Dongtai Peak Honey Industry Co. v. United States
2015 U.S. App. LEXIS 1492
| Fed. Cir. | 2015

Background

  • Commerce initiated the 10th administrative review (Dec 1, 2010–Nov 30, 2011) of the antidumping duty Order on honey from China and named Dongtai Peak a respondent.
  • Commerce issued Section A, C, D questionnaires with deadlines; Dongtai Peak timely filed Section A, obtained a one-day extension for Sections C and D, but failed to timely respond to a Supplemental Section A questionnaire due COB April 17, 2012.
  • Dongtai Peak submitted two untimely extension requests (Apr 19 and Apr 27) after the deadline and filed the Supplemental Response on Apr 27 without Commerce having granted extensions; Commerce removed the untimely requests and Supplemental Response from the record.
  • In the Preliminary and Final Results Commerce determined Dongtai Peak lacked a separate rate (included it in the China-wide entity), found the China-wide entity noncooperative, and applied adverse facts available (AFA) using a $2.63/kg rate from a prior review.
  • Dongtai Peak challenged Commerce’s actions in the Court of International Trade (CIT); the CIT upheld Commerce. The Federal Circuit affirms, finding Commerce acted within its discretion and its determinations were supported by substantial evidence.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether Commerce improperly denied and removed Dongtai Peak’s untimely extension requests and Supplemental Response Dongtai Peak: showed good cause (communication problems, translator, holiday, computer failures, overlapping deadlines); Commerce should have accepted late submissions for fairness and accuracy Commerce: regulation requires extension requests before deadline and good cause; Dongtai Peak knew or could have known reasons before deadline and failed to timely request; Commerce may enforce deadlines Held: Commerce reasonably denied and removed the untimely filings under 19 C.F.R. §351.302; no due process violation because Dongtai Peak had notice and opportunity to comply
Whether Commerce erred in denying Dongtai Peak separate-rate status Dongtai Peak: initial Section A contained extensive responses and documents showing lack of government control Commerce: the record (after removal of Supplemental Response) lacked necessary information on ownership, management, affiliations and control to rebut NME presumption Held: Substantial evidence supports Commerce’s conclusion that Dongtai Peak failed to rebut de jure/de facto government control and is part of the China‑wide entity
Whether Commerce improperly applied AFA because the only basis was untimely filing Dongtai Peak: AFA was punitive for being two days late in requesting an extension; it ultimately submitted the Supplemental Response Commerce: respondent failed to act "to the best of its ability" by not timely requesting an extension; explanations did not show inability to request on time Held: Commerce reasonably concluded Dongtai Peak did not cooperate to the best of its ability and permissibly applied AFA under 19 U.S.C. §1677e
Whether the chosen AFA rate ($2.63/kg from prior review) was unreliable or inadequately corroborated Dongtai Peak: rate is stale, not based on current-period data, and Commerce failed to corroborate relevance Commerce: rate was calculated from verified data of another industry respondent and had been applied to the China‑wide entity in prior reviews; Commerce corroborated reliability/relevance as practicable Held: Commerce’s selection and corroboration of the prior calculated rate as AFA was supported by substantial evidence and lawful

Key Cases Cited

  • Mittal Steel Point Lisas Ltd. v. United States, 548 F.3d 1375 (Fed. Cir. 2008) (standard of review for CIT decisions)
  • Diamond Sawblades Mfrs. Coal. v. United States, 612 F.3d 1348 (Fed. Cir. 2010) (weight given to CIT’s informed opinion in substantial-evidence review)
  • Cleo Inc. v. United States, 501 F.3d 1291 (Fed. Cir. 2007) (considerations in substantial-evidence review)
  • Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197 (U.S. 1938) (definition of substantial evidence)
  • Suramerica de Aleaciones Laminadas, C.A. v. United States, 44 F.3d 978 (Fed. Cir. 1994) (deference to CIT)
  • PSC VSMPO-Avisma Corp. v. United States, 688 F.3d 751 (Fed. Cir. 2012) (agency discretion to set and enforce deadlines)
  • Yantai Timken Co. v. United States, 521 F. Supp. 2d 1356 (Ct. Int'l Trade 2007) (importance of enforcing Commerce deadlines to ensure accurate margins)
  • Sigma Corp. v. United States, 117 F.3d 1401 (Fed. Cir. 1997) (NME presumption and separate-rate framework)
  • Transcom, Inc. v. United States, 182 F.3d 876 (Fed. Cir. 1999) (application of country-wide rate when separate-rate not established)
  • Nippon Steel Corp. v. United States, 337 F.3d 1373 (Fed. Cir. 2003) ("best of its ability" standard for AFA)
  • Gallant Ocean (Thai.) Co. v. United States, 602 F.3d 1319 (Fed. Cir. 2010) (Commerce may use secondary sources for AFA)
  • KYD, Inc. v. United States, 607 F.3d 760 (Fed. Cir. 2010) (corroboration and probative value of secondary AFA information)
  • F.lli De Cecco di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027 (Fed. Cir. 2000) (Commerce’s discretion in selecting AFA sources)
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