Dongtai Peak Honey Industry Co. v. United States

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