Dongtai Peak Honey Industry Co. v. United States , 777 F.3d 1343 ( 2015 )

United States Court of Appeals
for the Federal Circuit
______________________
DONGTAI PEAK HONEY INDUSTRY CO., LTD.,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
AMERICAN HONEY PRODUCERS ASSOCIATION,
AND SIOUX HONEY ASSOCIATION,
Defendants-Appellees.
______________________
2014-1479
______________________
Appeal from the United States Court of International
Trade in No. 1:12-cv-00411-NT, Senior Judge Nicholas
Tsoucalas.
______________________
Decided: January 30, 2015
______________________
YINGCHAO XIAO, Lee & Xiao, of San Marino, Califor-
nia, for plaintiff-appellant. With her on the brief was
DOUGLAS CAMPAU.
JANE C. DEMPSEY, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for defendant-appellee United
States. With her on the brief were STUART F. DELERY,
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and REGINALD T. BLADES, JR., Assistant Director.
2 DONGTAI PEAK HONEY INDUSTRY v. US
MICHAEL J. COURSEY, Kelley Drye & Warren LLP, of
Washington, DC, for defendants-appellees American
Honey Producers Association and the Sioux Honey Asso-
ciation. With him on the brief were R. ALAN LUBERDA and
BENJAMIN BLASE CARYL.
______________________
Before WALLACH, TARANTO, and CHEN, Circuit Judges.
WALLACH, Circuit Judge.
Appellant Dongtai Peak Honey Industry Co., Ltd.
(“Dongtai Peak”) appeals the decision of the United States
Court of International Trade (“CIT”) denying its Motion
for Judgment on the Agency Record. See Dongtai Peak
Honey Indus. Co. v. United States, 971 F. Supp. 2d 1234(Ct. Int’l Trade 2014). Because the United States De-
partment of Commerce (“Commerce”) properly exercised
its discretion in denying Dongtai Peak’s untimely filings,
and because Commerce’s decisions to treat Dongtai Peak
as part of the China-wide entity and to impose a dumping
margin based on adverse facts available were supported
by substantial evidence and were in accordance with law,
this court affirms.
BACKGROUND
I. Facts
In 2001, Commerce imposed an antidumping duty or-
der on honey imported from the People’s Republic of
China (“China”). Honey From the People’s Republic of
China, 66 Fed. Reg. 63,670 (Dep’t of Commerce Dec. 10,
2001) (notice of amended final determination of sales at
less than fair value and antidumping duty order) (the
“Order”). In January 2012, Commerce initiated the tenth
administrative review of the Order for the period of
review December 1, 2010, through November 30, 2011.
Initiation of Antidumping & Countervailing Duty Admin-
istrative Reviews & Requests for Revocation in Part, 77
DONGTAI PEAK HONEY INDUSTRY v. US 3
Fed. Reg. 4759 (Dep’t of Commerce Jan. 31, 2012) (“Initia-
tion”). Dongtai Peak was named a respondent in this
review. Id. at 4761.
As part of the review, on March 2, 2012, Commerce is-
sued a non-market economy questionnaire (the “Ques-
tionnaire”) to Dongtai Peak, which included Section A
(General Information), with a deadline of March 23, 2012,
and Sections C (Sales to the United States) and D (Fac-
tors of Production), with a deadline of April 8, 2012.
Appellant timely filed a response to Section A of the
Questionnaire, and filed its responses to Sections C and D
after receiving a one-day extension of the deadline from
Commerce. Because Appellant’s extension request was
received less than six minutes before the submission
deadline for Sections C and D, in granting the request
Commerce stated: “To ensure that [Commerce] is fully
able to consider requests of this nature, we advise Dong-
tai Peak to plan accordingly and file any future extension
requests as soon as it suspects additional time may be
necessary.” J.A. 157.
On April 3, 2012, Commerce issued a Supplemental
Section A Questionnaire (the “Supplemental Question-
naire”) to address certain deficiencies in Dongtai Peak’s
original Section A response. The deadline to respond to
the Supplemental Questionnaire was “COB [Close of
Business], April 17, 2012.” J.A. 158. However, Dongtai
Peak failed to submit its response by this deadline.
Instead, on April 19, 2012, Dongtai Peak filed an untime-
ly request (the “April 19 Letter”) to extend the deadline to
April 27, 2012, claiming good cause for an extension
existed because of the overlap with the deadline to file its
responses to Sections C and D, a national holiday, and
various issues with its translator, its United States-based
attorneys, and its computers. In response, the American
Honey Producers Association and Sioux Honey Associa-
tion (“Petitioners”) submitted an objection to the untimely
extension request. On April 24, 2012, Appellant submit-
4 DONGTAI PEAK HONEY INDUSTRY v. US
ted a response to the objection, restating its claim that
good cause existed for the extension. Then, on April 27,
2012, Dongtai Peak submitted a second request for an
additional one-day extension of the deadline (the “April 27
Letter”). Following the close of business on April 27,
2012, Appellant submitted its response to the Supple-
mental Questionnaire (the “Supplemental Response”)
without Commerce having granted the extension requests
in the April 19 or April 27 Letters.
On May 22, 2012, Commerce denied Dongtai Peak’s
extension requests because “good cause [did] not exist . . .
to extend retroactively its deadline.” J.A. 190. Commerce
noted although Appellant explained why it could not
timely file its Supplemental Response, it “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.” J.A. 190. It also noted Dongtai
Peak had “previously been cautioned with respect to late
extension requests when it requested an extension of the
deadline to file its Section C and D questionnaire re-
sponses five minutes before the deadline for that ques-
tionnaire response.” J.A. 189. Commerce therefore
removed Appellant’s extension requests and its Supple-
mental Response from the official record.
Dongtai Peak requested reconsideration of this de-
termination, but Commerce upheld its decision to deny
the extension requests and to remove the requests and
the Supplemental Response from the record in its Prelim-
inary Results. Honey From the People’s Republic of Chi-
na, 77 Fed. Reg. 46,699, 46,701–02 (Dep’t of Commerce
Aug. 6, 2012) (“Preliminary Results”). In doing so, Com-
merce again noted the April 19 Letter did not address
Dongtai Peak’s inability to file an extension request by
the deadline, and stated the deadline was significant
because Commerce had found Appellant’s United States
sales to be non-bona fide in prior reviews, and therefore
needed time for a full analysis of the information sought
DONGTAI PEAK HONEY INDUSTRY v. US 5
in the Supplemental Questionnaire. Id. Accordingly, in
the Preliminary Results, Commerce determined that
without the Supplemental Response, the record lacked
sufficient information to calculate a separate rate for
Dongtai Peak, and therefore the company would be con-
sidered part of the China-wide entity. Id. at 46,702. In
addition, Commerce determined the China-wide entity did
not cooperate to the best of its ability during the review,
and therefore Commerce relied entirely on adverse facts
available (“AFA”) to determine the dumping margin for
the China-wide entity. Id. Commerce selected a rate of
$2.63 per kilogram based on the rate calculated for Anhui
Native Produce Import & Export Corporation (“Anhui
Native”) during the sixth administrative review, which
had also been assigned to the China-wide entity in the
sixth and seventh administrative reviews. Id. at 46,703.
On November 26, 2012, the Final Results of the re-
view were issued, upholding the Preliminary Results in
their entirety. Administrative Review of Honey From the
People’s Republic of China, 77 Fed. Reg. 70,417 (Dep’t of
Commerce Nov. 26, 2012) (final results of antidumping
duty administrative review) (“Final Results”), and accom-
panying Issues & Decision Memorandum (Nov. 19, 2012)
(J.A. 137–56) (“Issues & Dec. Mem.”).
II. Proceedings
In December 2012, Dongtai Peak filed an action in the
CIT challenging several aspects of the Final Results,
including: (1) the denial of its extension requests and the
removal of those requests and the Supplemental Response
from the record; (2) Commerce’s decision to consider
Dongtai Peak part of the China-wide entity; (3) Com-
merce’s use of AFA to calculate the dumping margin for
the China-wide rate; and (4) the $2.63 per kilogram AFA
rate itself. Dongtai Peak moved for Judgment on the
Agency Record, which the CIT denied on March 21, 2014.
6 DONGTAI PEAK HONEY INDUSTRY v. US
In response to Dongtai Peak’s argument that Com-
merce improperly rejected its extension requests and
removed the filings from the record, the CIT found Com-
merce’s determinations were consistent with its regula-
tions and within its discretion. In addition, the CIT found
“Commerce reasonably determined that [Dongtai] Peak’s
extension requests were unsupported by good cause”
because Commerce found (1) Appellant “failed to comply
with the regulations by filing its extension requests after
the deadline expired”; (2) “the facts of the instant case did
not warrant granting [Dongtai] Peak’s untimely re-
quests”; and (3) Appellant “was aware of the deadline in
question and its particular importance.” Dongtai Peak,
971 F. Supp. 2d at 1240 (citing Issues & Dec. Mem. at 5–
6). The CIT also found Commerce’s denial of the exten-
sion requests did not violate Appellant’s “statutory rights”
because the company had notice of the deadline and an
opportunity to comply, but simply failed to file a timely
extension request. Id. at 1240–41.
As to Dongtai Peak’s argument that Commerce im-
properly denied it separate rate status, the CIT found
Commerce reasonably concluded that without the Sup-
plemental Response, “[t]he record lacked certain infor-
mation regarding [Dongtai] Peak’s separate rate
eligibility because [it] failed to timely file its extension
requests and failed to show good cause to extend the
deadline.” Id. at 1242. As to Appellant’s initial Section A
response that remained on the record, the CIT found the
company did not identify any evidence in that response
demonstrating the lack of government control as required
for separate rate status. Id. Although there were trans-
lations of Chinese law and information concerning Dong-
tai Peak’s ownership and corporate structure in the initial
Section A response, the CIT found this did not render
Commerce’s decisions unsupported by substantial evi-
dence. Id. Thus, the CIT held Commerce reasonably
included Dongtai Peak in the China-wide entity.
DONGTAI PEAK HONEY INDUSTRY v. US 7
Regarding Dongtai Peak’s challenge to Commerce’s
use of AFA in calculating the China-wide rate, the CIT
found Commerce’s determination was reasonable and
consistent with law. Id. at 1244. In particular, the CIT
observed “Commerce did not simply equate [Dongtai]
Peak’s untimely submission with a failure to cooperate,”
but “considered the circumstances of [Dongtai] Peak’s
untimely submission.” Id. As to the actual rate calculat-
ed using AFA, the CIT noted Dongtai Peak provided no
evidence of market fluctuations or other changes in the
Chinese honey industry since the 2006–2007 review, and
therefore its “bare assertion that such changes occurred is
insufficient to undermine Commerce’s selection of [Anhui
Native’s] rate to determine the margin for the [China]-
wide entity.” Id. at 1244. The CIT therefore concluded
Commerce’s selection of the rate was supported by sub-
stantial evidence.
Dongtai Peak filed a timely appeal and this court has
jurisdiction under 28 U.S.C. § 1295(a)(5) (2012).
DISCUSSION
I. Standard of Review
This court reviews decisions of the CIT de novo, “ap-
ply[ing] anew the same standard used by the [CIT].”
Mittal Steel Point Lisas Ltd. v. United States, 548 F.3d
1375, 1380 (Fed. Cir. 2008). Under that standard, this
court must uphold Commerce’s determinations unless
they are “unsupported by substantial evidence on the
record, or otherwise not in accordance with law.” 19
U.S.C. § 1516a(b)(1)(B)(i) (2006). “Although such review
amounts to repeating the work of the [CIT], we have
noted that ‘this court will not ignore the informed opinion
of the [CIT].’” Diamond Sawblades Mfrs. Coal. v. United
States, 612 F.3d 1348, 1356 (Fed. Cir. 2010) (quoting
Suramerica de Aleaciones Laminadas, C.A. v. United
States, 44 F.3d 978, 983 (Fed. Cir. 1994)); see also Cleo
Inc. v. United States, 501 F.3d 1291, 1296 (Fed. Cir. 2007)
8 DONGTAI PEAK HONEY INDUSTRY v. US
(“When performing a substantial evidence review, . . . we
give great weight to the informed opinion of the [CIT].
Indeed, it is nearly always the starting point of our analy-
sis.”) (internal quotation marks and citation omitted).
Substantial evidence is defined as “more than a mere
scintilla,” as well as evidence that a “reasonable mind
might accept as adequate to support a conclusion.” Con-
sol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938).
This court’s review is limited to the record before Com-
merce in the particular review proceeding at issue and
includes all evidence that supports and detracts from
Commerce’s conclusion. Sango Int’l L.P. v. United States,
567 F.3d 1356, 1362 (Fed. Cir. 2009). An agency finding
may still be supported by substantial evidence even if two
inconsistent conclusions can be drawn from the evidence.
Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966).
II. Legal Framework
The antidumping statute authorizes Commerce to im-
pose duties on imported goods that are sold in the United
States at less-than-fair value if it is determined that a
domestic industry is “materially injured, or threated with
material injury.” See 19 U.S.C. § 1673. Once an anti-
dumping duty order covering certain goods is in place,
“Commerce periodically reviews and reassesses anti-
dumping duties” during administrative reviews. Gallant
Ocean (Thai.) Co. v. United States, 602 F.3d 1319, 1321
(Fed. Cir. 2010) (citing 19 U.S.C. §§ 1673, 1675(a)).
In calculating antidumping margins, Commerce gen-
erally determines individual dumping margins (separate
rates) for each known exporter or producer. 19 U.S.C.
§ 1677f-1(c)(1). If it is not practicable to calculate indi-
vidual dumping margins for every exporter or producer,
Commerce may examine a reasonable number of respond-
ents (mandatory respondents), such as Dongtai Peak. See
DONGTAI PEAK HONEY INDUSTRY v. US 9
id. § 1677f-1(c)(2). In antidumping duty proceedings
involving merchandise from a non-market economy, 1
however, Commerce presumes that all respondents are
government-controlled and therefore subject to a single
country-wide rate. See Sigma Corp. v. United States, 117
F.3d 1401, 1405 (Fed. Cir. 1997). Respondents may rebut
this presumption and become eligible for a separate rate
by establishing the absence of both de jure and de facto
government control. Id. If a respondent fails to establish
its independence, Commerce relies upon the presumption
of government control and applies the country-wide rate
to that respondent. Transcom, Inc. v. United States, 182
F.3d 876, 882 (Fed. Cir. 1999).
III. Commerce Properly Exercised Its Discretion in Reject-
ing Appellant’s Extension Requests and Supplemental
Response
On appeal, Dongtai Peak repeats the arguments it
raised before the CIT. First, Appellant argues Com-
merce’s rejection of and removal from the record of its
extension requests and the Supplemental Response was
improper and not in accordance with law because Dongtai
Peak established good cause to extend the deadline. In
1 A “nonmarket economy country” is “any foreign
country that [Commerce] determines does not operate on
market principles of cost or pricing structures, so that
sales of merchandise in such country do not reflect the
fair value of the merchandise.” 19 U.S.C. § 1677(18)(A).
“Because it deems China to be a nonmarket economy
country, Commerce generally considers information on
sales in China and financial information obtained from
Chinese producers to be unreliable for determining, under
19 U.S.C. § 1677b(a), the normal value of the subject
merchandise.” Shanghai Foreign Trade Enters. Co. v.
United States, 318 F. Supp. 2d 1339, 1341 (Ct. Int’l Trade
2004).
10 DONGTAI PEAK HONEY INDUSTRY v. US
particular, Appellant claims good cause was shown in the
April 19 Letter which described Dongtai Peak’s
1) difficulties encountered in overseas communi-
cation between rurally-located Appellant and its
US-based counsel; 2) difficulties encountered in
communication between Appellant and its trans-
lator; 3) difficulties encountered as a consequence
of a 4-day-long Chinese national holiday; 4) debili-
tating computer system malfunctions and related
time-consuming repair efforts; and 5) the unex-
pected burden to Appellant[’s] personnel of having
to prepare responses to [the Supplemental Ques-
tionnaire] and its Section C and D questionnaires
over an overlapping timeframe.
Appellant’s Br. 15. In addition, in contrast to Dongtai
Peak’s purported showing of good cause, Appellant con-
tends Commerce “articulated no basis for [its] conclusion,
such as exactly how or why the explanation provided in
the [April 19 Letter] does not constitute good cause,” and
therefore its determination is “not supported by substan-
tial evidence, and it remains vague as to exactly what
Commerce means by good cause.” Id. 14–15.
Relying on other administrative proceedings, Dongtai
Peak argues “Commerce has a long practice of keeping
[extension] requests on the case record, and approving
them, even when they are submitted subsequent to the
applicable time limit,” and “has articulated no legally
valid reason for its departure from this practice in the
underlying review proceeding.” Id. at 10–11. In addition,
Appellant asserts that while Commerce claimed it needed
time to fully consider extension requests, “there were no
pressing deadlines in the present case that would have
made acceptance and granting of the extension request at
all rushed or difficult.” Id. at 6, 13. To Appellant, this
case “involve[s] a small amount of information (a mere
supplemental questionnaire dealing with a single sec-
DONGTAI PEAK HONEY INDUSTRY v. US 11
tion),” and when Appellant submitted its Supplemental
Response, “there were many months yet before Com-
merce’s final results were due. That is, there was ample
time for Commerce to complete a very thorough and
comprehensive analysis.” Id. at 24 (emphasis added).
Finally, Dongtai Peak argues “fairness and accuracy also
require that Commerce accept the late submission” be-
cause “Commerce’s refusal to extend the deadline unfairly
prejudiced Appellant’s right to receive its own calculated
rate using its own information.” Id. at 6, 25–26.
Under 19 C.F.R. § 351.302(b) (2012), 2 Commerce
“may, for good cause, extend any time limit established by
this part.” A party may request an extension “[b]efore the
applicable time limit . . . expires,” and such a “request
must be in writing, . . . and state the reasons for the
request.” Id. § 351.302(c) (emphasis added). If Commerce
refuses to extend the time limit, it “will not consider or
retain in the official record of the proceeding . . .
[u]ntimely filed factual information, written argument, or
other material that the Secretary rejects.” Id.
§ 351.302(d)(1)(i).
The United States Supreme Court has clarified that,
“[a]bsent constitutional constraints or extremely compel-
ling 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.” Vt. Yankee Nucle-
ar Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S.
519, 543 (1978) (internal quotation marks and citation
2 In September 2013, Commerce amended 19 C.F.R.
§ 351.302, effective October 21, 2013. Extension of Time
Limits, 78 Fed. Reg. 57,790 (Dep’t of Commerce Sept. 20,
2013) (final rule). However, the language quoted herein
reflects the regulations in effect during the underlying
review.
12 DONGTAI PEAK HONEY INDUSTRY v. US
omitted). “Accordingly, absent such constraints or cir-
cumstances, courts will defer to the judgment of an agen-
cy regarding the development of the agency record.” PSC
VSMPO-Avisma Corp. v. United States, 688 F.3d 751, 760
(Fed. Cir. 2012). In addition, “[i]n order for Commerce to
fulfill its mandate to administer the antidumping duty
law, including its obligation to calculate accurate dump-
ing margins, it must be permitted to enforce the time
frame provided in its regulations.” Yantai Timken Co. v.
United States, 521 F. Supp. 2d 1356, 1371 (Ct. Int’l Trade
2007).
Here, Commerce properly exercised its discretion in
rejecting Dongtai Peak’s extension requests and Supple-
mental Responses because (1) the extension requests were
submitted after the established deadline in violation of 19
C.F.R. § 351.302(c), and (2) Appellant failed to show “good
cause” for an extension as required by § 351.302(b). As to
its good cause arguments, Commerce properly found
Dongtai Peak’s April 19 Letter describing its difficulties
in completing the Supplemental Response did not demon-
strate why the company was unable to file timely its
extension request. Indeed, all of the causes of delay noted
in the April 19 Letter were known to Appellant prior to
the April 17th deadline, and did not prevent the company
from filing an extension request before that date. See
Issues & Dec. Mem. at 6 (“[N]one of these reasons ex-
plained why [Dongtai Peak] was unable to file the exten-
sion request before the existing April 17, 2012, deadline
and none of these reasons constitute ‘good cause’ to grant
a late-filed extension request, especially in the context of
an administrative review it requested itself.”). Indeed,
the record shows the company was closed for the Chinese
holiday from April 5 through 8; the computer difficulties
occurred sometime between April 1 and 4; and the dead-
line for the Sections C and D responses was April 9. J.A.
510, 288–92.
DONGTAI PEAK HONEY INDUSTRY v. US 13
Thus, Commerce reasonably determined Dongtai
Peak was entirely capable of at least submitting an exten-
sion request on time, but simply failed to do so; therefore,
good cause did not exist to retroactively extend the dead-
line. Issues & Dec. Mem. at 6; see 19 C.F.R. § 351.302(b),
(c). Having properly denied the extension requests,
Commerce also reasonably determined the Supplemental
Response was untimely and removed it from the record
pursuant to 19 C.F.R. § 351.302(d).
As to Dongtai Peak’s claim that Commerce failed to
identify why the April 19 Letter did not establish good
cause, Appellant misunderstands its obligation to submit
a written extension request before the time limit specified
by Commerce and to “state the reasons for the request.”
Id. § 351.302(c). That is, Commerce was not required to
demonstrate good cause for rejecting Dongtai Peak’s
untimely submissions. As the Government notes, “[i]t is
not for Dongtai Peak to establish Commerce’s deadlines or
to dictate to Commerce whether and when Commerce
actually needs the requested information.” United States’
Br. 23; see PSC VSMPO, 688 F.3d at 760–61 (It is fully
within Commerce’s discretion to “set and enforce dead-
lines” and this court “cannot set aside application of a
proper administrative procedure because it believes that
properly excluded evidence would yield a more accurate
result if the evidence were considered.”).
Appellant’s argument regarding Commerce’s “long
practice” of approving untimely extension requests is
equally unpersuasive. As noted, Commerce may grant
extension requests if it determines the extension request
provides good cause for extending the deadline. 19 C.F.R.
§ 351.302(b). In the various administrative reviews cited
by Appellant, Commerce found good cause was shown and
therefore exercised its discretion in granting the untimely
extension requests. Here, by contrast, Commerce did not
find good cause. In addition, Dongtai Peak’s argument
ignores the fact that Commerce also routinely rejects
14 DONGTAI PEAK HONEY INDUSTRY v. US
untimely-filed submissions. In this case, moreover,
Commerce explicitly cautioned Dongtai Peak on several
occasions against making untimely extension requests.
See, e.g., J.A. 157 (“To ensure that [Commerce] is fully
able to consider requests of this nature, we advise Dong-
tai Peak to plan accordingly and file any future extension
requests as soon as it suspects additional time may be
necessary.”).
As to Dongtai Peak’s presumption that Commerce had
adequate time to process this review, Commerce should
not be burdened by requiring acceptance of untimely
filings closer to the final deadline for the administrative
review. While Appellant claims this case involves “a mere
supplemental questionnaire” that Commerce had “ample
time” to review, Appellant’s Br. 24, the Supplemental
Questionnaire is actually comprised of nine pages of
questions regarding Dongtai Peak’s management, share-
holders, accounting practices, affiliations, United States
sales, domestic sales, and merchandise, and was due less
than four months before the deadline for Commerce to
issue the Preliminary Results, J.A. 158–77. Furthermore,
as Commerce specifically noted, the deadlines in this case
were important because in two prior reviews Commerce
found Dongtai Peak’s United States sales to be not bona
fide, a determination that requires careful consideration
of the totality of circumstances. See Issues & Dec. Mem.
at 5. Thus, the Supplemental Questionnaire was intend-
ed to elicit information “regarding [Dongtai Peak’s] re-
ported quantity and value, its separate rate status,
structure and affiliations, sales process, accounting and
financial practices; and merchandising,” information
which “has proven vital to [Commerce’s] prior non-bona
fide analyses.” Id. Commerce fully explained its need for
a “significant amount of time and effort to gather the
necessary information, consider the facts of the record,
and provide interested parties with an appropriate period
for comments and rebuttal comments.” Id. at 13.
DONGTAI PEAK HONEY INDUSTRY v. US 15
As to Dongtai Peak’s fairness and accuracy argument,
this court has made clear Commerce’s rejection of untime-
ly-filed factual information does not violate a respondent’s
due process rights when the respondent had notice of the
deadline and an opportunity to reply. See PSC VSMPO,
688 F.3d at 761–62. Here, the record shows Dongtai Peak
was afforded both notice and a meaningful opportunity to
be heard. In particular, as Commerce noted, Appellant
“was well aware of the established deadlines in this case”;
Commerce “advised [Dongtai] Peak of the importance of
submitting its documents in a timely manner”; and Dong-
tai Peak “was aware of the consequences of its not doing
so.” Issues & Dec. Mem. at 11 (citations omitted).
Accordingly, because Dongtai Peak failed to establish
good cause with respect to its failure to submit its exten-
sion requests in a timely manner, Commerce reasonably
exercised its discretion in rejecting the requests and in
enforcing the applicable deadline.
IV. Commerce’s Decision to Deny Appellant Separate
Rate Status Was Supported by Substantial Evidence and
Was in Accordance with Law
Next, Dongtai Peak argues Commerce erred in deny-
ing it separate rate status because “[t]he record contained
substantial and compelling evidence indicating that
[Appellant] is eligible for a separate rate.” Appellant’s Br.
28. Specifically, Appellant claims the initial Section A
Questionnaire “included no less than ten pages of ques-
tions, including extensive questions specifically address-
ing separate rate eligibility,” and Dongtai Peak “provided
extensive narrative responses to these questions, as well
as all required supporting documentation.” Id. at 29. In
addition, Appellant claims, there was no record evidence
that its export activities were subject to government
control, so Commerce’s conclusion that Appellant was not
entitled to separate rate status was not based on substan-
tial evidence. Dongtai Peak also argues the Supplemental
16 DONGTAI PEAK HONEY INDUSTRY v. US
Questionnaire “did not directly address government
control at all, but merely included a handful of ques-
tions—in what Commerce labeled as the ‘Separate Rates’
section of its supplemental questionnaire—having to do
with prior work experience and responsibilities of Appel-
lant’s management and ownership.” Id. at 30.
As noted, in antidumping proceedings involving mer-
chandise from a non-market economy, Commerce pre-
sumes all respondents are government-controlled and
therefore subject to the country-wide rate. See Sigma,
117 F.3d at 1405. Respondents may rebut this presump-
tion and establish eligibility for a separate rate through
evidence of the absence of both de jure and de facto gov-
ernment control. Id. If a respondent fails to do so, how-
ever, Commerce may rely upon the presumption of
government control and apply the country-wide rate to
that respondent. Transcom, 182 F.3d at 882.
Here, substantial evidence supports Commerce’s de-
termination that Dongtai Peak failed to demonstrate the
absence of de facto and de jure government control, as
required for separate-rate status, and therefore that the
company is part of the China-wide entity. Contrary to
Dongtai Peak’s contention, the company’s initial Section A
response was insufficient to establish its separate rate
eligibility. Without a timely-filed Supplemental Re-
sponse, Commerce did not have information regarding
Dongtai Peak’s “shareholders, management, accounting
practices, corporate structure, and affiliations,” and
information addressing whether “several organizations to
which [Dongtai] Peak belonged were state-sponsored,
controlled [Dongtai] Peak’s business operations or coordi-
nated [Dongtai] Peak’s export activities.” Issues & Dec.
Mem. at 12. Furthermore, Dongtai Peak does not identify
any evidence in its initial Section A response that demon-
strates lack of government control. As the CIT properly
found, while the initial Section A response provided “some
evidence of its eligibility for a separate rate,” it was
DONGTAI PEAK HONEY INDUSTRY v. US 17
“insufficient to render Commerce’s decision unsupported
by substantial evidence.” Dongtai Peak, 971 F. Supp. 2d
at 1242.
As to Dongtai Peak’s contention that there was no
record evidence of government control, this argument
ignores that under the law for non-market economy
countries, all respondents are presumed to be subject to
governmental control unless they meet the burden of
proving otherwise. See Sigma, 117 F.3d at 1405. Fur-
ther, while Appellant claims the Supplemental Question-
naire did not request any information that would have
demonstrated Dongtai Peak’s eligibility for a separate
rate, the record shows the Supplemental Questionnaire
contains a “Separate Rates” section requesting specific
information regarding Dongtai Peak’s shareholders,
management, and affiliation with other entities within
the Chinese honey industry, as well as information relat-
ed to quantity and value, structure, sales process, ac-
counting and financial practices, and merchandising. J.A.
158–77. Accordingly, this court agrees with the CIT that
“[b]ecause [Dongtai] Peak failed to file either its [Supple-
mental Response] with this information or an extension
request before the deadline, Commerce reasonably con-
cluded that Peak failed to demonstrate the absence of
government control.” Dongtai Peak, 971 F. Supp. 2d at
1243.
V. Commerce’s Application of AFA and Its Selection of an
AFA Rate Were Supported by Substantial Evidence
Finally, Dongtai Peak argues Commerce’s application
of AFA was improper because Commerce had no basis to
apply AFA aside from the late filing of the Supplemental
Response. Appellant’s Br. 32 (“[F]rom its observation that
it rejected Appellant’s submission as untimely, Commerce
jumped to the conclusion that Appellant ‘did not cooperate
to the best of its ability.’” (citation omitted)). That is, to
Appellant, “there is no meaningful evidence on the record
18 DONGTAI PEAK HONEY INDUSTRY v. US
indicating that Appellant did not cooperate to the best of
its ability.” Id. at 33. At center, Dongtai Peak contends
Commerce is throwing out the entire case record,
terminating the entire review proceeding, and im-
plementing maximum punitive and penalizing
measures (via the application of full [AFA]) simply
because Appellant was two days late requesting a
deadline extension for a mere supplemental ques-
tionnaire dealing with a single section (section
A)—a supplemental questionnaire that Appellant
did ultimately complete and submit to the record.
This is unfair and out of balance, in violation of
fundamental fairness principles of antidumping
law.
Id. at 27.
As to the AFA rate Commerce selected for the China-
wide entity, as noted, Commerce used the calculated rate
for Anhui Native from the 2006–2007 administrative
review. Appellant argues, “[g]iven fluctuations in sales
prices, production and transportation costs, [and] market
conditions, . . . it was unreasonable for Commerce to rely
upon such an old rate, and to assume, without the least
investigation or corroboration, that such a rate was
reliable, relevant, or at all accurate.” Id. at 36. Dongtai
Peak further contends the AFA rate is not based on its
own sales and production data for the current period of
review, therefore violating the requirement that Com-
merce calculate the most accurate dumping rates possible.
Id.
During its periodic administrative reviews, Commerce
requests information from respondents and if a respond-
ent “significantly impedes a proceeding,” Commerce is
permitted to use “facts otherwise available” to determine
an antidumping duty rate. 19 U.S.C. § 1677e(a)(2)(C). If
Commerce further finds a respondent has “failed to coop-
erate by not acting to the best of its ability to comply with
DONGTAI PEAK HONEY INDUSTRY v. US 19
a request for information,” then it “may use an inference
that is adverse to the interests of that party in selecting
from among the facts otherwise available” (i.e., it may
apply AFA). Id. § 1677e(b). “[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) (citation omitted).
In selecting an AFA rate, Commerce may use infor-
mation from the petition, investigation, prior administra-
tive reviews, or “any other information placed on the
record.” 19 U.S.C. § 1677e(b); see Gallant Ocean, 602 F.3d
at 1323 (“[I]n the case of uncooperative respondents,”
Commerce has discretion to “select from a list of second-
ary sources as a basis for its adverse inferences.”); F.lli De
Cecco di Filippo Fara S. Martino S.p.A. v. United States,
216 F.3d 1027, 1032 (Fed. Cir. 2000). However, when
Commerce “relies on secondary information rather than
on information obtained in the course of an investigation
or review,” it “shall, to the extent practicable, corroborate
that information from independent sources that are
reasonably at [its] disposal.” 19 U.S.C. § 1677e(c). To
corroborate secondary information, Commerce must find
the information has “probative value,” KYD, Inc. v. United
States, 607 F.3d 760, 765 (Fed. Cir. 2010), by demonstrat-
ing the rate is both reliable and relevant, Gallant Ocean,
602 F.3d at 1323–24.
Here, in the Supplemental Questionnaire, Commerce
warned that “failure to properly request extensions for all
or part of a questionnaire response may result in the
application of partial or total facts available, . . . which
may include adverse inferences [(i.e., AFA)].” J.A. 159.
Therefore, Commerce found Dongtai Peak was “fully
aware of the established deadlines in this case, advised of
the importance of meeting deadlines and the possible
consequences should it not meet those deadlines.” Issues
& Dec. Mem. at 15. In contrast to Appellant’s argument,
20 DONGTAI PEAK HONEY INDUSTRY v. US
Commerce did not simply base its “failure to cooperate”
conclusion on the untimely filings; rather, the record
indicates Commerce considered the circumstances of
Dongtai Peak’s untimely submission and found the rea-
sons provided (i.e., computer failure, communication
problems, translation problems, overlapping deadlines,
and a national holiday) did not prevent Dongtai Peak
from timely filing an extension request. Id. at 15–16.
Thus, based on the record, Commerce reasonably conclud-
ed Appellant “placed itself in a position in which it could
not comply with the deadline.” Id. at 16.
As this court has noted, “[c]ompliance 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 inquir-
ies,” and “[w]hile the standard does not require perfection
and recognizes that mistakes sometimes occur, it does not
condone inattentiveness, carelessness, or inadequate
record keeping.” Nippon Steel, 337 F.3d at 1382 (empha-
ses added). Because Dongtai Peak was aware of the
deadline and had the opportunity to file an extension
request prior to its expiration, its failure to do so indicates
an inattentiveness or carelessness with regard to its
obligations. This warranted application of AFA.
As to the AFA rate selected by Commerce for the Chi-
na-wide entity, Commerce properly corroborated the rate
by demonstrating why it was reliable and relevant.
Specifically, the selected rate was reliable because it was
calculated using verified sales and cost data for Anhui
Native from a prior administrative review, and therefore
“reflect[ed] the commercial reality of another respondent
in the same industry” as Dongtai Peak. Issues & Dec.
Mem. at 18; see Gallant Ocean, 602 F.3d at 1324 (To be
reliable, “Commerce must select secondary information
that has some grounding in commercial reality.”). Fur-
thermore, this court has clarified that when Commerce
chooses a calculated dumping margin from a prior seg-
DONGTAI PEAK HONEY INDUSTRY v. US 21
ment of the proceeding as the AFA rate, that rate is
reliable. See KYD, 607 F.3d at 766–77 (Commerce’s
selection of the highest prior margin as the AFA rate
reflects “a common sense inference that the highest prior
margin is the most probative evidence of current margins
because, if it were not so, the [responding party] knowing
of the rule, would have produced current information
showing the margin to be less.”). Commerce further
determined the rate was relevant because it was applied
to the China-wide entity in the sixth and seventh admin-
istrative reviews. See Issues & Dec. Mem. at 18–19.
In addition, Dongtai Peak has not identified any rec-
ord evidence indicating this rate lacked probative value,
including any evidence regarding fluctuations in sales
prices, production and transportation costs, or market
conditions. To the extent Appellant claims Commerce
erred in choosing an AFA rate that was not based on
Dongtai Peak’s own sales and production data for the
current period of review, this argument is meritless.
Because Appellant was part of the China-wide entity,
Commerce was not required to calculate a separate AFA
rate for Dongtai Peak and it was unnecessary for Com-
merce to corroborate the AFA rate for the China-wide
entity using Dongtai Peak’s own data. Substantial evi-
dence supports Commerce’s use of AFA in this case and
its selection of an AFA rate for the China-wide entity.
CONCLUSION
For the foregoing reasons, the decision of the United
States Court of International Trade is
AFFIRMED