American Tubular Products, LLC v. United States , 847 F.3d 1354 ( 2017 )

United States Court of Appeals
for the Federal Circuit
______________________
AMERICAN TUBULAR PRODUCTS, LLC, JIANGSU
CHENGDE STEEL TUBE SHARE CO., LTD.,
Plaintiffs-Appellants
v.
UNITED STATES, UNITED STATES STEEL
CORPORATION, TMK IPSCO, WHEATLAND TUBE
COMPANY, V & M STAR L.P.,
Defendants-Appellees
______________________
2016-1127
______________________
Appeal from the United States Court of International
Trade in No. 1:13-cv-00029-RWG, Senior Judge Richard
W. Goldberg.
______________________
Decided: February 13, 2017
______________________
DONALD CAMERON, JR., Morris, Manning & Martin,
LLP, Washington, DC, for plaintiffs-appellants. Also
represented by MARY HODGINS, JULIE MENDOZA, BRADY
MILLS, R. WILL PLANERT, SARAH SUZANNE SPRINKLE.
LOREN MISHA PREHEIM, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for defendant-appellee
United States. Also represented by BENJAMIN C. MIZER,
2 AMERICAN TUBULAR PRODUCTS, LLC v. UNITED STATES
JEANNE E. DAVIDSON, CLAUDIA BURKE; WHITNEY MARIE
ROLIG, Office of the Chief Counsel for Trade Enforcement
and Compliance, United States Department of Commerce,
Washington, DC.
PHILIP CHARLES STERNHELL, Quinn Emanuel Ur-
quhart & Sullivan, LLP, Washington, DC, argued for
defendant-appellee United States Steel Corporation. Also
represented by DEBBIE LEILANI SHON, JONATHAN GORDON
COOPER, JON DAVID COREY, KELSEY RULE.
ROGER BRIAN SCHAGRIN, Schagrin Associates, Wash-
ington, DC, for defendants-appellees TMK IPSCO, Wheat-
land Tube Company, V & M Star L.P. Also represented
by JOHN W. BOHN, JORDAN CHARLES KAHN.
______________________
Before NEWMAN, MAYER, and LOURIE, Circuit Judges.
LOURIE, Circuit Judge.
American Tubular Products, LLC (“ATP”) and Jiang-
su Chengde Steel Tube Share Co., Ltd. (“Chengde”) (col-
lectively, “the Appellants”) appeal from the decisions of
the United States Court of International Trade (“the
Trade Court”) affirming the Department of Commerce’s
(“Commerce”) antidumping duty calculations in the first
administrative review of an antidumping duty order
directed to certain oil country tubular goods (“OCTG”)
from the People’s Republic of China. See Am. Tubular
Prods., LLC v. United States, No. 13-00029, 2015 WL
5236010 (Ct. Int’l Trade Aug. 28, 2015) (“ATP II”) (affirm-
ing Commerce’s remand results); Am. Tubular Prods.,
LLC v. United States, No. 13-00029, 2014 WL 4977626
(Ct. Int’l Trade Sept. 26, 2014) (“ATP I”) (affirming in part
and remanding in part Commerce’s final results). In that
administrative review, Commerce ultimately calculated a
weighted average dumping margin of 137.62% for Cheng-
de. See Am. Tubular Prods., LLC v. United States, No.
AMERICAN TUBULAR PRODUCTS, LLC v. UNITED STATES 3
13-00029, ECF No. 102 (Ct. Int’l Trade Jan. 28, 2015)
(“Remand Results”). Because we agree with the Trade
Court that Commerce’s antidumping duty calculations
were supported by substantial evidence and otherwise in
accordance with law, we affirm.
BACKGROUND
OCTG are steel tubing products used in oil and gas
drilling. Chengde is a Chinese producer and exporter of
OCTG, and ATP is the importer of record during the
relevant period. In June 2011, Commerce initiated the
first administrative review of the antidumping duty order
directed to OCTG from China. Initiation of Antidumping
and Countervailing Duty Administrative Reviews, 76 Fed.
Reg. 37,781 (Dep’t of Commerce June 28, 2011); Initiation
of Antidumping and Countervailing Duty Administrative
Reviews, 76 Fed. Reg. 53,404 (Dep’t of Commerce Aug. 26,
2011) (correcting the period of review). Commerce select-
ed Chengde as a mandatory respondent.
Because China is considered a nonmarket economy
(“NME”) country, Commerce selected Indonesia, a market
economy (“ME”) country, as the primary surrogate coun-
try from which it would use surrogate values to ascertain
Chengde’s factors of production. Certain Oil Country
Tubular Goods from the People’s Republic of China, 77
Fed. Reg. 34,013 (Dep’t of Commerce June 8, 2012) (“Pre-
liminary Results”). In the Final Results, as later amend-
ed, Commerce assigned Chengde a dumping margin of
162.69%. Certain Oil Country Tubular Goods from the
People’s Republic of China, 77 Fed. Reg. 74,644 (Dep’t of
Commerce Dec. 17, 2012) (“Final Results”), as amended by
Certain Oil Country Tubular Goods from the People’s
Republic of China, 78 Fed. Reg. 9,033 (Dep’t of Commerce
Feb. 7, 2013). The Appellants appealed to the Trade
Court, raising three issues that are relevant in this ap-
peal. We provide further factual and procedural back-
ground for each of those issues in turn.
4 AMERICAN TUBULAR PRODUCTS, LLC v. UNITED STATES
A. Steel Billets
The first issue pertains to Commerce’s valuation of
steel billets used in the production of OCTG. Steel billets
may be composed of carbon steel or the more expensive
alloy steel. In its initial questionnaire, Commerce re-
quested Chengde to “[d]escribe each type and grade of
material used in the production process.” J.A. 168.
Chengde responded that it consumed steel billets, and its
counsel listed a Harmonized Tariff Schedule (“HTS”)
subheading that covers products of alloy steel as the
proper tariff subheading for its steel billets. J.A. 669.
Commerce then issued supplemental questionnaires,
requesting sample mill test certificates for various control
numbers (“CONNUMs”). A CONNUM is a code used to
identify distinct products within the class of subject
merchandise under review. Chengde submitted the
sample mill certificates. J.A. 1720–25, 3161–71. Those
certificates contained information on the chemical compo-
sition of the sampled OCTG, which constituted a portion,
but not all, of OCTG sold in sixteen of nineteen sales
made by Chengde during the period of review. In addi-
tion, Commerce requested clarification of the technical
descriptions of Chengde’s raw material inputs. J.A. 886.
Chengde again responded with a general description of its
steel billet input. J.A. 950–51.
In the Preliminary Results, Commerce valued steel
billets using a surrogate value for alloy steel. Chengde
then argued that Commerce should have used a surrogate
value for carbon steel. Chengde explained that its coun-
sel’s prior reference to the HTS number for alloy steel was
an inadvertent error, and that it in fact used carbon steel
billets. Chengde called Commerce’s attention to the mill
certificates on the record, which showed that the tested
OCTG were all made of carbon steel.
In the Final Results, as amended, Commerce used a
carbon-steel surrogate value, but only for the portion of
AMERICAN TUBULAR PRODUCTS, LLC v. UNITED STATES 5
OCTG directly shown to be made of carbon steel by the
mill certificates. For the remaining OCTG, Commerce
continued to value the steel billet input using an alloy-
steel surrogate value.
On appeal, the Trade Court remanded Commerce’s se-
lection of surrogate values for steel billets. For the six-
teen sales partially supported by the mill certificates, the
court directed Commerce to “explain whether Chengde’s
mill certificates prove the chemical properties of OCTG
not specifically tested.” ATP I, 2014 WL 4977626, at *7.
Moreover, the court found that Commerce had failed to
consider a Customs entry summary relating to an addi-
tional (seventeenth) transaction, * which classified the
OCTG as carbon steel. The court directed Commerce to
assess whether the entry summary proved that the OCTG
sold in that transaction were carbon steel. Id.
On remand, Commerce explained that it was unable
to conclude that the OCTG not specifically tested were
necessarily carbon steel, noting the uncertainties in
Chengde’s sampling process and its failure to provide the
requested technical descriptions of its steel billet input.
Commerce found, however, that the Customs entry sum-
mary established that the entered OCTG were composed
of carbon steel. Commerce thus continued to use a car-
bon-steel surrogate value to value the portion of steel
billets for which there was direct evidence, viz., the mill
certificates or entry summary, to show that carbon steel
billets were consumed. As for the remaining portion of
* As to the remaining two of the nineteen sales cov-
ered by the review, the Trade Court affirmed Commerce’s
use of an alloy-steel surrogate value based on evidence of
a screenshot of Chengde’s website, which showed that the
OCTG sold in those two transactions were composed of
alloy steel. The Appellants do not challenge that aspect of
the Trade Court’s decision.
6 AMERICAN TUBULAR PRODUCTS, LLC v. UNITED STATES
steel billets at issue, Commerce used a simple average of
the surrogate values for carbon steel billets and alloy steel
billets. Accordingly, Commerce recalculated Chengde’s
weighted average dumping margin as 137.62%.
The Appellants again appealed to the Trade Court.
The court sustained Commerce’s Remand Results, finding
that Commerce reasonably chose to use a simple average
of the surrogate values of carbon and alloy steel billets for
the untested OCTG. ATP II, 2015 WL 5236010, at *6–9.
The court agreed with Commerce that OCTG under the
same contract or CONNUM could have different chemical
compositions, id. at *7, and that Chengde’s mill certifi-
cates lacked sufficient detail to establish that the untest-
ed OCTG were made of carbon steel, id. at *8. The court
further noted that Chengde could have shown that its
billets were carbon steel by answering Commerce’s ques-
tionnaires “with exactness,” but it failed to do so. Id.
B. Byproduct Offset
The second issue pertains to byproduct offset. The
production of OCTG may generate steel scrap, which may
be sold for revenue to offset the raw material cost for
producing the OCTG that generated the scrap. In its
initial questionnaire, Commerce requested information on
the quantity of byproduct “produced, sold, reintroduced
into production, or otherwise disposed of,” as well as
records demonstrating the production of byproduct during
one month of the period of review. J.A. 169. In response,
Chengde explained that it did not measure or record steel
scrap production at the time it was produced, but rather
measured the scrap quantity when it was sold. J.A. 651–
52. Chengde provided the quantities of monthly scrap
sales for the period of review. J.A. 685–86. Commerce
did not request further information regarding scrap offset.
In the Preliminary Results and the Final Results,
Commerce declined to allow any scrap offset because
Chengde had failed to quantify the amount of scrap
AMERICAN TUBULAR PRODUCTS, LLC v. UNITED STATES 7
produced. On appeal, the Trade Court sustained Com-
merce’s denial of scrap offset as supported by substantial
evidence and in accordance with law, finding that Cheng-
de had failed to meet Commerce’s requirements to secure
a scrap offset. ATP I, 2014 WL 4977626, at *9–12.
C. International Freight
The third issue pertains to Commerce’s valuation of
Chengde’s international freight expense. Chengde report-
ed that most of its OCTG exports to the United States
were shipped by carriers based in South Korea, an ME
country, and that it paid for ocean freight in U.S. dollars.
Chengde showed that it remitted the freight expense via a
Chinese freight forwarder, which in turn paid the Chinese
agents of the Korean carriers, and those agents then paid
the carriers in U.S. dollars. However, Chengde did not
provide any evidence on the amount paid by the Chinese
agents to the Korean carriers. It instead submitted
certifications from two Chinese agents stating that pay-
ments were made in U.S. dollars, and that actual pay-
ment documentation was proprietary.
In the Preliminary Results, Commerce calculated in-
ternational freight using a surrogate value, as if it was
purchased from an NME supplier. Commerce continued
to do so in the Final Results, finding that Chengde had
failed to establish that the Korean carriers set the freight
price. On appeal, the Trade Court sustained Commerce’s
use of a surrogate value to calculate international freight.
The court observed that “there is no proof that the Korean
shippers hired the Chinese agents to collect Chengde’s
fees,” and thus “there is little reason to believe that the
price paid to the agents equaled the price remitted to the
shippers.” ATP I, 2014 WL 4977626, at *13.
After the Trade Court affirmed Commerce’s Remand
Results, the Appellants appealed to this court. We have
jurisdiction under 28 U.S.C. § 1295(a)(5).
8 AMERICAN TUBULAR PRODUCTS, LLC v. UNITED STATES
DISCUSSION
In trade cases, we apply the same standard of review
as the Trade Court, upholding Commerce’s determina-
tions unless they are “unsupported by substantial evi-
dence on the record, or otherwise not in accordance with
law.” 19 U.S.C. § 1516a(b)(1)(B)(i). Although we review
the decisions of the Trade Court de novo, “we give great
weight to the informed opinion of the [Trade Court] . . . ,
and it is nearly always the starting 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 omitted).
The Appellants challenge three aspects of Commerce’s
antidumping duty calculations: (1) Commerce’s decision to
use a simple average of surrogate values for carbon steel
billets and alloy steel billets for the untested OCTG;
(2) its denial of scrap byproduct offset; and (3) its treat-
ment of international freight as NME transactions. We
address each of those issues in turn.
A. Steel Billets
We first consider whether Commerce erred in using a
simple average of surrogate values for carbon steel billets
and alloy steel billets for the untested OCTG.
The Appellants argue that the sample mill certificates
demonstrate that the untested OCTG were composed of
carbon steel, not alloy steel. They emphasize that the
untested OCTG were sold in the same transactions under
the same CONNUMs as the tested OCTG. They criticize
Commerce for not finding the mill certificates representa-
tive of the untested OCTG because Commerce requested
only sample mill certificates. According to the Appellants,
for the seventeen transactions at issue, there is no evi-
dence that Chengde consumed alloy steel billets. They
assert that Commerce improperly relied on the erroneous
HTS number provided by Chengde’s former counsel.
AMERICAN TUBULAR PRODUCTS, LLC v. UNITED STATES 9
The United States, United States Steel Corporation,
TMK IPSCO, Wheatland Tube Co., and V & M Star L.P.
(collectively, “the Appellees”), filing three separate briefs,
respond that Commerce’s selection of surrogate value for
steel billet input was supported by substantial evidence.
The Appellees contend that the record is inconclusive as
to the chemical content of the untested OCTG, and that
Chengde failed to prove that all of its steel billets were
made of carbon steel. The Appellees note that Chengde
used both carbon steel billets, as shown by the mill certifi-
cates and entry summary, and alloy steel billets, as shown
by Chengde’s website, to produce OCTG. They argue that
Commerce therefore reasonably valued the steel billets by
averaging the surrogate values.
We agree with the Trade Court and the Appellees that
substantial evidence supports Commerce’s decision to use
an average surrogate value of carbon steel and alloy steel.
Commerce reasonably concluded that the record did not
demonstrate whether the untested OCTG were produced
exclusively from carbon steel or alloy steel billets. Rather,
it is undisputed that Chengde’s website showed that it
sold OCTG made of alloy steel under two contracts during
the period of review, whereas the sample mill certificates
and entry summary showed that Chengde used carbon
steel billets for some of its OCTG. Faced with this record,
Commerce reasonably used a simple average of the surro-
gate values for alloy and carbon steel for the portion of the
billets for which the type of steel was not apparent.
Substantial evidence thus supports Commerce’s decision.
As Commerce correctly found, the sample mill certifi-
cates submitted by Chengde were limited. They did not
indicate whether they represented the entire quantity of a
sales contract, and did not provide context for their rele-
vance to the untested products by describing the testing
procedures. The certificates represented limited quanti-
ties of the sales contracts or CONNUMs involved. More-
over, as Commerce found, the OCTG under each contract
10 AMERICAN TUBULAR PRODUCTS, LLC v. UNITED STATES
could be produced in multiple heats, i.e., production runs
or batches, and that the mill certificates did not list all of
the required test results for each heat. Thus, we agree
with Commerce and the Trade Court that the mill certifi-
cates were not representative of the untested OCTG.
As the Trade Court noted, Commerce repeatedly re-
quested technical descriptions of Chengde’s raw material
input, but Chengde failed to provide a straightforward
and sufficient description of the chemical composition of
its steel billets. Chengde’s other submissions, including
the sample mill certificates, were insufficient to establish
the nature of its steel billet input as to the untested
OCTG. Given this record, Commerce reasonably valued
the untested steel billets by averaging the surrogate
values of both carbon and alloy steel. See Nan Ya Plastics
Corp. v. United States, 810 F.3d 1333, 1337–38 (Fed. Cir.
2016) (explaining that “the burden of creating an ade-
quate record lies with interested parties and not with
Commerce” (internal quotation marks and citation omit-
ted)).
We therefore conclude that Commerce’s use of a sim-
ple average of surrogate values of carbon and alloy steel
billets for the untested OCTG is supported by substantial
evidence and otherwise in accordance with law.
B. Byproduct Offset
We next consider whether Commerce erred in declin-
ing to make any scrap byproduct offset because Chengde
failed to provide any records to establish the quantity of
scrap produced, rather than the quantity of scrap sold.
The Appellants raise numerous arguments challeng-
ing Commerce’s denial of scrap offset. First, they argue
that Commerce acted arbitrarily in this case because, in
previous cases, it has allowed byproduct offsets based on
information similar to that provided by Chengde. Second,
they argue that 19 U.S.C. § 1677b(f)(1)(A) requires that
AMERICAN TUBULAR PRODUCTS, LLC v. UNITED STATES 11
Commerce base its cost calculations on the books and
records of the producer unless it determines that the
information does not “reasonably reflect” actual costs, and
that Commerce failed to make such a finding here. Third,
they argue that under 19 U.S.C. § 1677m(d), when Com-
merce finds that information submitted by a respondent is
deficient, it must notify the party of the deficiency and
provide an opportunity for correction, and that Commerce
failed to do so here. Fourth, they argue that the scrap
sales data submitted by Chengde satisfy all of the statu-
tory requirements of 19 U.S.C. § 1677m(e), and thus that
Commerce may not decline to consider the information
even if it did not comply with all of Commerce’s require-
ments. Finally, they argue that Commerce’s refusal to
make any byproduct offset constituted a de facto applica-
tion of adverse facts available, without any finding that
Chengde had failed to cooperate to the best of its ability.
The Appellees respond that Commerce reasonably de-
nied Chengde’s request for scrap offset because Chengde
failed to show that the scrap sold was generated from the
production of OCTG, not some other products, and that
the scrap was in fact produced during the period of re-
view. The Appellees maintain that Commerce’s denial of
scrap offset in this case is consistent with its standard
practice. The Appellees contend that the statute is silent
on scrap offset, and Commerce has filled that gap with
regulations. The Appellees also respond that Chengde
informed Commerce that it did not account for the quanti-
ties of scrap as produced, and thus Commerce was not
required to continue asking for that information or to
accept Chengde’s deficient evidence. Finally, the Appel-
lees respond that Commerce did not apply any adverse
inference; rather, according to the Appellees, Commerce
simply concluded that Chengde did not meet its burden of
establishing the requested scrap offset.
We agree with the Trade Court and the Appellees that
Commerce did not err in declining to allow any scrap
12 AMERICAN TUBULAR PRODUCTS, LLC v. UNITED STATES
offset in this case. Chengde did not establish the quantity
of scrap generated from the production of OCTG during
the period of review. It simply failed to satisfy its eviden-
tiary burden, and Commerce properly decided not to grant
the requested offset.
The statute governing the calculation of normal value,
19 U.S.C. § 1677b(c), does not discuss the treatment of
byproducts. Commerce promulgated regulations stating
that it may make adjustments to normal value, but that
“[t]he interested party that is in possession of the relevant
information has the burden of establishing to the satisfac-
tion of the Secretary the amount and nature of a particu-
lar adjustment.” 19 C.F.R. § 351.401(b). Accordingly,
Chengde bears the burden of establishing its entitlement
to a scrap offset.
Here, Chengde submitted documentation of its scrap
sales to Commerce, but it could not document the quanti-
ty of scrap produced during the period of review. Cheng-
de’s proposed offset calculation instead equated total
scrap sold during the period of review with total scrap
produced during the period of review. However, as Com-
merce explained, Chengde failed to present any evidence
to show either that the production of OCTG, the subject
merchandise, actually generated the scrap sold, or that
the scrap sold was indeed produced during the period of
review. Absent evidence linking the scrap sold with any
scrap generated resulting from the production of OCTG
during the period of review, Commerce properly found
that Chengde’s submissions were insufficient and proper-
ly denied the requested offset.
We find the Appellants’ remaining arguments to be
unavailing. First, this case is factually distinct from the
cases cited by the Appellants. In those cases, Commerce
had additional information linking the requested byprod-
uct offset to the production of subject merchandise during
the period of review. Chengde failed to make that show-
AMERICAN TUBULAR PRODUCTS, LLC v. UNITED STATES 13
ing in this case. Second, the statutory provisions cited by
the Appellants are inapposite. In this review, Commerce
requested Chengde to provide records demonstrating the
production of OCTG during the period of review. Chengde
unambiguously responded that it did not measure or
record steel scrap production at the time it was produced.
On this record, Commerce was not obligated to accommo-
date Chengde’s failure to document scrap production; nor
was Commerce obligated to continue asking for infor-
mation that Chengde clearly stated it did not record.
Lastly, we agree with the Appellees that Commerce did
not apply any adverse inference in its denial of scrap
offset. Rather, Chengde simply failed to satisfy its evi-
dentiary burden of establishing the requested offset, as
the regulation requires. See 19 C.F.R. § 351.401(b).
Accordingly, we conclude that Commerce’s denial of
steel scrap offset is supported by substantial evidence and
otherwise in accordance with law.
C. International Freight
We last consider whether Commerce erred in finding
that Chengde’s international freight transactions consti-
tuted NME transactions. The Appellants argue that the
record evidence shows that Chengde’s ocean freight was
in fact furnished by ME carriers and that Chengde paid
for the freight in U.S. dollars. They argue that Commerce
acted unreasonably in finding that Chengde purchased
ocean freight from an NME supplier.
The Appellees respond that Chengde failed to satisfy
Commerce’s requirements to prove that its ocean freight
constituted ME purchases. Specifically, the Appellees
argue that Chengde failed to provide any documentation
to establish the amount paid by the Chinese agents to the
Korean shippers, or to otherwise show that the price it
paid for ocean freight was set by ME shippers. The Ap-
pellees also argue that Commerce has consistently re-
quired respondents such as Chengde to link the amount
14 AMERICAN TUBULAR PRODUCTS, LLC v. UNITED STATES
paid to an NME intermediary or agent with that paid to
an ME carrier.
We agree with the Trade Court and the Appellees that
Commerce properly calculated Chengde’s ocean freight
expenses using a surrogate value. The statute presumes
that government action distorts the prices that NME
exporters pay for their inputs. See 19 U.S.C. §§ 1677(18),
1677b(c)(1). In limited circumstances, however, pursuant
to the regulation in effect at the relevant time, Commerce
would “normally” value an input purchased from an ME
supplier and paid for in an ME currency using “the price
paid to the [ME] supplier.” 19 C.F.R. § 351.408(c)(1)
(2012). Accordingly, “under the regulation, merely estab-
lishing that the factor was purchased from [an ME]
supplier is not enough; rather, the amount paid to the
supplier must be documented.” Yantai Oriental Juice Co.
v. United States, 26 Ct. Int’l Trade 605, 615 (2002).
Here, Chengde failed to properly establish the price
paid to the ME shippers or to otherwise show that the
price it paid for ocean freight was set by the ME shippers.
The record shows that Chengde paid its ocean freight
expenses to a freight forwarder in China, who then paid
the Chinese agents of Korean carriers, who in turn paid
the Korean carriers. Because the first two transactions
were between Chinese entities, Chengde is required to
link the price it paid to the freight forwarder to the price
paid to the Korean shippers. However, Chengde failed to
make that showing. It only provided declarations that the
Chinese agents paid the Korean shippers in U.S. dollars.
Accordingly, the only prices on the record relating to
ocean freight are those between Chinese entities, not the
prices paid to the Korean carriers. On this record, Com-
merce properly declined to value Chengde’s international
freight as an ME input and properly used a surrogate
value to calculate international freight costs. See Nan Ya,
810 F.3d at 1337–38. We therefore conclude that Com-
AMERICAN TUBULAR PRODUCTS, LLC v. UNITED STATES 15
merce’s decision is supported by substantial evidence and
otherwise in accordance with law.
CONCLUSION
We have considered the Appellants’ remaining argu-
ments, but find them to be unpersuasive. For the forego-
ing reasons, we conclude that Commerce’s antidumping
duty calculations were supported by substantial evidence
and otherwise in according with law. We therefore affirm
the Trade Court’s decisions sustaining Commerce’s anti-
dumping duty calculations.
AFFIRMED