Xiping Opeck Food Co. v. United States ( 2019 )

Court No. 17-00260 Page 1
Slip Op. 19–
UNITED STATES COURT OF INTERNATIONAL TRADE
__________________________________________
:
XIPING OPECK FOOD CO., LTD., :
:
Plaintiff, :
: Before: Richard K. Eaton, Judge
v. :
: Court No. 17-00260
UNITED STATES, :
:
Defendant. :
:
__________________________________________:
OPINION
[U.S. Department of Commerce’s final results are sustained.]
Dated: "QSJM



Yingchao Xiao, Lee & Xiao, of San Marino, California, argued for Plaintiff.
Mollie L. Finnan, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, argued for Defendant. With her on the brief were Chad
A. Readler, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M.
McCarthy, Assistant Director. Of Counsel on the brief was Brendan Saslow, Attorney, Office of
the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce.
Eaton, Judge: Plaintiff Xiping Opeck Food Co., Ltd. (“Plaintiff” or “Xiping”) moves for
judgment on the agency record, pursuant to 19 U.S.C. § 1516a (2012), challenging the United
States Department of Commerce’s (“Commerce” or the “Department”) final results of its
administrative review of the antidumping duty order covering freshwater crawfish tail meat from
China. See Freshwater Crawfish Tail Meat From the People’s Rep. of China, 82 Fed. Reg. 47,469
(Dep’t Commerce Oct. 12, 2017) (“Final Results”), and accompanying Issues and Dec. Mem. (Oct.
5, 2017), P.R. 142 (“Final IDM”). The period of review (“POR”) was September 1, 2015 through
August 31, 2016.
Court No. 17-00260 Page 2
Xiping, an exporter of crawfish tail meat from China, 1 objects to Commerce’s rejection of
untimely filed surrogate country financial statements from Thailand. Plaintiff also contends that
the South African financial statements, on which Commerce relied, were “insufficiently
disaggregated,” and, therefore, could not serve as a proper basis for a normal value calculation.
See Pl.’s Br. Supp. Mot. J. Agency R., ECF No. 24 (“Pl.’s Br.”) 1; Pl.’s Reply Br., ECF No. 28.
The court has jurisdiction pursuant to 19 U.S.C. § 1516a(a)(2)(B)(iii) and 28 U.S.C.
§ 1581(c) (2012). Because Commerce did not abuse its discretion by rejecting the untimely filed
financial statements, and Plaintiff failed to exhaust its administrative remedies when disputing the
use of the South African financial statements. Commerce’s Final Results are sustained.
BACKGROUND
In September 1997, Commerce issued its antidumping duty order on freshwater crawfish
tail meat from China. See Freshwater Crawfish Tail Meat From the People’s Rep. of China, 62
Fed. Reg. 41,347 (Dep’t Commerce Aug. 1, 1997), amended by Freshwater Crawfish Tail Meat
From the People’s Rep. of China, 62 Fed. Reg. 48,218 (Dep’t Commerce Sept. 15, 1997). On
September 8, 2016, the Department published a notice of opportunity to request an administrative
review of the order for the POR. See Opportunity To Request Admin. Rev., 81 Fed. Reg. 62,096
(Dep’t Commerce Sept. 8, 2016).
Petitioner, Crawfish Processors Alliance (the “Alliance”), responded to the notice and
asked Commerce to review, among others, Hubei Nature Agriculture Co., Ltd. (“Hubei”),
1
At the preliminary results stage of the 2015-2016 review, Commerce determined
that Xiping, a non-mandatory respondent, had successfully established its eligibility for a separate
rate. See Freshwater Crawfish Tail Meat From the People’s Rep. of China, 82 Fed. Reg. 26,435,
26,436 (Dep’t Commerce June 7, 2017). Xiping, however, “was not selected for individual
examination” in the 2015-2016 administrative review. See Final Results, 82 Fed. Reg. at 47,470.
Court No. 17-00260 Page 3
Yancheng Hi-King Agriculture Developing Co., Ltd. (“Yancheng Hi-King”), and Xiping, all
Chinese producers or exporters of crawfish tail meat. See Req. Admin. Rev. (Sept. 30, 2016), P.R.
3 (“Alliance Req.”) at 1-2. Hubei, having sold subject merchandise from China to the United States
during the POR, asked for a review of its dumping margin. See Req. Admin. Rev. (Sept. 29, 2016),
P.R. 2 at 2 (“Hubei Req.”) at 2.
On November 9, 2016, Commerce initiated its review of eleven exporters and producers.
See Initiation of Antidumping and Countervailing Duty Admin. Rev., 81 Fed. Reg. 78,778 (Dep’t
Commerce Nov. 9, 2016); Alliance Req. at 1. The Department subsequently selected Yancheng
Hi-King and Hubei as mandatory respondents for individual examination because they had “the
largest volume of exports of subject merchandise during the POR.” Respondent Selection 2015-
2016 Antidumping Duty Admin. Rev. (Dec. 8, 2016), P.R. 31 (“Resp. Selection Mem.”) at 5.
On November 29, 2016, Commerce provided interested parties the opportunity to comment
on the surrogate country list, the selection of a surrogate country, and the selection of surrogate
values. See Req. Surrogate County & Surrogate Value Comments & Info. (Nov. 29, 2016), P.R.
20 at 1 (“Req. Surr. Country Info.”); Selection Surrogate Countries (Dec. 6, 2016), P.R. 24
(identifying Brazil, Mexico, Romania, Bulgaria, South Africa, and Thailand as potential surrogate
countries with economic development similar to that of China). Hubei and the Alliance submitted
comments concerning the selection of a surrogate country on March 3, 2017. See Surrogate
Country Selection Comments (Mar. 3, 2017), P.R. 90 (“Hubei Comments”); Surrogate Country
Selection Comments (Mar. 3, 2017), P.R. 91 (“Alliance Comments”). Hubei asked the Department
to select “Thailand as the primary surrogate country for the factors of production and Spain for the
import data for the valuation of live crawfish.” Hubei Comments at 2. The Alliance, however,
contested the suitability of Thailand as the primary surrogate, and urged the Department to choose
Court No. 17-00260 Page 4
“South Africa as the primary surrogate for values other than whole crawfish and scrap.” Alliance
Comments at 4.
Although an interested party within the meaning of the statute, Xiping placed no
information on the record and filed no comments. See 19 C.F.R. §§ 351.102(b)(29), 351.301(a)
(2016); Yangzhou Bestpak Gifts & Crafts Co. v. United States, 716 F.3d 1370, 1373 (Fed. Cir.
2013) (“Non-mandatory respondents also have the option of voluntarily completing the
antidumping questionnaire to seek individual investigation.”). On March 17, 2017, Hubei and the
Alliance timely placed surrogate value information on the record, reflecting their respective
positions as to the most appropriate surrogate country. See Surrogate Values (Mar. 17, 2017), P.R.
96 (“Alliance Surr. Values”); Hubei Surrogate Values Submissions (Mar. 17, 2017), P.R. 98
(“Hubei Surr. Values”). The Alliance’s record submissions covered whole crawfish; shell and
scrap; overhead, SG&A, 2 and profit; and electricity, and included financial statements from the
South African seafood processor Oceana Group (the “Oceana Report”). See Alliance Surr. Values
Ex. 1-4. Hubei, in turn, submitted information from Thailand relating to imports 3; labor statistics;
brokerage and handling charges; inland freight charges; and water and electricity tariffs. See Hubei
Surr. Values Ex. 1-5. Hubei did not, however, include any financial statements in its submissions.
2
“SG&A” stands for selling, general and administrative Expenses. See 19 U.S.C.
§ 1677b(b)(3)(B).
3
Hubei also submitted import data from Brazil, Bulgaria, Mexico, Romania, and
South Africa, but urged the Department to rely on Thai data regardless. See Hubei Surr. Values at
2 (“[W]e have also included the [Global Trade Atlas] import data from Brazil, Bulgaria, Mexico,
Romania, and South Africa for the POR, as well as the prior 5 years of data, and the calculation of
proposed surrogate values for the inputs set forth above. To the extent that no import [data] is
available from Thailand . . . , the Department should rely upon import data from Thailand from an
earlier period or imports from another potential surrogate country.”).
Court No. 17-00260 Page 5
On June 7, 2017, Commerce published the preliminary results of its administrative review,
with accompanying preliminary decision memorandum. See Freshwater Crawfish Tail Meat From
the People’s Rep. of China, 82 Fed. Reg. 26,435, 26,438 (Dep’t Commerce June 7, 2017)
(“Preliminary Results”); see also Prelim. Dec. Mem. (June 1, 2017), P.R. 123. In the Preliminary
Results, Commerce selected Thailand as the primary surrogate country, but relied on financial
statements from the South African seafood processing company Oceana Group (the “Oceana
Report”) to calculate surrogate financial ratios. Prelim. Dec. Mem. at 6. Additionally, Commerce
used Spanish data to value whole crawfish input. Prelim. Dec. Mem. at 7.
In the Preliminary Results, Commerce calculated a rate for Hubei of 5.10 percent. See
Preliminary Results, 82 Fed. Reg. at 26,437. On July 14, 2017, Hubei filed a case brief asking
Commerce to either reopen the administrative record to permit the submission of Thai financial
statements for consideration in the Final Results, or that Commerce place such information on the
record on its own initiative. See Hubei Admin. Case Br. (July 14, 2017), P.R. 139 (“Hubei Br.”)
at 8; see also Compl., ECF No. 11, ¶ 10. In response, the Alliance filed a rebuttal brief. See Alliance
Rebuttal Br. (July 19, 2017), P.R. 140 at ii (“The Department should reject Hubei Nature’s request
to reopen the record to permit the inclusion of additional Thai financial statements for the
calculation of surrogate financial ratios. Hubei Nature had a full and fair opportunity to submit
such information prior to the applicable deadline but did not do so.”).
In the Final Results, issued on October 12, 2017, and in the accompanying Final IDM,
Commerce “recalculated a dumping margin of 3.81 percent to Hubei Nature, and assigned the
same to Plaintiff,” as a result of revising its “calculation of the surrogate value for non-refrigerated
inland freight expenses.” Compl. ¶ 11; Final Results, 82 Fed. Reg. at 47,470. Commerce refused,
however, to accept Hubei’s Thai financial statements, and declined to place further information on
Court No. 17-00260 Page 6
the record itself, citing the untimeliness of the potential submissions. See Final IDM at p. 12 of
13 4 (“In accordance with the statute, the Department’s regulations and . . . practice, the Department
provided interested parties sufficient time to place surrogate financial information on the record
so that interested parties would have a full and fair opportunity to evaluate them and to submit
comments and other data in rebuttal.”). Therefore, Commerce’s Final Results used Thailand as the
primary surrogate country, and relied on the South African Oceana Report to calculate surrogate
financial ratios. 5 See Final IDM at p. 12 of 13; Surrogate Value Mem. (June 1, 2017), P.R. 125 at
3, 5.
On October 31, 2017, Plaintiff filed a Rule 56.2 motion for judgment on the agency record
in this Court, challenging Commerce’s rejection of Hubei’s request to reopen the record. See Pl.’s
Br. 1. It is worth noting that Plaintiff makes this claim even though no party timely requested an
extension of the original deadlines. 6 In its complaint, Plaintiff alleged that “[t]he Department’s
dumping margin calculation using Oceana Group’s financial statement is arbitrary and capricious,
and is an abuse of discretion under 19 C.F.R. § 351.302(b).” Compl. ¶ 13. Defendant responded
to Plaintiff’s motion, maintaining that Commerce’s Final Results should be sustained, and
Plaintiff’s motion for judgment on the agency record should be denied. See Def.’s Resp. Pl.’s Mot.
J. Agency R., ECF No. 25 (“Def.’s Br.”).
4
Because Commerce did not number the pages of the Final IDM, the actual page-
count is indicated for ease of reading.
5
Commerce also continued to rely on the Spanish data for whole crawfish, but the
parties do not take issue with this. Final IDM at p. 3 of 13; Surrogate Value Mem. at 3.
6
19 C.F.R. § 351.302(b) gives Commerce discretion to extend time limits “for good
cause.”
Court No. 17-00260 Page 7
STANDARD OF REVIEW
Commerce’s antidumping duty determinations, findings, or conclusions must be supported
by substantial evidence and otherwise in accordance with law. See 19 U.S.C.
§ 1516a(b)(1)(B); Fujitsu Gen. Ltd. v. United States, 88 F.3d 1034, 1038 (Fed. Cir. 1996).
Commerce’s decision whether to reject an untimely filed submission is reviewed for abuse
of discretion. See Grobest & I–Mei Indus. (Vietnam) Co. v. United States, 36 CIT 98, 123, 815 F.
Supp. 2d 1342, 1365 (2012) (“[T]he court will review on a case-by-case basis whether the interests
of accuracy and fairness outweigh the burden placed on the Department and the interest in
finality.”); see also Timken U.S. Corp. v. United States, 434 F.3d 1345, 1353 (Fed. Cir. 2006)
(discussing application of abuse of discretion standard in NTN Bearing Corp. v. United States, 74
F.3d 1204, 1208 (Fed. Cir. 1995)).
LEGAL FRAMEWORK
Commerce is charged with determining if goods are being sold, or are likely to be sold, in
the United States at less than fair value. This determination is based on a comparison of normal
value and export price. 19 U.S.C. § 1673. The dumping margin for the subject merchandise is
reached by finding the amount by which normal value (home market price) exceeds export price
(U.S. price). 19 U.S.C. § 1677(35)(A). This margin is then used to determine an antidumping duty
rate.
When the merchandise in question is exported from a nonmarket economy country, 7 such
as China, Commerce calculates the normal value of the subject merchandise based on the values
7
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.
Court No. 17-00260 Page 8
of the factors of production, adding an “amount for general expenses and profit plus the cost of
containers, coverings, and other expenses.” 19 U.S.C. § 1677b(c)(1)(B). Additionally, Commerce
uses “financial ratios derived from financial statements of producers of comparable merchandise
in [a] surrogate country” to calculate the value of additional expenses and profit. Ad Hoc Shrimp
Trade Action Comm. v. United States, 618 F.3d 1316, 1319-20 (Fed. Cir. 2010) (citing Dorbest
Ltd. v. United States, 604 F.3d 1363, 1368 (Fed. Cir. 2010)).
The statute directs Commerce to use the “best available information” to calculate normal
value. 19 U.S.C. § 1677b(c)(1)(B). While the term “best available information” is not defined by
the statute, “Commerce’s discretion . . . is limited by the statute’s objective of ‘obtain[ing] the
most accurate dumping margins possible.’” Calgon Carbon Corp. v. United States, 40 CIT __, __,
145 F. Supp. 3d 1312, 1323 (2016) (quoting Hebei Metals & Minerals Imp. & Exp. Corp. v. United
States, 28 CIT 1185, 1191, Slip Op. 04-88, (July 19, 2004) (not reported in Federal Supplement).
Therefore, “Commerce’s choice of the best available information ‘must evidence a rational and
reasonable relationship to the factor of production it represents’ to be supported by substantial
evidence.” Id. Where, as here, values from a surrogate market economy are used, Commerce, “to
the extent possible . . . [looks to] one or more market economy countries that are [1] at a level of
economic development comparable to that of the nonmarket economy country, and [2] significant
producers of comparable merchandise.” 19 U.S.C. § 1677b(c)(4). By its regulations, Commerce
has expressed a preference to base its factors of production values, including surrogate financial
§ 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, 28 CIT 480, 481, 318
F. Supp. 2d 1339, 1341 (2004). Therefore, because the subject merchandise comes from the PRC,
Commerce constructed normal value by valuing the factors of production using surrogate data
from India. See 19 U.S.C. § 1677b(c)(4).
Court No. 17-00260 Page 9
ratios, on information from one primary surrogate country. 19 C.F.R. § 351.408(c)(2); see Dorbest,
604 F.3d at 1368. Thus, Commerce will normally use secondary surrogate country information if
information “from the primary surrogate country [is] unavailable or unreliable.” Jiaxing Brother
Fastener Co. v. United States, 38 CIT __, __, 11 F. Supp. 3d 1326, 1332-33 (2014), aff’d, 822 F.3d
1289 (Fed. Cir. 2016).
DISCUSSION
I. Commerce Did Not Abuse Its Discretion When It Refused to Permit the Untimely
Submission of the Thai Financial Statements.
Prior to issuing the Preliminary Results on June 7, 2017, Commerce collected surrogate
value information for valuing factors of production and calculating normal value. Commerce set a
deadline of March 17, 2017 for the submission of information relating to factors of production.
See Req. Surr. Country Info. at 2. The regulatory deadline for surrogate value information used in
calculating normal value was “no later than 30 days before the scheduled date of the preliminary
results,” in accordance with 19 C.F.R. § 351.301. Req. Surr. Country Info. at 2; see 19 C.F.R.
§ 351.301(c)(3)(ii). As noted, as a non-mandatory respondent, Plaintiff was not required to place
anything on the record, though it could have so chosen. See Yangzhou, 716 F.3d at 1373 (“Non-
mandatory respondents also have the option of voluntarily completing the antidumping
questionnaire to seek individual investigation.”). Nonetheless, Plaintiff, as an interested party, was
given notice of the opportunity to submit information, and was on record notice of Hubei’s
submissions. See Req. Surr. Country Info.; Selection Surr. Countries; Hubei Comments. Plaintiff
concedes that neither it nor Hubei submitted surrogate financial ratios from Thailand by these
deadlines. Pl.’s Br. 3 (“At the time[,] no financial statements from Thai seafood processing
companies were present on the record.”). The Preliminary Results were published on June 7, 2017.
Court No. 17-00260 Page 10
See Preliminary Results, 82 Fed. Reg. at 26,435. On July 14, 2017, Hubei asked Commerce to
reopen the record. See Hubei Br. 8.
Plaintiff contends that Commerce should have exercised its discretion to allow Hubei to
place the Thai financial statements on the record, or, in the alternative, that Commerce should have
placed Thai data on the record itself. See Pl.’s Br. 9 (“Commerce has discretion to accept factual
information to value factors of production filed anytime.”). In support of this argument, Plaintiff
relies primarily on the Grobest case as persuasive authority. In Grobest, the Court determined that
Commerce abused its discretion when it refused to permit a party to submit additional information
after the deadline for such submissions had passed. Grobest, 36 CIT at 125, 815 F. Supp. 2d at
1367 (“[T]he court holds that in this case, the interests in fairness and accuracy outweigh the
burden upon Commerce; therefore, Commerce’s rejection of [the consolidated plaintiff’s] late-
filed submission was an abuse of discretion.”).
Plaintiff argues that, although Hubei submitted the Thai financial statements after the
submission deadline had passed, the superiority of the Thai data compelled Commerce to accept
it. Pl.’s Br. 7-8, 11-12. Plaintiff’s reliance on Grobest to make its case is misplaced, however,
because there, the untimely information was submitted “more than seven months before
Commerce released the preliminary results and one year before Commerce released the final
result.” Grobest, 36 CIT at 125, 815 F. Supp. 2d at 1367 (citation omitted). The long periods of
time present in Grobest led the Court to conclude that “there [was] no concern with finality.” Id.
In this case, however, Hubei asked to submit the Thai financial statements more than a month after
Commerce released the Preliminary Results. See Hubei Br. 8-9. Further, Xiping’s claim is a little
puzzling since it timely submitted no information for the record, despite being on notice of an
Court No. 17-00260 Page 11
opportunity to do so, and it did not ask for an extension of the deadline. See Req. Surr. Country
Info. at 2; 19 C.F.R. § 351.301(c)(3)(ii) (setting forth the relevant deadlines).
Plaintiff also emphasizes Commerce’s preference for valuing factors of production using
information from one surrogate country as a reason it should succeed. Pl.’s Br. 10 (“Commerce
has a strong preference to value all [factors of production] in a single surrogate country.”). For
Plaintiff, this preference should override Commerce’s concerns of timeliness. While it is true that
Commerce “normally will value all factors in a single surrogate country,” including surrogate
financial ratios, Commerce is not bound by this preference when the information needed is
“unavailable or unreliable.” 19 C.F.R. § 351.408(c)(2); Jiaxing Brother Fastener, 11 F. Supp. 3d
at 1333. Here, the Thai financials were simply not available because they were not on the record,
even though Plaintiff and Hubei knew of their availability at least as early as March 3, 2017. See
Hubei Comments at 3. That is, Hubei noted the existence of the Thai financials in its March 3,
2017 comments, which were placed on the record two weeks prior to the initial deadline of March
17, 2017, and more than three months prior to the Preliminary Results issued on June 7, 2017. See
Hubei Comments at 3 (“[C]ontemporaneous and publically [sic] available financial statements for
producers of comparable merchandise from Thailand are available to value the financial ratios for
use in this proceeding segment.”). These comments demonstrate that, had Hubei wished to place
the Thai financials on the record prior to the deadline, it could have.
As for Xiping’s argument that Commerce should have placed the information on the record
itself, Commerce is not required to correct a party’s omissions. “Commerce has authority to place
documents in the . . . record that it deems relevant, [but] ‘the burden of creating an adequate record
lies with [interested parties] and not with Commerce.’” QVD Food Co. v. United States, 658 F.3d
1318, 1324 (Fed. Cir. 2011) (citation omitted) (quoting Tianjin Mach. Imp. & Exp. Corp. v. United
Court No. 17-00260 Page 12
States, 16 CIT 931, 936, 806 F. Supp. 1008, 1015 (1992)). The Federal Circuit has also noted that
a party who, as here, is responsible for the lack of timely submitted information, puts itself in an
“awkward position” by arguing “that Commerce abused its discretion by not relying on evidence
that [the party] itself failed to introduce into the record.” Id. Here, there were usable financials on
the record, and Hubei’s observation that there were Thai financials “available to value the financial
ratios” does not provide a sufficient reason for Commence to search out the information and place
it on the record.
A party may request deadline extensions for good cause, but must submit such requests
prior to the original deadline unless the party demonstrates extraordinary circumstances. See 19
C.F.R. § 351.302(b)-(c); see also Dongtai Peak Honey Indus. Co. v. United States, 777 F.3d 1343,
1351 (Fed. Cir. 2015) (“Here, Commerce properly exercised its discretion in rejecting Dongtai
Peak’s extension requests and Supplemental 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).”). Commerce notes that
neither Plaintiff nor Hubei asked for an extension or tried to demonstrate good cause for the delay
in filing the Thai financial statements. See Def.’s Br. 11.
As noted, Hubei’s Surrogate Country Comments, submitted on March 3, 2017, indicated
that Thai financial statements were available to it at least two weeks prior to the initial deadline of
March 17, 2017, and more than three months prior to the Preliminary Results. See Hubei
Comments at 3. Nonetheless, neither Hubei nor Xiping made any attempt to place the Thai
financials on the record until more than a month after the Preliminary Determination had been
issued. Thus, here, unlike Grobest, Commerce was well on its way to making the Final
Determination when Hubei tried to change the basis for a portion of Commerce’s findings.
Court No. 17-00260 Page 13
Therefore, here, unlike Grobest, finality is an issue and Commerce did not abuse its discretion by
not accepting Hubei’s late submission.
II. Plaintiff Failed to Exhaust Its Administrative Remedies Regarding Insufficient
Disaggregation in the Oceana Report
Plaintiff’s primary argument against Commerce’s Final Results is based on the alleged
deficiencies of the South African Oceana Report financial statements. Specifically, Plaintiff
argues: “Oceana’s annual report was unsuitable for lacking of sufficient disaggregation. . . . Oceana
Group’s financials are not only missing one of the most important cost categories - raw material
costs - but are also beset by other anomalies that potentially distort the calculation of financial
ratios.” Pl.’s Br. 5 (footnote omitted).
Commerce urges the court to disregard this argument because Xiping failed to exhaust its
administrative remedies. As Commerce points out, “Neither Xiping, nor any other interested party,
ever made this argument to Commerce during the administrative proceeding.” Def.’s Br. 14. A
review of the record, including Hubei’s brief requesting that Commerce accept the Thai financial
statements, reveals no mention of insufficient disaggregation. See Hubei Br. 6-8. Unlike the issue
of whether or not to permit the untimely submission of the Thai data, Commerce has had no
opportunity to address the argument relating to disaggregation. The court “shall, where
appropriate, require the exhaustion of administrative remedies.” 28 U.S.C. § 2637(d). The court
finds that Xiping and Hubei had ample opportunity to raise their concerns before the Department
throughout the administrative proceedings. Therefore, the court does not reach the merits of this
argument.
In addition, it is not clear that the Thai financials would be found to be the best available
information even if they were on the record. In the 2013-2014 review of the underlying 1997
antidumping duty order, this Court approved Commerce’s use of an earlier iteration of the Oceana
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Report instead of similar, Thai financial statements, when both were on the record. See Weishan
Hongda Aquatic Food Co. v. United States, 41 CIT __, __, 273 F. Supp. 3d 1279 (2017), aff’d,
917 F.3d 1353 (Fed. Cir. 2019); see also Weishan Hongda, 917 F.3d at 1367 (“Commerce . . .
found that the Thai Financial Statements suffered from distortions due to export subsidies, and . . .
explained that the Oceana Report was ‘a viable alternative,’ while addressing the challenges made
to the Oceana Report. . . . [Further,] Commerce was able to use its normal methodology to
‘calculate appropriate financial ratios,’ despite the Oceana Report’s failure to ‘provide
disaggregated expenses for raw materials or labor cost.’”). Because the Thai financials in this case
were not timely placed on the record, it is, of course, not possible to determine whether they would
have constituted better information than the Oceana Report. The Weishan Hongda case, however,
indicates that Xiping’s hoped-for finding would not be guaranteed.
Finally, it is worth noting what this case is not. It is not a case where Xiping or Hubei went
back and forth with Commerce as to how to answer questionnaires or with respect to what should
be on the record. Rather, here, both Xiping and Hubei were aware that the Thai financials were
available to put on the record, but neither party sought to do so until it was too late.
CONCLUSION
For the foregoing reasons, the court sustains Commerce’s Final Results. Judgment shall
be entered accordingly.
/s/ Richard K. Eaton
Richard K. Eaton, Judge
Dated: "QSJM



New York, New York