Relying on this Court’s holding in
Grobest & I-Mei Industrial (Vietnam) Co. v. United States, 36 CIT
__, 815 F. Supp. 2d 1342 (2012), Peak argues that Commerce should
have extended the deadline because the burden of accepting the
SSAQR was “minuscule” and the denial of Peak’s request resulted in
the application of a margin based on AFA. Id.This argument is flawed. Although Peak’s SSAQR would
have contained information relevant to the dumping margin
Court No. 12-411 Page 11
determination, Commerce was not required to place it on the record
See PSC VSMPO, 688 F.3d at 761 (“A court cannot set aside
application of a proper administrative procedure because it
believes that properly excluded evidence would yield a more
accurate result.”). As discussed above, Commerce properly
determined that Peak’s extension requests were untimely submitted
and failed to demonstrate good cause to extend the deadline, and
therefore removed Peak’s requests and SSAQR from the record. See
19 C.F.R. § 351.302(b)-(d). Accordingly, the court declines to
reverse Commerce’s decision. See PSC VSMPO, 688 F.3d at 761.
Furthermore, Peak’s reliance on Grobest is misplaced. In
Grobest, Commerce rejected the separate rate certification that
Amanda Foods filed, without an extension request, ninety-five days
after the deadline and seven months before the preliminary
determination. Grobest, 36 CIT at __, 815 F. Supp. 2d at 1365.
The Court stated that, when assessing Commerce’s decision to reject
an untimely submission, it “will review on a case-by-case basis
whether the interests of accuracy and fairness outweigh the burden
placed on [Commerce] and the interest in finality.” Id., 815 F.
Supp. 2d at 1365. The Court held that Commerce abused its
discretion by rejecting the certificate because: (1) Amanda Foods
demonstrated its separate rate eligibility in all prior segments of
the proceeding and therefore “it appear[ed] likely that, but for
the untimeliness of its submission, Amanda Foods would have
Court No. 12-411 Page 12
received a separate rate”; and (2) given the minimal analysis of
the separate rate certifications Commerce undertook in previous
reviews, “every indication suggest[ed] that the burden of reviewing
the [separate rate certification] would not be great.” Id. at __,
815 F. Supp. 2d at 1366–67.
Peak insists that the burden of accepting the SSAQR would
have been smaller than the burden in Grobest, as the SSAQR was
“relatively small and minor” and “filed only a few days late.”
Pl.’s Br. at 15. While the Court cannot determine exactly the
burden on Commerce had it extended the deadline, the record
indicates that the burden would not have been “minuscule,” as Peak
suggests. Peak filed its SSAQR less than four months before the
deadline for Commerce to issue its preliminary determination. I&D
Memo at 13. The SSAQR would have provided narrative and
documentary evidence in response to nine pages of questions
concerning Peak’s management, shareholders, accounting practices,
affiliations, U.S. sales, domestic sales, and merchandise. See PR
22 at 4–12. As Commerce explained, this information would have
been relevant to Commerce’s bona fide sales and separate rate
analyses. I&D Memo at 13. And, given that Commerce found Peak’s
U.S. sales to be non-bona fide in two prior reviews, id., the
evidence suggests that the analysis of the information that Peak
would have provided in the SSAQR would have been more extensive
than an analysis of the separate rate certification in Grobest.
Court No. 12-411 Page 13
See Grobest, 36 CIT at __, 815 F. Supp. 2d at 1367.
Ultimately, Commerce’s decision to deny Peak’s extension
request was consistent with the regulations and therefore within
its recognized discretion to set and enforce time limits. See
Yantai Timken, 31 CIT at 1755, 521 F. Supp. 2d at 1370. Although
Commerce exercised this discretion strictly, it neither acted
arbitrarily nor abused its discretion because it provided a
reasoned explanation of its decision consistent with the regulatory
framework and the record. See Wheatland Tube, 161 F.3d at 1369.
Furthermore, because Commerce properly denied Peak’s untimely
request for an extension, it properly removed the extension
requests and the untimely SSAQR from the record of the review. See
19 C.F.R. § 351.302(d).
III. Separate Rate Eligibility
Also at issue is Commerce’s decision to treat Peak as
part of the PRC-wide entity. In antidumping duty proceedings
involving merchandise from a NME, as is the case here, Commerce
presumes that all respondents are government controlled and
therefore subject to the country-wide rate. See Sigma Corp. v.
United States, 117 F.3d 1401, 1405 (Fed. Cir. 1997). Commerce does
allow respondents to rebut this presumption, however, by
establishing the absence of both de jure and de facto government
control. Id. Respondents who make this showing are eligible for
a separate rate. Id.Court No. 12-411 Page 14
Peak alleges that Commerce erroneously treated Peak as
part of the PRC-wide entity. See Pl.’s Br. at 22–25. Relying
again on Grobest, Peak insists that any information missing from
the record relevant to its separate rate eligibility was the result
of Commerce’s wrongful decision to reject and remove from the
record the SSAQR. Id. at 23–24. Peak also denies that the record
was insufficient to establish Peak’s separate rate eligibility, as
its initial section A questionnaire response demonstrated the
absence of government control and the supplemental section A
questionnaire did not solicit relevant information. Id. at 24–25.
Peak’s reliance on Grobest is misplaced because, as noted
above, Commerce’s decision to remove the SSAQR was consistent with
the regulations and within its discretion. See 19 C.F.R. §
351.302(d); Yantai Timken, 31 CIT at 1755, 521 F. Supp. 2d at 1370.
The record lacked certain information regarding Peak’s separate
rate eligibility because Peak failed to timely file its extension
requests and failed to show good cause to extend the deadline. See
19 C.F.R. § 351.302(b); (c).
Furthermore, Peak’s insistence that its initial section
A response was sufficient to demonstrate its separate rate
eligibility is unavailing. Although Peak does not actually
identify any of the evidence in its section A questionnaire
response demonstrating the lack of government control in its brief,
see Pl.’s Br. at 24, an inspection of Peak’s initial section A
Court No. 12-411 Page 15
response does indicate that Peak provided translations of Chinese
law and information concerning its ownership and corporate
structure. See CR 4–6. However, the fact that Peak provided some
evidence of its eligibility for a separate rate is insufficient to
render Commerce’s decision unsupported by substantial evidence.
See Sigma Corp., 117 F.3d at 1405. Ultimately, it was Peak’s
burden to demonstrate the absence of de jure and de facto
government control. See id. The supplemental section A
questionnaire contained a “Separate Rates” section soliciting
information concerning Peak’s shareholders, management, and
affiliation with other entities within the Chinese honey industry.
See PR 22 at 4–6. Because Peak failed to file either its SSAQR
with this information or an extension request before the deadline,
Commerce reasonably concluded that Peak failed to demonstrate the
absence of government control. See Sigma Corp., 117 F.3d at 1405.
Accordingly, Commerce’s reasonably treated Peak as part of the PRC-
wide entity. Id.III. Adverse Facts Available
The next issue is whether Commerce properly relied on AFA
to determine the dumping margin for the PRC-wide entity. If
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,” it “may use an inference that is adverse to the
interests of that party in selecting from among the facts otherwise
Court No. 12-411 Page 16
available.” 19 U.S.C. § 1677e(b).
Peak argues that Commerce erred in its use of AFA to
determine the dumping margin for the PRC-wide entity. See Pl.’s
Br. at 25–29. Relying on this Court’s holding in Nippon Steel
Corp. v. United States, 24 CIT 1158, 118 F. Supp. 2d 1366 (2000)
(“Nippon I”), Peak contends that Commerce’s determination was
contrary to law because “an untimely submission of a questionnaire
response . . . does not equal a failure to cooperate to the best of
[one’s] ability, and does not warrant an adverse inference.” Pl.’s
Br. at 26 (citing Nippon I, 24 CIT at 1169, 118 F. Supp. 2d at
1377). Because Commerce simply equated Peak’s untimely submission
with Peak’s failure to cooperate to the best of its ability, Peak
insists that Commerce failed to verify the accuracy of the the
information contained in the SSAQR and failed to consider the
circumstances surrounding the untimely submission. Id. at 27–29.
Peak suggests that the record actually evidences its full
cooperation with the review, as it timely filed its initial
questionnaire responses and filed its SSAQR as quickly as possible.
Id. at 27–28.
Commerce’s determination was consistent with the law.
“[T]he statutory mandate that a respondent act to ‘the best of its
ability’ requires the respondent to do the maximum it is able to
do.” Nippon Steel Corp. v. United States, 337 F.3d 1373, 1382
(Fed. Cir. 2003) (“Nippon II”). The Federal Circuit further
Court No. 12-411 Page 17
explained that:
Before making an adverse inference, Commerce must examine
respondent’s actions and assess the extent of
respondent’s abilities, efforts, and cooperation in
responding to Commerce’s requests for information.
Compliance with the “best of its ability” standard is
determined by assessing whether respondent has put forth
its maximum effort to provide Commerce with full and
complete answers to all inquiries[.] . . . While the
standard does not require perfection and recognizes that
mistakes sometimes occur, it does not condone
inattentiveness, carelessness, or inadequate record
keeping.
Id.Here, Commerce found that “Peak was aware of its
responsibilities to meet the established deadline, but nonetheless
failed to submit its documents in a timely manner.” I&D Memo at
15. As noted throughout this opinion, Commerce found that the
computer failure, communication problems, translation problems,
overlapping deadlines, and national holiday that Peak relied on in
the April 19th Letter did not prevent Peak from timely filing an
extension request. Id. at 15–16. Thus, Commerce determined that
Peak “placed itself in a position in which it could not comply with
the deadline.” Id. at 16. Because a “reasonable respondent” would
have complied with the deadline in these circumstances, Commerce
concluded that Peak evidenced a “reckless disregard for compliance
standards,” and therefore failed to cooperate with the review to
the best of its ability. Id.
The court finds that Commerce’s determination was
Court No. 12-411 Page 18
reasonable and consistent with the law. Contrary to Peak’s
argument, Commerce did not simply equate Peak’s untimely submission
with a failure to cooperate. In fact, the record indicates that
Commerce considered the circumstances of Peak’s untimely
submission. See id. at 15–16. It noted that it set the deadline
with regard for the time necessary to analyze and verify the
information contained in the SSAQR, and found that Peak was aware
of the deadline and had the opportunity to request an extension
before the deadline expired. Id. Given Peak’s failure to comply,
it is immaterial that Peak timely submitted other sections of the
questionnaire. Because Peak was aware of the deadline and had the
opportunity to file an extension request prior to its expiration,
Peak’s failure to do so indicated an inattentiveness or
carelessness with regards to its obligations that warranted the use
of AFA. See Nippon II, 337 F.3d at 1382. Therefore, Commerce’s
decision to rely on AFA is supported by substantial evidence and in
accordance with law. Id.IV. The Adverse Facts Available Rate
The final issue before the court is whether Commerce
properly selected the $2.63/kg AFA rate for the PRC-wide entity.
When relying on AFA, Commerce may use information from the
petition, investigation, prior administrative reviews, or “any
other information placed on the record.” 19 U.S.C. § 1677e(b).
When it “relies on secondary information rather than on information
Court No. 12-411 Page 19
obtained in the course of an investigation or review,” Commerce
“shall, to the extent practicable, corroborate that information
from independent sources that are reasonably at [its] disposal.”
Id. at § 1677e(c). To corroborate secondary information, Commerce
must find that it has “probative value.” See KYD, Inc. v. United
States, 607 F.3d 760, 765 (Fed. Cir. 2010). Secondary information
has “probative value” if it is reliable and relevant. Mittal Steel
Galati S.A. v. United States, 31 CIT 730, 734, 491 F. Supp. 2d
1273, 1278 (2007); see KYD, 607 F.3d at 765–67.
Peak argues that the $2.63/kg figure Commerce used rate
was neither reliable nor relevant. Pl.’s Br. at 29–30. According
to Peak, Commerce should not have relied on a rate from the 2006-
2007 administrative review because of “fluctuations in sales
prices, production and transportation costs, market conditions, and
so forth known to [Commerce] since that review period.” Id. at 29.
Peak also insists that there was no evidence in the record
indicating that this rate was reliable. Id. at 30.
Peak’s argument is unpersuasive. In both its case brief
before Commerce and in its brief before this Court, Peak insists
that Commerce knows of market fluctuations and other changes in the
Chinese honey industry since the 2006-2007 review. See Peak’s
Administrative Case Brief (Sept. 5, 2012), PR 52 at 23; Pl.’s Br.
at 29–30. However, Peak provided no evidence of such changes
before Commerce, see PR 52 at 23, and does not do so here. See
Court No. 12-411 Page 20
Pl.’s Br. at 29–30. Peak’s bare assertion that such changes
occurred is insufficient to undermine Commerce’s selection of ANP’s
rate to determine the margin for the PRC-wide entity. See Qingdao
Maycarrier Imp. & Exp. Co. v. United States, 37 CIT __, __, 949 F.
Supp. 2d 1335, 1343 (2013) (Tsoucalas, J.) (citing Consolo v.
Federal Maritime Comm’n, 383 U.S. 607, 620 (1966)) (Plaintiff’s
alternative interpretation of the record, unsupported by any record
evidence, was insufficient grounds to overturn Commerce’s
determination.).
Furthermore, Peak’s insistence that the rate was
unsupported by substantial evidence in the record is also
incorrect. This Court has noted that, “[u]nlike other sources of
information, there are no independently verifiable sources for
calculated dumping margins, other than previous administrative
determinations.” Peer Bearing Co.-Changshan v. United States, 32
CIT 1307, 1314, 587 F. Supp. 2d 1319, 1328 (2008). Therefore, when
calculating the AFA rate for the PRC-wide entity, “the reliability
of the calculation stems from its basis in prior verified
information in previous administrative reviews,” and “[i]f Commerce
chooses a calculated dumping margin from a prior segment of the
proceeding, it is not necessary to question the reliability of the
margin if it was calculated from verified sales and cost data.”
Id., 587 F. Supp. 2d at 1328. Here, Commerce calculated the AFA
rate using verified sales and cost data for ANP from an
Court No. 12-411 Page 21
administrative review of honey from the PRC covering sales between
2006 and 2007. I&D Memo at 18–19. It noted that ANP’s data
“reflect[ed] the commercial reality of another respondent in the
same industry” as Peak. Id. at 18. As discussed, Peak failed to
provide any evidence indicating that this rate was not reliable.
See PR 52 at 23; Pl.’s Br. at 29–30. Because Commerce based the
AFA rate on ANP’s verified sales and cost data and Peak has not
identified any evidence indicating that the rate lacked probative
value, Commerce’s determination was reasonable. See Peer Bearing,
32 CIT at 1314, 587 F. Supp. 2d at 1328.
Finally, Peak suggests that the rate Commerce selected
was not relevant because it was “not based on [Peak]’s own sales an
production data for the current period of review.” Pl.’s Br. at
30. Accordingly, Peak argues that Commerce’s selection of ANP’s
rate was a violation of Commerce’s duty to “apply the most accurate
rates possible to individual respondents.” Id.This argument must fail as well. Because Peak was part
of the PRC-wide entity, Commerce was not required to calculate a
separate AFA rate relevant to Peak. See Peer Bearing, 32 CIT at
1313, 587 F. Supp. 2d at 1327 (“[T]here is no requirement that the
PRC-wide entity rate based on AFA relate specifically to the
individual company.”). Therefore, it was not necessary for
Commerce to corroborate the AFA rate for the PRC-wide entity using
the sales data Peak provided during the review. Id. Accordingly,
Court No. 12-411 Page 22
Peak fails to show that Commerce erroneously relied on ANP’s rate
to calculate the AFA margin for the PRC-wide entity.
CONCLUSION
Commerce’s decision to deny Peak’s untimely extension
requests and remove the extension requests and Peak’s supplemental
section A questionnaire response from the record was a proper
exercise of its discretion. Additionally, Commerce’s decision to
treat Peak as part of the PRC-wide entity and its decision to
impose a dumping margin of $2.63/kg based on adverse facts
available were supported by substantial evidence and in accordance
with law. Peak’s motion for judgment on the agency record is
denied. Judgment will be entered accordingly.
/s/ Nicholas Tsoucalas
Nicholas Tsoucalas
Senior Judge
Dated: March 21, 2014
New York, New York