NAN YA PLASTICS CORPORATION, LTD., Plаintiff-Appellant v. UNITED STATES, Defendant-Appellee Dupont Teijin Films, Mitsubishi Polyester Film, Inc., Skc, Inc., Defendants.
No. 2015-1054.
United States Court of Appeals, Federal Circuit.
Jan. 19, 2016.
1333
Thus, because the principle purpose of the CFAs aligns with the criterion outlined in
Conclusion
Given our interpretive guidance in CMS and the plainly worded command of the FGCAA, I would uphold the Claims Court’s determination that the CFAs at issue here must be entered into as procurement contracts, giving the Claims Court subject matter jurisdiction under the Tucker Act and subjecting the CFAs to federal procurement laws such as the CICA. For the foregoing reasons, I respectfully dissent.
NAN YA PLASTICS CORPORATION, LTD., Plaintiff-Appellant v. UNITED STATES, Defendant-Appellee Dupont Teijin Films, Mitsubishi Polyester Film, Inc., Skc, Inc., Defendants.
No. 2015-1054.
United States Court of Appeals, Federal Circuit.
Jan. 19, 2016.
David D’Alessandris, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by Benjamin C. Mizer, Patricia M. McCarthy; Michael Thomas Gagain, Office of the Chief Counsel for Trade Enforcement & Compliance, United States Department of Commerce, Washington, DC.
Before PROST, Chief Judge, LOURIE and WALLACH, Circuit Judges.
WALLACH, Circuit Judge.
The instant appeal concerns the United States Department of Commerce’s (“Commerce”) administrative review of the antidumping duty order covering polyethylene terephthalate film, sheet, and strip from Taiwan (“subject merchandise”) for the period July 1, 2009 to June 30, 2010. See Polyethylene Terephthalate Film, Sheet, and Strip from Taiwan, 76 Fed.Reg. 76,941 (Dep’t of Commerce Dec. 9, 2011) (“Fi-
Background
I. Legal Framework
The antidumping statute provides for the assessment of remedial duties on foreign merchandise sold, or likely to be sold, in the United States “at less than its fair value.”
Each year after the order is published, Commerce provides interested parties with an opportunity to request an administrative review of the order. If Commerce receives a request, it conducts a review of the order.
For each review, the statute requires Commerce to “determine the individual weighted average dumping margin for each known exporter and producer of the subject merchandise.”
“Although Commerce has authority to place documents in the administrative record that it deems relevant, the burden of creating an adequate record lies with interested parties and not with Commerce.” QVD Food Co. v. United States, 658 F.3d 1318, 1324 (Fed.Cir.2011) (internal quotation marks, brackets, and citations omitted). The placement of the burden on interested parties stems from the fact that the International Trade Administration, the relevant agency within Commerce, has no subpoena power. See Rhone Poulenc, Inc. v. United States, 899 F.2d 1185, 1191 (Fed.Cir.1990). Accordingly, each interested party that appears before Commerce must cooperate “to the best of its ability” with Commerce’s requests for information,
If a respondent withholds requested information, fails to provide such information in the form or manner requested, or provides information that cannot be verified, the statute requires Commerce to use whatever facts are available to make its determination.
If Commerce “relies on secondary information rather than on information obtained in the course of . . . [the] review,” the statute requires that the agency “shall, to the extent practicable, corroborate that information from independent sources that are reasonably at [its] disposal.”
II. Administrative Proceedings
In July 2002, Commerce published in the Federal Register notice of the antidumping duty order covering the subject merchandise. See Polyethylene Tereph-
Commerce issued the preliminary results of the review in August 2011. See Polyethylene Terephthalate Film, Sheet, and Strip from Taiwan, 76 Fed.Reg. 47,540 (Dep’t of Commerce Aug. 5, 2011) (preliminary results of review). Because Commerce determined that Nan Ya failed to act to the best of its ability when it withheld information, and that it significantly impeded the proceeding, it applied an adverse inference to Nan Ya in selecting among the facts available. Id. at 47,544. In selecting among the adverse facts available, Commerce assigned a 99.31% rate to Nan Ya, which represented a transaction-specific rate that Commerce calculated for Nan Ya in the immediately-preceding review. Id.
In the Final Results, although Commerce continued to find it appropriate to apply adverse facts available to Nan Ya, it lowered the rate that it assigned to Nan Ya. Commerce determined that “data from the current [period of review] can form the basis for Nan Ya’s [adverse facts available] rate in this review.” S.A. 231 (footnote omitted). It relied upon the highest transaction-specific margin of 74.34% that it calculated for the other mandatory respondent in the review—Shinkong.5 S.A. 231. Commerce reviewed the underlying transaction that forms the basis of the 74.34% rate and found it non-aberrant because it “falls within a range of margins” and it was otherwise not unusual. S.A. 231 (footnote omitted). Commerce also observed that “the data from the most recent review in which Nan Ya participated show that [Commerce] calculated numerous margins for Nan Ya far above 74.34[%],” meaning that the 74.34% rate reflects prices at which Nan Ya could have sold the subject merchandise. S.A. 258. Commerce made these findings but did not corroborate Shinkong’s information pursuаnt to
III. CIT Proceedings
In February 2013, the CIT remanded to Commerce so that the agency could address various arguments that Nan Ya raised for the first time in the litigation. Nan Ya I, 906 F.Supp.2d at 1355. The
On remand, Commerce rejected Nan Ya’s arguments and continued to apply the 74.34% adverse facts available rate. S.A. 117-25. Commerce determined that, under the secоnd step in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), a permissible construction of “any other information placed on the record” in
The CIT subsequently sustained Commerce’s remand redetermination. Nan Ya II, 6 F.Supp.3d at 1371. As to the corroboration requirement of
Although the CIT regarded Nan Ya’s arguments as “hav[ing] some merit,” it held that “they do not render Commerce’s use of [the 74.34% rate] unreasonable because other competing record information suggests that the [rate] was not aberrational.” Id. at 1369. It held that substantial evidence supported Commerce’s selection of the 74.34% rate, including the fact that the trаnsaction underlying that rate “involved a larger quantity than many of Shinkong’s other sales and differed from other models in ‘the least important physical characteristics.’” Id. (citation omitted). It also considered significant the fact that Shinkong did not ask Commerce to exclude the transaction as aberrational. Id. Finally, the CIT found that Nan Ya applied its arguments only to Shinkong’s information, “leav[ing] unchallenged Com-
Nan Ya appeals the CIT’s final judgment. We have jurisdiction pursuant to
Discussion
I. Standard of Review
The court applies the same standard of review as the CIT, upholding Commerce determinations that are supported “by substantial evidence on the record” and otherwise “in accordance with law.”
The court reviews de novo whether Commerce’s interpretation of the statute is in accordance with law, doing so within the two-step framework established in Chevron. Under the first step, we must determine “whether Congress has directly spoken to the precise question at issue.” Chevron, 467 U.S. at 842. If Congress’s intent is clear, “that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43. Under the second step of Chevron, “if an agency’s statutory interpretation promulgated under the authority delegated [to] it by Congress is ‘reasonable’ it is ‘binding [o]n the courts unless procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statute.’” Ningbo Dafa Chem. Fiber Co., 580 F.3d at 1253 (quoting Wheatland Tube Co. v. United States, 495 F.3d 1355, 1360 (Fed.Cir.2007)) (second alteration in original); see also United States v. Eurodif S.A., 555 U.S. 305, 316, 129 S.Ct. 878, 172 L.Ed.2d 679 (2009) (“[Commerce’s] interpretation governs in the absence of unambiguous statutory language to the contrary or unreasonable rеsolution of language that is ambiguous.”).
II. Commerce’s Determination Accords with Law
Nan Ya does not contest Commerce’s decision to apply adverse facts available in determining its dumping margin, but principally argues that Commerce applied the incorrect legal standard in determining the margin. Appellant’s Br. 5 (“The [adverse facts available rate] here is contrary to . . . law.”); Appellant’s Reply Br. 1 (“Our argument is as to legal standards that Commerce must use for [a] lawful” adverse facts available rate, (emphasis modified)). Specifically, Nan Ya contends that Commerce violated
A. Nan Ya Misunderstands Commerce’s Duties Under the Statutory Scheme
As an initial matter, Nan Ya bases a number of its allegations on the legal premise that Commerce must select an adverse facts available rate that reflects “commercial reality” and is “accurate.” Appellant’s Br. 5, 7, 8, 10, 14, 16, 18-19, 27, 31-32 (discussing “commercial reality”); id. at 3-4, 6, 20, 25-26, 34 (discussing “accurate”). Nan Ya’s arguments borrow these terms from past decisions of this court. The CIT similarly has relied upon
In the early 1990s, we began to use the terms “commercial reality” and “acсurate” in our trade remedy decisions in a variety of contexts. For example, we held: (1) that Commerce, consistent with the statute in effect at the time, may rely upon a rebuttable presumption that the highest margin calculated in a prior segment of the proceeding reflects a non-cooperating respondent’s pricing behavior during a later period, Rhone Poulenc, 899 F.2d at 1191 (using “accurately” to sustain Commerce’s interpretation of the predecessor to
Since 2010, we began to use the terms with greater frequency. For example, in reviewing a Commerce adverse facts available determination made during the first administrative review of an order, we said that the petition rate Commerce selected “did not . . . represent commercial reality” within the industry in light of the dumping margins calculated at the end of the investigation for cooperative respondents. Gallant Ocean, 602 F.3d at 1323-24; see also id. (favorably quoting the use of “accurate” in De Cecco). We have repeated that statement when reviewing the same kind of Commerce determination in other appeals. See, e.g., Ad Hoc Shrimp, 802 F.3d at 1361 (quoting Commerce’s use of “commercial reality” and favorably quoting the use of “accurate” in De Cecco); Dongtai Peak Honey Indus. Co. v. United States, 777 F.3d 1343, 1356 (Fed.Cir.2015) (using “commercial reality” to describe a margin that Commerce calсulated using another respondent’s verified information and that Commerce applied as adverse facts available in a later segment and holding that accuracy concerns cannot overcome Commerce’s ability to enforce its procedural deadlines); KYD, Inc. v. United States, 607 F.3d 760, 770 (Fed.Cir.2010) (favorably quoting use of “commercial reality” in Gallant Ocean). We also have stated that the rate Commerce assigns to a non-individually examined respondent in a nonmarket economy antidumping proceeding should reflect that respondent’s “commercial reality.” See Yangzhou Bestpak Gifts & Crafts Co. v. United States, 716 F.3d 1370, 1379-80 (Fed.Cir.2013); see also id. (favorably quoting use of “accurate” in Rhone Poulenc and Gallant Ocean);8 cf. Changzhou Wujin Fine Chem. Factory Co. v. United States, 701 F.3d 1367, 1378-79 (Fed.Cir.2012) (favorably quoting use of “accurately” and “accurate” in Parkdale and Gallant Ocean, respectively); id. at 1384 (Reyna, J., dissenting) (explaining that an adverse facts available rate need not reflect a non-individually examined respondent’s “commercial reality”).
We clarify that “commercial reality” and “accurate” represent reliable guideposts for Commerce’s determinations. Those terms must be considered against what the antidumping statutory scheme demands. See Chevron, 467 U.S. at 842-43 (holding that agеncies and the courts must follow Congress’s unambiguous directive or the agencies otherwise must provide a permissible construction of an ambiguous statute). The term “commercial reality” does not appear in the statutes that Commerce administers,
Our case law and the statute thus teach that a Commerce determination (1) is “accurate” if it is correct as a mathematical and factual matter, thus supported by substantial evidence; and (2) reflects “commercial reality” if it is consistent with the method provided in the statute, thus in accordance with law. See Essar Steel Ltd. v. United States, 678 F.3d 1268, 1275-76 (Fed.Cir.2012) (sustaining a Commerce determination as “accurate” because it was supported by substantial evidence and “determined in accordance with the statutory requirements” (citation omitted)); KYD, 607 F.3d at 768 (discussing same); see also Gallant Ocean, 602 F.3d at 1323-24 (explaining that a rate did not reflect “commercial reality” because of concerns that the numbers used in the underlying calculations later proved not to be “credible,” meaning that Commerce had not used a lawful method to assign a dumping margin under
The court does not use “accurate” and “commercial reality” in some broader sense, such as to require Commerce to apply the statutory methods to determine the industry-wide “commercial realities prevailing” during a particular time period. Albemarle, 931 F.Supp.2d at 1292. Nor must Commerce “prove a negative” about a respondent’s pricing behavior if that respondent fails to provide evidence that would yield more representative calculations of its pricing behavior, see, e.g., Home Meridian Int’l, Inc. v. United States, 772 F.3d 1289, 1295 (Fed.Cir.2014), for the statute permits Commerce to use adverse facts available in that situation to assign the respondent a margin,
B. Nan Ya Fails to Demonstrate Error by Commerce
Nan Ya alleges that Commerce’s determination does not comport with what
1. Commerce’s Decision to Use Shinkong’s Highest Transaction-Specific Margin as a Total Adverse Facts Available Rate Is Permitted by the Plain Terms of 19 U.S.C. § 1677e(b)(4)
Section 1677e(b)(4) permits Commerce to use “any other information placed on the record” as adverse facts available.
We disagree with Commerce that the phrase “any other information placed on the record” in
The statute does not define the phrase “any other information placed on the record.” The word “any” is the key modifier in the phrase in question. “Any” means “one that is selected without restriction or limitation of choice.” Webster’s Third New International Dictionary of the English Language Unabridged (1986). The absence of a “restriction or limitation” means that the statute gives Commerce substantial discretion to decide which record information to use and certainly encompasses Shinkong’s single highest transaction-specific margin. That conclusion finds support in the broad reach that the Supreme Court has given to the word “any.” See, e.g., United States v. Rosenwasser, 323 U.S. 360, 363, 65 S.Ct. 295, 89 L.Ed. 301 (1945) (equating “any” with “all”); see also Barseback Kraft AB v. United States, 121 F.3d 1475, 1481 (Fed.Cir.1997) (discussing same). And our conclusiоn is consistent with what we have said before, albeit not in precise Chevron terms. See Ta Chen Stainless Steel Pipe, Inc. v. United States, 298 F.3d 1330, 1339 (Fed.Cir.2002) (“[I]t is within Commerce’s discretion to presume that the highest prior margin reflects the current margins.” (citation omitted)).
Our conclusion finds further support in the structure of
Nan Ya alleges that Commerce unlawfully interpreted “any other information placed on the record” in
As an initial matter, we observe that Nan Ya fails to make these arguments
Nan Ya fails to recognize that neither “any other information placed on the record” in
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 from [Commerce] . . . , [Commerce] . . . , in reaching the applicable determination under this subtitle, may use an inference that is adverse to the interests of that party in selecting from among the facts otherwise available. Such adverse inference may include reliance on information derived from—
(1) the petition,
(2) a final determination in the investigation under this subtitle,
(3) any previous review under
section 1675 of this title or determination undersection 1675b of this title, or(4) any other information placed on the record.
Nan Ya’s remaining arguments also fail. Although Nan Ya alleges that Commerce’s remand redetermination establishes “that Commerce may per se use the highest calculated dumping margin as [adverse facts available],” Appellant’s Br. 25, its argument ignores Commerce’s statement in that determination, S.A. 127 (Commerce’s remand redetermination “does not create a per se rule that automatically requires use of the highest transaction-specific margin.”); S.A. 127 (explaining that Commerce “ultimately applied a margin significantly lower than Nan Ya’s highest transaction-specific margin [from the immediately-preceding review that is] on the record” of this review). Commerce articulated that the use of the highest transaction-specific margin will depend upon the facts of a particular case. S.A. 120, 127 (explaining that, if the highest
Finally, Nan Ya argues that Commerce’s decision to apply adverse facts available impermissibly “rest[s] wholly (100%) on deterrence (punishment).” Appellant’s Br. 25-28. The legislative history belies Nan Ya’s argument. The SAA explains that
[w]here a party has not cooperated, Commerce . . . may employ adverse inferences about the missing information to ensure that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully. In employing adverse inferences, one factor [Commerce] will consider is the extent to which a party may benefit from its own lack of cooperation.
SAA at 870, 1994 U.S.C.C.A.N. at 4199. On remand, Commerce explained that, “[b]ecause the highest weighted calculated margin applied in this proceeding is Nan Ya’s own previous [adverse facts available] rate of 18.30[%], a major consideration for [Commerce] was selecting a rate sufficient to induce Nan Ya to cooperate in the future.” S.A. 127-28; see also S.A. 231 (finding that the 18.30% rate “was calculated for Nan Ya during the most recently completed administrative review and Nan Ya still chose to not cooperate” (emphasis added)). Thus, Commerce’s consideration of the deterrent effect of its determination reflects the law’s expectation.
2. Commerce Correctly Followed the Unambiguous Terms of the Statute and Found that the Corroboration Requirement in 19 U.S.C. § 1677e(c) Does Not Apply
Nan Ya next argues that Commerce’s determination “violates the statutory cоrroboration requirement” because Commerce did not corroborate Nan Ya’s information from the immediately-preceding review that it used to support its selection of the 74.34% rate. Appellant’s Br. 28 (capitalization omitted). Nan Ya’s argument overlooks the plain language of
Before we address Nan Ya’s argument, we first must determine what
[w]hen [Commerce] . . . relies on secondary information rather than on information 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.
Commerce properly found that
The CIT erred to the extent that it held that the corroboration requirement in
Turning to Nan Ya’s argument, the statute does not require Commerce to corroborate corroborating data (i.e., Nan Ya’s data from the immediately-preceding review); rather, it explains that Commerce “shall, to the extent practicable, corroborate [secondary] information.”
Finally, Nan Ya asserts that other “popular statistics methodologies”—namely, the “Hampel Identifier Test” and the “Box & Whisker Plot”—demonstrate that the transaction from which Commerce derived the 74.34% rate is an outlier. Appellant’s Br. 16, 32. Nan Ya never raised these statistical methodologies in its comments on Commerce’s draft remand or in its opening brief, remand comments, or reply to remand comments before the CIT. S.A. 59-75 (reply to remand comments), 77-96 (remand comments), 148-58 (comments on draft remand), 162-81 (opening brief). Nan Ya has thus both failed to exhaust its remedies before the agency and also waived these arguments. See, e.g., Qingdao Sea-Line Trading Co. v. United States, 766 F.3d 1378, 1388 (Fed.Cir.2014) (“Commerce regulations require the presentation of all issues and arguments in a party’s case brief, and we have held that a party’s failure to raise an argument before Commerce constitutes a failure to exhaust its administrative remedies.” (footnote omittеd)); Sage Prods., Inc. v. Devon Indus., Inc., 126 F.3d 1420, 1426 (Fed.Cir.1997) (“With a few notable exceptions, . . . appellate courts do not consider a party’s new theories[] lodged first on appeal.”). Nan Ya conceded during oral argument that it had not preserved these arguments for appeal. See Oral Argument at 0:59-1:35, http://oralarguments.cafc.uscourts.gov/default.aspx?fl=2015-1054.mp3.
Conclusion
Commerce may use, as adverse facts available pursuant to
We have considered Nan Ya’s remaining arguments that have been exhausted and not waived and find them unpersuasive. Accordingly, the decision of the United States Court of International Trade is
AFFIRMED