Nan Ya Plastics Corporation v. United States , 810 F.3d 1333 ( 2016 )

United States Court of Appeals
for the Federal Circuit
______________________
NAN YA PLASTICS CORPORATION, LTD.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
DUPONT TEIJIN FILMS, MITSUBISHI
POLYESTER FILM, INC., SKC, INC.,
Defendants
______________________
2015-1054
______________________
Appeal from the United States Court of International
Trade in No. 1:11-cv-00535-LMG, Judge Leo M. Gordon.
______________________
Decided: January 19, 2016
______________________
PETER J. KOENIG, Squire Patton Boggs (US) LLP,
Washington, DC, argued for plaintiff-appellant.
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
2 NAN YA PLASTICS CORP. v. UNITED STATES
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 De-
partment of Commerce’s (“Commerce”) administrative
review of the antidumping duty order covering polyeth-
ylene 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) (“Final Results”) (final admin.
review); Memorandum from Christian Marsh, Deputy
Assistant Sec’y for Antidumping & Countervailing Duty
Operations, Dep’t of Commerce, to Paul Piquado, Assis-
tant Sec’y for Import Admin., Dep’t of Commerce (Dec. 5,
2011) (S.A. 1 226–35); see also Final Results of Redetermi-
nation Pursuant to Remand (Dep’t of Commerce May 23,
2013) (S.A. 105–47). Appellant Nan Ya Plastics Corpora-
tion, Ltd. (“Nan Ya”) contends that the United States
Court of International Trade (“CIT”) erred in sustaining
Commerce’s determination on remand in which it as-
signed an adverse facts available rate of 74.34% to Nan
Ya’s entries of subject merchandise entered during the
1 “S.A.” refers to the supplemental appendix filed by
Appellee United States. Prior to filing its response brief,
Appellee “w[as] unable to obtain a copy of the draft ap-
pendix from counsel for plaintiff-appellant” and, thus,
filed “a supplemental appendix to [its] brief.” Appellee’s
Br. 2 n.2. Appellant Nan Ya Plastics Corporation, Ltd.
subsequently adopted Appellee’s supplemental appendix.
Appellant’s Adoption of Appellee’s R. App. 1–3.
NAN YA PLASTICS CORP. v. UNITED STATES 3
period of review. See Nan Ya Plastics Corp. v. United
States (Nan Ya II), 6 F. Supp. 3d 1362 (Ct. Int’l Trade
2014) (sustaining remand determination); Nan Ya Plas-
tics Corp. v. United States (Nan Ya I), 906 F. Supp. 2d
1348 (Ct. Int’l Trade 2013) (remanding Final Results to
Commerce). We affirm the CIT, although we sustain
Commerce’s determination on different grounds.
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.” 19 U.S.C. § 1673 (2006). 2 At the conclusion of an
investigation, if Commerce and the United States Inter-
national Trade Commission have made the requisite
findings, Commerce publishes an order that directs cus-
toms officers to assess duties on imports of goods covered
by the investigation. Id. § 1673e(a).
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. Id.
§ 1675(a)(1). Each review constitutes a separate segment
within the same administrative proceeding. See 19 C.F.R.
§ 351.102(b)(47) (2009).
2 During the pendency of the appeal, Congress
amended various statutes that Commerce administers,
including provisions at issue in this appeal. See Trade
Preferences Extension Act of 2015, Pub. L. No. 114-27,
§ 502, 129 Stat. 362, 383–84 (2015). However, the
amendments do not apply to final determinations that
Commerce made prior to the date of enactment. See Ad
Hoc Shrimp Trade Action Comm. v. United States, 802
F.3d 1339, 1348–52 (Fed. Cir. 2015).
4 NAN YA PLASTICS CORP. v. UNITED STATES
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.” 19 U.S.C. § 1677f-1(c)(1). A dump-
ing margin reflects the amount by which the “‘normal
value’ (the price a producer charges in its home market)
exceeds the ‘export price’ (the price of the product in the
United States) or ‘constructed export price.’” U.S. Steel
Corp. v. United States, 621 F.3d 1351, 1353 (Fed. Cir.
2010) (citing 19 U.S.C. § 1677(35)(A)) (footnote omitted).
“Although Commerce has authority to place docu-
ments in the administrative record that it deems relevant,
the burden of creating an adequate record lies with inter-
ested parties and not with Commerce.” QVD Food Co. v.
United States, 658 F.3d 1318, 1324 (Fed. Cir. 2011) (in-
ternal quotation marks, brackets, and citations omitted).
The placement of the burden on interested parties stems
from the fact that the International Trade Administra-
tion, the relevant agency within Commerce, has no sub-
poena 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, 19 U.S.C. § 1677e(b), which
means that each party must “do the maximum it is able to
do,” Nippon Steel Corp. v. United States, 337 F.3d 1373,
1382 (Fed. Cir. 2003). “While the standard does not
require perfection and recognizes that mistakes some-
times occur, it does not condone inattentiveness, careless-
ness, or inadequate record keeping.” Id.
If a respondent withholds requested information, fails
to provide such information in the form or manner re-
quested, or provides information that cannot be verified,
the statute requires Commerce to use whatever facts are
available to make its determination. 19 U.S.C.
§ 1677e(a)(2). If Commerce finds that a respondent has
“failed to cooperate by not acting to the best of its ability
NAN YA PLASTICS CORP. v. UNITED STATES 5
to comply with a request for information,” the statute
permits the agency to draw adverse inferences commonly
known as “adverse facts available” when selecting from
among the available facts. Id. § 1677e(b). Commerce
“may employ [such] inferences . . . to ensure that the
party does not obtain a more favorable result by failing to
cooperate than if it had cooperated fully.” Statement of
Administrative Action accompanying the Uruguay Round
Agreements Act (“SAA”), H.R. Rep. No. 103-316, vol. 1, at
870 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4199. 3
In selecting from among the adverse facts available,
Commerce may rely upon information derived from: (1)
the petition filed to initiate the investigation; (2) a final
determination in the investigation; (3) a previous admin-
istrative review; or (4) “any other information placed on
the record.” 19 U.S.C. § 1677e(b). Once it selects particu-
lar facts, Commerce uses them to assign a dumping
margin for each non-cooperating respondent that it re-
views.
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.”
Id. § 1677e(c). “Secondary information is information
derived from the petition that gave rise to the investiga-
tion . . . , the final determination [from the investigation],
or any previous review . . . concerning the subject mer-
chandise.” SAA at 870, 1994 U.S.C.C.A.N. at 4199.
3 The SAA “shall be regarded as an authoritative
expression by the United States concerning the interpre-
tation and application of the Uruguay Round Agreements
and this Act in any judicial proceeding in which a ques-
tion arises concerning such interpretation or application.”
19 U.S.C. § 3512(d).
6 NAN YA PLASTICS CORP. v. UNITED STATES
Secondary information does not include information
obtained from the subject segment, which is known as
“primary information.” See 19 U.S.C. § 1677e(c); see also
Gallant Ocean (Thai.) Co. v. United States, 602 F.3d 1319,
1324 (Fed. Cir. 2010).
II. Administrative Proceedings
In July 2002, Commerce published in the Federal
Register notice of the antidumping duty order covering
the subject merchandise. See Polyethylene Terephthalate
Film, Sheet, and Strip (PET Film) from Taiwan, 67 Fed.
Reg. 44,174 (Dep’t of Commerce July 1, 2002) (antidump-
ing duty order), as corrected, 67 Fed. Reg. 46,566 (Dep’t of
Commerce July 15, 2002). Upon timely submitted re-
quests, Commerce initiated the subject administrative
review in August 2010. See Initiation of Antidumping
and Countervailing Duty Administrative Reviews and
Deferral of Initiation of Administrative Review, 75 Fed.
Reg. 53,274, 53,275 (Dep’t of Commerce Aug. 31, 2010)
(initiation of review). The review covered three respond-
ents, including Nan Ya and Shinkong Materials Technol-
ogy Corporation (“Shinkong”). 4 See id. In December
2010, without providing a reason, Nan Ya informed
Commerce that it would not participate in the review.
S.A. 271–72. It subsequently submitted no information to
Commerce.
Commerce issued the preliminary results of the re-
view in August 2011. See Polyethlene Terephthalate Film,
4 During the review, Commerce found that
Shinkong is affiliated with another entity, Shinkong
Synthetic Fibers Corporation. See Polyethlene Tereph-
thalate Film, Sheet, and Strip from Taiwan, 76 Fed. Reg.
47,540, 47,541 (Dep’t of Commerce Aug. 5, 2011) (prelimi-
nary results of review), unchanged in Final Results, 76
Fed. Reg. 76,941.
NAN YA PLASTICS CORP. v. UNITED STATES 7
Sheet, and Strip from Taiwan, 76 Fed. Reg. 47,540 (Dep’t
of Commerce Aug. 5, 2011) (preliminary results of re-
view). Because Commerce determined that Nan Ya failed
to act to the best of its ability when it withheld infor-
mation, 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. Com-
merce 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 omit-
ted). It relied upon the highest transaction-specific mar-
gin of 74.34% that it calculated for the other mandatory
respondent in the review—Shinkong. 5 S.A. 231. Com-
merce reviewed the underlying transaction that forms the
basis of the 74.34% rate and found it non-abberant be-
cause 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 mer-
chandise. S.A. 258. Commerce made these findings but
5 Nan Ya argued in its administrative case brief
submitted after the preliminary results, but before the
Final Results, that Commerce should use information
obtained during the subject review from Shinkong. S.A.
199–200.
8 NAN YA PLASTICS CORP. v. UNITED STATES
did not corroborate Shinkong’s information pursuant to 19
U.S.C. § 1677e(c), finding the corroboration requirement
inapplicable because Shinkong’s data reflected primary,
rather than secondary, information. S.A. 233. Nan Ya
subsequently appealed to the CIT.
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 CIT noted that Nan Ya’s
rate changed between the preliminary and Final Results,
such that Nan Ya’s first opportunity to challenge the
revised margin arose in the litigation. Id. at 1354. It also
directed Commerce to further explain whether the corrob-
oration requirement under 19 U.S.C. § 1677e(c) applied to
Shinkong’s information obtained during the subject
review in light of this court’s opinion in F.lli De Cecco Di
Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d
1027, 1032 (Fed. Cir. 2000). 6 Id. at 1354–55.
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
second step in Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 842–43 (1984), a
permissible construction of “any other information placed
on the record” in 19 U.S.C. § 1677e(b)(4) permits it to use
6 In relevant part, De Cecco explains that “Con-
gress’s imposition of the corroboration requirement in 19
U.S.C. § 1677e(c) [demonstrates] that it intended for an
adverse facts available rate [based on secondary infor-
mation] to be a reasonably accurate estimate of the re-
spondent’s actual rate, albeit with some built-in increase
intended as a deterrent to non-compliance.” 216 F.3d at
1032.
NAN YA PLASTICS CORP. v. UNITED STATES 9
the highest transaction-specific margin from the subject
review. S.A. 110–14. It also found that it need not cor-
roborate Shinkong’s information and that § 1677e(c)’s
corroboration requirement did not apply because the
information that it used as adverse facts available came
from the record of the subject review, rather than from a
separate segment of the proceeding. S.A. 108–10 & n.2.
It also found that De Cecco “highlights [the] distinction
requiring corroboration of only secondary information.”
S.A. 110 n.3.
The CIT subsequently sustained Commerce’s remand
redetermination. Nan Ya II, 6 F. Supp. 3d at 1371. As to
the corroboration requirement of § 1677e(c), the CIT
observed that “Commerce makes a fairly airtight argu-
ment” under “a straightforward Chevron step one inter-
pretation that focuses on the plain meaning” of the
corroboration requirement as set forth in § 1677e(c). Id.
at 1367. Nevertheless, it observed that in the Final
Results and in its remand redetermination “Commerce did
not simply select Shinkong’s highest transaction specific
margin in setting Nan Ya’s rate, and leave it at that.
Commerce went further and measured the rate’s appro-
priateness by analyzing Nan Ya’s own prior transaction-
specific data.” Id. (citations omitted). Because Commerce
“followed its standard corroboration playbook to tie the
selected [adverse facts available] rate . . . to . . . Nan Ya,”
the CIT held that the corroboration requirement of
§ 1677e(c) and De Cecco’s reasonableness requirement
“appl[y] after all.” Id. at 1367–68 (citations omitted).
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 be-
cause 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 transaction
underlying that rate “involved a larger quantity than
10 NAN YA PLASTICS CORP. v. UNITED STATES
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 Commerce’s corrobo-
rative justification for the reasonableness of the 74.34[%]
rate: ‘Nan Ya was capable of dumping at’ 74.34[%] as
evidenced by Nan Ya’s own data” from the immediately-
preceding review. Id. at 1370 (citation omitted).
Nan Ya appeals the CIT’s final judgment. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(5) (2012).
DISCUSSION
I. Standard of Review
The court applies the same standard of review as the
CIT, upholding Commerce determinations that are sup-
ported “by substantial evidence on the record” and other-
wise “in accordance with law.” 19 U.S.C.
§ 1516a(b)(1)(B)(i). Although we review the decisions of
the CIT de novo, “we give great weight to the informed
opinion of the [CIT] . . . and it is nearly always the start-
ing point of our analysis.” Ningbo Dafa Chem. Fiber Co.
v. United States, 580 F.3d 1247, 1253 (Fed. Cir. 2009)
(internal quotation marks, brackets, and citations omit-
ted).
The court reviews de novo whether Commerce’s inter-
pretation 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 Con-
gress 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
NAN YA PLASTICS CORP. v. UNITED STATES 11
of Chevron, “if an agency’s statutory interpretation prom-
ulgated under the authority delegated [to] it by Congress
is ‘reasonable’ it is ‘binding [o]n the courts unless proce-
durally 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 (2009) (“[Commerce’s]
interpretation governs in the absence of unambiguous
statutory language to the contrary or unreasonable reso-
lution 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 mar-
gin, 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 19 U.S.C. § 1677e(b) and (c) when it assigned the
74.34% rate to Nan Ya. See Appellant’s Br. 5. As dis-
cussed below, Commerce’s determination does not conflict
with law.
A. Nan Ya Misunderstands Commerce’s Duties Under the
Statutory Scheme
As an initial matter, Nan Ya bases a number of its al-
legations 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 these terms in
12 NAN YA PLASTICS CORP. v. UNITED STATES
recent decisions, not only in cases involving adverse facts
available determinations but also in other areas. See, e.g.,
Baoding Mantong Fine Chemistry Co. v. United States,
No. 12-00362, 2015 WL 6685530, at *6 (Ct. Int’l Trade
Nov. 3, 2015) (discussing “commercial reality” in adverse
facts available context); Dongguan Sunrise Furniture Co.
v. United States, No. 10-00254, 2015 WL 179003, at *1–5
(Ct. Int’l Trade Jan. 14, 2015) (same); see also Vinh Hoan
Corp. v. United States, 49 F. Supp. 3d 1285, 1302–06,
1321 (Ct. Int’l Trade 2015) (discussing the term “accurate”
in the selection of a surrogate country and surrogate
values under 19 U.S.C. § 1677b(c)(2), (4)); Albemarle
Corp. v. United States, 931 F. Supp. 2d 1280, 1291–92 (Ct.
Int’l Trade 2013) (discussing “commercial reality” in the
selection of the rate assigned to non-individually exam-
ined respondents in nonmarket economy antidumping
proceedings). Our jurisprudence to date has not straight-
forwardly defined these terms; today, we clarify their
meaning.
In the early 1990s, we began to use the terms “com-
mercial reality” and “accurate” in our trade remedy deci-
sions 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 inter-
pretation of the predecessor to § 1677e(b)); 7 (2) that
7 The predecessor statute stated:
In making [its] determinations under this subti-
tle, [Commerce] . . . shall, whenever a party or any
other person refuses or is unable to produce in-
formation requested in a timely manner and in
the form required, or otherwise significantly im-
NAN YA PLASTICS CORP. v. UNITED STATES 13
Commerce must consider a widely-accepted accounting
principle in imputing costs and may support its decision
by relying upon a respondent’s records kept in the ordi-
nary course of business, LMI-La Metalli Industriale,
S.p.A. v. United States, 912 F.2d 455, 457–58, 460–61
(Fed. Cir. 1990) (favorably quoting Commerce’s use of
“accurate” in calculating a respondent’s warehousing costs
and discussing “commercial reality” in the context of time
value of money); (3) that Commerce cannot assume abso-
lute consistency in prices, but may compare foreign and
domestic goods based on shared physical characteristics,
U.H.F.C. Co. v. United States, 916 F.2d 689, 697–98, 701
(Fed. Cir. 1990) (discussing “commercial reality” in the
context of consistency of prices and “accurate” when
describing Commerce’s decision to match products with
similar physical characteristics); and (4) that Commerce
must account for a particular company’s sales practice
when interpreting a contract, Samsung Elecs. Am., Inc. v.
United States, 106 F.3d 376, 379, 382 (Fed. Cir. 1997)
(using “commercial reality” and “accurate” to discuss
contract terms). We also used the term “accurate” in
maintaining that, when Commerce uses secondary infor-
mation as adverse facts available, that secondary infor-
mation must reflect an “estimate” constructed pursuant to
the statutory method for calculating dumping margins to
meet the corroboration requirement under § 1677e(c). De
Cecco, 216 F.3d at 1032. And we used the terms while
observing that a respondent’s dumping margin may
change if the respondent changes its pricing behavior.
See Parkdale Int’l v. United States, 475 F.3d 1375, 1380
(Fed. Cir. 2007) (using “commercial realit[y]” and “accu-
rate[]” to describe the attendant changes in a dumping
pedes an investigation, use the best information
otherwise available.
19 U.S.C. § 1677e(c) (1988).
14 NAN YA PLASTICS CORP. v. UNITED STATES
margin following a respondent’s change in pricing behav-
ior).
Since 2010, we began to use the terms with greater
frequency. For example, in reviewing a Commerce ad-
verse facts available determination made during the first
administrative review of an order, we said that the peti-
tion rate Commerce selected “did not . . . represent com-
mercial reality” within the industry in light of the
dumping margins calculated at the end of the investiga-
tion 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 determina-
tion 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 calculated using anoth-
er respondent’s verified information and that Commerce
applied as adverse facts available in a later segment and
holding that accuracy concerns cannot overcome Com-
merce’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 Yang-
zhou 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.
8 Our decision in Bestpak used “commercial reality”
and “economic reality” synonymously. 716 F.3d at 1378–
NAN YA PLASTICS CORP. v. UNITED STATES 15
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 exam-
ined respondent’s “commercial reality”).
We clarify that “commercial reality” and “accurate”
represent reliable guideposts for Commerce’s determina-
tions. Those terms must be considered against what the
antidumping statutory scheme demands. See Chevron,
467 U.S. at 842–43 (holding that agencies and the courts
must follow Congress’s unambiguous directive or the
agencies otherwise must provide a permissible construc-
tion of an ambiguous statute). The term “commercial
reality” does not appear in the statutes that Commerce
administers, 19 U.S.C. § 1671 et. seq, and the term “accu-
rate” appears only once, id. § 1677m(b) (explaining that a
party that provides factual information to Commerce
“shall certify that such information is accurate and com-
plete to the best of that person’s knowledge”). 9 Congress
has provided specific methods for Commerce to employ
when it executes its duties, such as in calculating normal
value or export price, §§ 1677a (export price), 1677b
(normal value), or when the agency assigns rates on the
basis of adverse facts available, § 1677e(b). When Con-
gress directs the agency to measure pricing behavior and
80. In that decision, we borrowed the statement “econom-
ic reality” from the Supreme Court’s opinion in Eurodif,
id. at 1378, which held that “public law is not constrained
by private fiction” because the statute directed Commerce
to treat the leasing arrangements at issue in that case as
sales of goods, rather than services rendered. See Euro-
dif, 555 U.S. at 317–18.
9 None of our decisions to date have quoted the
term “accurate” from § 1677m(b).
16 NAN YA PLASTICS CORP. v. UNITED STATES
otherwise execute its duties in a particular manner,
Commerce need not examine the economic or commercial
reality of the parties specifically, or of the industry more
generally, in some broader sense. See Eurodif, 555 U.S.
at 317–18 (explaining that “public law is not constrained
by private fiction” when Congress has entrusted Com-
merce to take particular action). The statute, or Com-
merce’s permissible interpretation of it, provides the
backdrop against which we must review the agency’s
determination. Chevron, 467 U.S. at 842–43.
Our case law and the statute thus teach that a Com-
merce 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 require-
ments” (citation omitted)); KYD, 607 F.3d at 768 (discuss-
ing 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 underly-
ing calculations later proved not to be “credible,” meaning
that Commerce had not used a lawful method to assign a
dumping margin under § 1677e(b) (citation omitted)).
Our holding reflects what the statutory scheme already
requires of Commerce to support its determinations. 19
U.S.C. § 1516a(b)(1)(B)(i) (explaining that Commerce’s
determination will be sustained unless it is “unsupported
by substantial evidence on the record, or otherwise not in
accordance with law”). And it reflects the familiar princi-
ple that “[a]dministrative decisions should be set
aside . . . only for substantial procedural or substantive
reasons as mandated by statute, . . . not simply because
the court is unhappy with the result reached.” Vt. Yankee
NAN YA PLASTICS CORP. v. UNITED STATES 17
Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435
U.S. 519, 558 (1978) (internal citation omitted). As we
have said before about the antidumping law, “[o]ur duty is
not to weigh the wisdom of, or to resolve any struggle
between, competing views of the public interest, but
rather to respect legitimate policy choices made by [Com-
merce] in interpreting and applying the statute.” Su-
ramerica de Aleaciones Laminadas, C.A. v. United States,
966 F.2d 660, 665 (Fed. Cir. 1992) (citation omitted).
The court does not use “accurate” and “commercial re-
ality” 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 evi-
dence 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 avail-
able in that situation to assign the respondent a margin,
19 U.S.C. § 1677e(b); see also PSC VSMPO–Avisma Corp.
v. United States, 688 F.3d 751, 760 (Fed. Cir. 2012) (ex-
plaining that “absent constitutional constraints or ex-
tremely compelling circumstances[,] the administrative
agencies should be free to fashion their own rules of
procedure and to pursue methods of inquiry capable of
permitting them to discharge their multitudinous duties”
(internal quotation marks, brackets, and citation omit-
ted)). The statutory scheme measures through specific
methods non-commercial pricing behavior deemed unfair
by Congress—namely, dumping. 19 U.S.C. § 1671 et. seq.
To obligate Commerce to account for other market condi-
tions that the statute does not “misconceives not only the
scope of the agency’s statutory responsibility, but also the
nature of the administrative process,” Vt. Yankee Nuclear
Power Corp., 435 U.S. at 550, and could subject Com-
18 NAN YA PLASTICS CORP. v. UNITED STATES
merce to allegations that it acts ultra vires in future
administrative proceedings, see City of Arlington v. FCC,
133 S. Ct. 1863, 1869 (2013) (explaining that an agency’s
“power to act and how [it is] to act is authoritatively
prescribed by Congress, so that when [it] act[s] improper-
ly, . . . what [it] do[es] is ultra vires”). It also would
permit courts to reach “results-oriented” outcomes not
intended by Congress. See, e.g., Viraj Grp. v. United
States, 476 F.3d 1349, 1358 (Fed. Cir. 2007) (a court errs
in adopting an interpretation of a statute that “would
create a tremendous burden on Commerce that is not
required or suggested by the statute”); see also JBF RAK
LLC v. United States, 790 F.3d 1358, 1368 (Fed. Cir.
2015) (discussing same). “Indeed, the pursuit of what the
court perceives to be the best or correct result would
render judicial review totally unpredictable.” PSC, 688
F.3d at 761 (internal quotation marks and citation omit-
ted).
B. Nan Ya Fails to Demonstrate Error by Commerce
Nan Ya alleges that Commerce’s determination does
not comport with what 19 U.S.C. 1677e(b) and (c) de-
mand. Appellant’s Br. 5–35. We discuss each set of
arguments in turn.
1. Commerce’s Decision to Use Shinkong’s Highest Trans-
action-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. 19 U.S.C. § 1677e(b)(4). In its remand rede-
termination, Commerce found that language ambiguous
because it does not directly address whether the agency
may use the highest “transaction-specific margin from an
ongoing segment . . . as a total [adverse facts available]
rate.” S.A. 111. Nevertheless, Commerce found that the
statute reasonably could be read to allow such use be-
NAN YA PLASTICS CORP. v. UNITED STATES 19
cause it reflects “a model-specific comparison of a re-
spondent’s U.S. sale price to its home market sale price—
the quintessential comparison for a dumping margin.”
S.A. 112–13. Finally, it found that the SAA supports its
interpretation. S.A. 113.
We disagree with Commerce that the phrase “any
other information placed on the record” in 19 U.S.C.
§ 1677e(b)(4) is ambiguous and, instead, hold that the
statute’s plain terms permit the agency to apply
Shinkong’s highest transaction-specific margin as Nan
Ya’s adverse facts available rate. Under the first step of
Chevron, “we must first carefully investigate the matter
to determine whether Congress’s purpose and intent on
the question at issue is judicially ascertainable,” using
“traditional tools of statutory construction.” Timex V.I.,
Inc. v. United States, 157 F.3d 879, 881–82 (Fed. Cir.
1998) (internal quotation marks and citations omitted).
One such canon explains that, in the absence of a statuto-
ry definition, “we construe . . . statutory term[s] in ac-
cordance with [their] ordinary or natural meaning.” FDIC
v. Meyer, 510 U.S. 471, 476 (1994) (citation omitted).
The statute does not define the phrase “any other in-
formation 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.”
Any, 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 conclu-
sion 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 (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 conclusion is consistent with what we have said
20 NAN YA PLASTICS CORP. v. UNITED STATES
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 discre-
tion to presume that the highest prior margin reflects the
current margins.” (citation omitted)).
Our conclusion finds further support in the structure
of § 1677e. As explained below, Congress did not require
Commerce to corroborate information that it uses in the
subject review if the agency obtained the information in
the course of that segment; however, Congress required
Commerce to corroborate information from a prior seg-
ment of the proceeding that it uses as adverse facts avail-
able in a later segment. 19 U.S.C. § 1677e(b)–(c). That
Congress decided not to require Commerce to corroborate
information obtained in this review, such as Shinkong’s,
further evinces that Commerce has broad discretion to
choose among the available record information. See, e.g.,
Russello v. United States, 464 U.S. 16, 23 (1983)
(“‘[W]here Congress includes particular language in one
section of a statute but omits it in another . . . , it is
generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.’” (cita-
tion omitted)). Because the statute’s text “answers the
question, that is the end of the matter.” 10 Timex, 157
F.3d at 882 (citation omitted).
Nan Ya alleges that Commerce unlawfully interpreted
“any other information placed on the record” in 19 U.S.C.
§ 1677e(b)(4) as allowing it to use the highest transaction-
specific margin on the record of the review. According to
Nan Ya, Commerce’s interpretation unreasonably: (1)
10 We observe that the SAA mentions only that
Commerce may use “other information placed on the
record”; it does not provide any limitation on which in-
formation the agency may use. SAA at 870, 1994
U.S.C.C.A.N. at 4199.
NAN YA PLASTICS CORP. v. UNITED STATES 21
incorporates within its ambit “a de minimis amount of
sales” that results in a margin “that is many multiples
more than all calculated margins,” Appellant’s Br. 5
(capitalization omitted); (2) permits the agency to use a
margin that is “aberrant” and otherwise falls outside the
“continuum” of calculated margins in view of various
statistical analyses, id. at 8, 13–17; (3) relies upon incom-
plete criteria in light of other statutory and regulatory
criteria, id. at 17–21; (4) relies upon the absence of a
request from Shinkong to exclude the transaction giving
rise to the 74.34% rate, id. at 23–25; and (5) creates a per
se rule that is inconsistent with agency practice, id. at 21–
23.
As an initial matter, we observe that Nan Ya fails to
make these arguments within the operative Chevron
framework. That misstep typically warrants a finding of
waiver. See United States v. Great Am. Ins. Co., 738 F.3d
1320, 1328 (Fed. Cir. 2013) (“It is well established that
arguments that are not appropriately developed in a
party’s briefing may be deemed waived.” (citations omit-
ted)); Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir.
1983) (finding waiver when “counsel has made no attempt
to address the issue” because “[t]he premise of our adver-
sarial system is that appellate courts do not sit as self-
directed boards of legal inquiry and research, but essen-
tially as arbiters of legal questions presented and argued
by the parties before them”); see also Zhejiang Sanhua Co.
v. United States, 61 F. Supp. 3d 1350, 1358 (Ct. Int’l
Trade 2015) (citing Great American Insurance and Car-
ducci in holding that a party waived its arguments for
failing to raise them within the operative Chevron frame-
work); JBF RAK LLC v. United States, 991 F. Supp. 2d
1343, 1356 (Ct. Int’l Trade 2014) (citing Great American
Insurance in reaching the same conclusion); MTZ
Polyfilms, Ltd. v. United States, 659 F. Supp. 2d 1303,
1308–09 (Ct. Int’l Trade 2009) (citing Carducci in reach-
22 NAN YA PLASTICS CORP. v. UNITED STATES
ing same conclusion). Nevertheless, for clarity, we ad-
dress Nan Ya’s contentions.
Nan Ya fails to recognize that neither “any other in-
formation placed on the record” in 19 U.S.C. § 1677e(b)(4),
nor any other provision in subsection (b) contains any of
the requirements it alleges. Section 1677e(b) states:
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 reach-
ing the applicable determination under this subti-
tle, 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 un-
der this subtitle,
(3) any previous review under section 1675 of this
title or determination under section 1675b of this
title, or
(4) any other information placed on the record.
19 U.S.C. § 1677e(b). The statute simply does not require
Commerce to select facts that reflect a certain amount of
sales, yield a particular margin, fall within a continuum
according to the application of particular statistical meth-
ods, or align with standards articulated in other statutes
and regulations. Congress decided what requirements
Commerce must fulfill in reaching its determinations,
§ 1677e(b), and we do not impose conditions not present in
or suggested by the statute’s text. See, e.g., JBF, 790 F.3d
at 1368; Viraj Grp., 476 F.3d at 1357–58.
NAN YA PLASTICS CORP. v. UNITED STATES 23
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 transac-
tion-specific margin.”); S.A. 127 (explaining that Com-
merce “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 weighted-average margins from any seg-
ment of the proceeding are “insufficient to induce coopera-
tion,” then it will use other transaction-specific margins).
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 argu-
ment. The SAA explains that
[w]here a party has not cooperated, Com-
merce . . . 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 [Com-
merce] 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
24 NAN YA PLASTICS CORP. v. UNITED STATES
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 Re-
quirement in 19 U.S.C. § 1677e(c) Does Not Apply
Nan Ya next argues that Commerce’s determination
“violates the statutory corroboration requirement” be-
cause Commerce did not corroborate Nan Ya’s infor-
mation from the immediately-preceding review that it
used to support its selection of the 74.34% rate. Appel-
lant’s Br. 28 (capitalization omitted). Nan Ya’s argument
overlooks the plain language of 19 U.S.C. § 1677e(c).
Before we address Nan Ya’s argument, we first must
determine what § 1677e(c) requires. Section 1677e(c)
states that
[w]hen [Commerce] . . . relies on secondary infor-
mation rather than on information obtained in the
course of an investigation or review, [Com-
merce] . . . shall, to the extent practicable, corrob-
orate that information from independent sources
that are reasonably at [its] disposal.
19 U.S.C. § 1677e(c).
Commerce properly found that § 1677e(c) unambigu-
ously does not require the agency to corroborate infor-
mation obtained during the course of the subject segment
(i.e., primary information) when it uses that information
NAN YA PLASTICS CORP. v. UNITED STATES 25
as facts available, adverse or otherwise. 11 S.A. 108–10 &
nn.2 & 3. The statute’s text contrasts “information ob-
tained in the course of . . . [a] review,” such as Shinkong’s,
with information from a prior segment of the proceeding
(i.e., secondary information). 19 U.S.C. § 1677e(c). That
dichotomy supports Commerce’s interpretation that the
corroboration requirement does not apply when Com-
merce uses primary information, rather than secondary
information, when selecting from among the adverse facts
available. See Russello, 464 U.S. at 23. The SAA con-
firms that primary information does not meet the defini-
tion of “secondary information” that requires
corroboration. See SAA at 870, 1994 U.S.C.C.A.N. at 4199
(contrasting primary and secondary information, defining
the latter as “information derived from the petition that
gave rise to the investigation . . . , the final determination
[from the investigation], or any previous re-
view . . . concerning the subject merchandise”). And we
previously have recognized, albeit not in precise Chevron
terms, that § 1677e(c) unambiguously does not require
Commerce to corroborate primary information. See
Gallant Ocean, 602 F.3d at 1324 (“Ta Chen was not a
corroboration case as Commerce relied on primary infor-
mation.” (discussing 298 F.3d at 1339)).
The CIT erred to the extent that it held that the cor-
roboration requirement in § 1677e(c) applies when Com-
merce relies upon primary information. Nan Ya II, 6 F.
Supp. 3d at 1367–68. It found that Commerce made “a
fairly airtight argument” under “a straightforward Chev-
ron step one” analysis of § 1677e(c), in which the agency
11 During oral argument, Nan Ya conceded that 19
U.S.C. § 1677e(c) unambiguously does not require Com-
merce to corroborate primary information. See Oral
Argument at 8:28–9:54, http://oralarguments.cafc.us
courts.gov/default.aspx?fl=2015-1054.mp3.
26 NAN YA PLASTICS CORP. v. UNITED STATES
determined that it is not required to corroborate primary
information. Id. at 1367. Nevertheless, the CIT held the
corroboration requirement under § 1677e(c) applies to
primary information and, thus, so does De Cecco. Id. at
1367–68. That holding conflicts with the plain language
of § 1677e(c), the guidance provided in the SAA, and other
CIT decisions. See § 1677e(c) (contrasting “information
obtained in the course of . . . [a] review” with secondary
information); SAA at 870, 1994 U.S.C.C.A.N. at 4199
(same); see also iScholar Inc. v. United States, No. 10-
00107, 2011 WL 109014, at *2–3 (Ct. Int’l Trade Jan. 13,
2011) (where the CIT did not require Commerce to cor-
roborate adverse facts available pursuant to 19 U.S.C.
§ 1677e(c) when the agency selected information from the
subject segment); Ass’n of Am. Sch. Paper Suppliers v.
United States, 32 Ct. Int’l Trade 1196, 1202–04 (2008)
(same). The CIT’s interpretation of § 1677e(c) appears
motivated by the fact that “Commerce did not simply
select Shinkong’s highest transaction specific margin in
setting Nan Ya’s rate, and leave it at that.” Nan Ya II, 6
F. Supp. 3d at 1367. That Commerce relied upon corrobo-
rating evidence (i.e., Nan Ya’s data from the immediately-
preceding review) to support its use of primary infor-
mation does not change the text of § 1677e(c), which
explains that Commerce is not required to corroborate
primary information. Chevron, 467 U.S. at 842–43 (hold-
ing that agencies and the courts must follow Congress’s
unambiguous directive).
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.” 19
U.S.C. § 1677e(c). As the CIT correctly observed, to hold
otherwise would lead to the absurd result in which Com-
NAN YA PLASTICS CORP. v. UNITED STATES 27
merce corroborates “ad infinitum.” Nan Ya II, 6 F. Supp.
3d at 1371. 12
3. Exhaustion and Waiver Bars Nan Ya’s Remaining
Arguments
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
12 Notwithstanding its unequivocal statement that it
has raised only legal challenges in this appeal, Appel-
lant’s Reply Br. 5, Nan Ya contends that “even erroneous-
ly assuming use of uncorroborated data is permissible,
Commerce’s own continuum test as to such data indicates
that the 74.34% [adverse facts available rate] is not
supported by substantial evidence,” Appellant’s Br. 29
(capitalization omitted); see id at 29–35 (discussing other
evidence). It also contends that Commerce erred in
relying upon the absence of a request from Shinkong to
exclude the transaction giving rise to the 74.34% rate. Id.
at 23–25. These arguments contest the weight that
Commerce afforded to competing evidence, which we may
not disturb. See Matsushita Elec. Indus. Co. v. United
States, 750 F.2d 927, 936 (Fed. Cir. 1984). In any event,
we agree with the CIT that substantial evidence supports
Commerce’s selection of the 74.34% rate because the
transaction underlying that rate “involved a larger quan-
tity than many of Shinkong’s other sales and differed
from other models in the least important physical charac-
teristics” and “Nan Ya was capable of dumping at
74.34[%] as evidenced by Nan Ya’s own data” from the
immediately-preceding review. Nan Ya II, 6 F. Supp. 3d
at 1369–70 (internal quotation marks and citations omit-
ted).
28 NAN YA PLASTICS CORP. v. UNITED STATES
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 administra-
tive remedies.” (footnote omitted)); 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 ap-
peal.”). 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.uscou-
rts.gov/default.aspx?fl=2015-1054.mp3.
CONCLUSION
Commerce may use, as adverse facts available pursu-
ant to 19 U.S.C. § 1677e(b)(4), the highest transaction-
specific margin on the record of the subject review. If
Commerce selects the highest transaction-specific margin
from the subject review from among the adverse facts
available, it need not corroborate that information pursu-
ant to § 1677e(c). Although the provisions of the Trade
Preferences Extension Act of 2015 do not govern our
review of Commerce’s determinations in this appeal, Ad
Hoc Shrimp, 802 F.3d at 1348–52, we note that Congress
confirmed there that Commerce has the “discretion to
apply [the] highest rate” and need not demonstrate that a
particular dumping margin “reflects an alleged commer-
cial reality of the interested party,” Trade Preferences
Extension Act of 2015, Sec. 502(3), § 1677e(d)(2), (3)(B),
129 Stat. at 384.
NAN YA PLASTICS CORP. v. UNITED STATES 29
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