Nan Ya Plastics Corporation v. United States
2016 U.S. App. LEXIS 810
| Fed. Cir. | 2016Background
- Nan Ya challenged Commerce's remand VA rate of 74.34% for period July 1, 2009 to June 30, 2010 PET Film from Taiwan.
- Nan Ya had refused to participate in the review and provided no information for the agency.
- Commerce initially applied adverse facts available (AFA) with a 99.31% rate during preliminary results, then lowered to 74.34% in Final Results using data from the ongoing Shinkong transaction.
- On remand, Commerce held that 19 U.S.C. § 1677e(b)(4) allows using the highest transaction-specific margin from the subject review as the AFA rate, and that corroboration under § 1677e(c) did not apply to primary information.
- The CIT sustained Commerce's remand redetermination, emphasizing Commerce's discretion and the lack of a per se rule requiring corroboration of primary information.
- Nan Ya appealed; the Federal Circuit affirms, upholding Commerce’s statutory interpretation and the use of the 74.34% VA rate under the cited provisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether using Shinkong's highest margin as Nan Ya's VA rate is permitted under § 1677e(b)(4). | Nan Ya contends the method exceeds statutory authority and misreads 'any other information placed on the record.' | Commerce reasonably interprets § 1677e(b)(4) to allow selecting the highest transaction-specific margin from the record as VA. | Permissible; statute grants broad discretion to select VA information. |
| Whether the corroboration requirement in § 1677e(c) applies to primary information used as VA. | Nan Ya argues corroboration is required for primary information used as VA. | Corroboration under § 1677e(c) applies only to secondary information; primary information need not be corroborated. | Correct; § 1677e(c) does not require corroboration of primary information. |
| Whether Commerce properly treated primary vs. secondary information on remand. | Nan Ya contends Commerce erred by relying on Shinkong data (primary information) without corroboration. | Commerce's approach aligns with the statutory distinction between primary and secondary information. | Proper; primary information used for VA need not be corroborated. |
| Whether Nan Ya exhausted arguments on certain statistical methodologies. | Nan Ya raised Hampel/Box-Plot techniques to claim outlier status, but did not exhaust before CIT. | Arguments were not preserved; court should not consider new theories on appeal. | Waived/exhaustion bars prevent consideration of those methods. |
Key Cases Cited
- Rhone Poulenc, Inc. v. United States, 899 F.2d 1185 (Fed. Cir. 1990) (burden on petitioners to cooperate and provide information)
- Gallant Ocean (Thai.) Co. v. United States, 602 F.3d 1319 (Fed. Cir. 2010) (commercial reality/accuracy considerations in VA determinations)
- Ta Chen Stainless Steel Pipe, Inc. v. United States, 298 F.3d 1330 (Fed. Cir. 2002) (presaging use of highest margins and pricing behavior)
- De Cecco di Filippo Fara San Martino S.p.A. v. United States, 216 F.3d 1027 (Fed. Cir. 2000) (corroboration requirement for secondary information under § 1677e(c))
- TIMEX V.I., Inc. v. United States, 157 F.3d 878 (Fed. Cir. 1998) (Chevron step-one framework in statutory interpretation)