Dongtai Peak Honey Industry Co., Ltd. v. United States

Slip Op. 14-
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:
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
30
March 21, 2014
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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. 	11 1 	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.
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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
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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
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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.
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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,
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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 	19 th 	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).
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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 	19 th 	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 	17 th 	deadline
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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).
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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
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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
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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.
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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.
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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
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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
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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
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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 	19 th 	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
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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
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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
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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
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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,
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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:
New York, New York
March 21, 2014
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