Ad Hoc Shrimp Trade Action Com v. United States

United States Court of Appeals
for the Federal Circuit
______________________
AD HOC SHRIMP TRADE ACTION COMMITTEE,
Plaintiff-Appellee
v.
UNITED STATES,
Defendant-Appellee
HILLTOP INTERNATIONAL, OCEAN DUKE CORP.,
Defendants-Appellants
______________________
2014-1514
______________________
Appeal from the United States Court of International
Trade in No. 1:11-cv-00335-DCP, Senior Judge Donald C.
Pogue.
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AD HOC SHRIMP TRADE ACTION COMMITTEE,
Plaintiff-Appellee
v.
UNITED STATES,
Defendant-Appellee
2 AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES
HILLTOP INTERNATIONAL, OCEAN DUKE CORP.,
Defendants-Appellants
______________________
2014-1647
______________________
Appeal from the United States Court of International
Trade in No. 1:10-cv-00275-DCP, Senior Judge Donald C.
Pogue.
______________________
Decided: October 5, 2015
______________________
NATHANIEL RICKARD, Picard Kentz & Rowe LLP,
Washington, DC, for plaintiff-appellee. Also represented
by ANDREW WILLIAM KENTZ.
JOSHUA E. KURLAND, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for defendant-appellee. Also
represented by BENJAMIN C. MIZER, JEANNE E. DAVIDSON,
PATRICIA M. MCCARTHY; MELISSA M. BREWER, Office of the
Chief Counsel for Trade Enforcement & Compliance,
United States Department of Commerce, Washington,
DC.
MARK PARDO, Grunfeld, Desiderio, Lebowitz, Silver-
man & Klestadt LLP, Washington, DC, argued for de-
fendants-appellants. Also represented by ANDREW
THOMAS SCHUTZ.
ALAN H. PRICE, Wiley Rein, LLP, Washington, DC, for
amicus curiae Nucor Corporation. Also represented by
TIMOTHY C. BRIGHTBILL.
______________________
AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES 3
Before REYNA, CLEVENGER, and WALLACH, Circuit
Judges.
WALLACH, Circuit Judge.
Appellants Hilltop International and Ocean Duke
Corp. (collectively, “Hilltop”) appeal the decisions of the
United States Court of International Trade (“CIT”) affirm-
ing the United States Department of Commerce’s (“Com-
merce”) determination that Hilltop is ineligible for an
antidumping duty rate separate from the country-wide
entity and its selection of the country-wide rate. See Ad
Hoc Shrimp Trade Action Comm. v. United States (Ad Hoc
Shrimp II), 992 F. Supp. 2d 1285 (Ct. Int’l Trade 2014);
Ad Hoc Shrimp Trade Action Comm. v. United States (Ad
Hoc Shrimp I), 925 F. Supp. 2d 1315 (Ct. Int’l Trade
2013). Because Commerce’s determinations were sup-
ported by substantial evidence and were not otherwise
contrary to law, this court affirms.
BACKGROUND
I. Facts and Proceedings
These appeals involve the Fourth and Fifth Adminis-
trative Reviews 1 of the antidumping duty order covering
1 Appeal No. 2014-1647 involves the appeal of
Commerce’s determinations in the Fourth Administrative
Review (CIT Docket No. 10-275), while Appeal No. 2014-
1514 involves the appeal of Commerce’s determinations in
the Fifth Administrative Review (CIT Docket No. 11-335).
The CIT sustained Commerce’s findings regarding
Hilltop’s separate rate status and the calculation of the
country-wide rate for the Fourth Review in Ad Hoc
Shrimp II, 992 F. Supp. 2d 1285. For the Fifth Review,
the CIT sustained Commerce’s findings regarding
Hilltop’s separate rate status in Ad Hoc Shrimp I, 925 F.
4 AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES
certain frozen warmwater shrimp (“subject merchandise”)
from the People’s Republic of China (“China”). See Cer-
tain Frozen Warmwater Shrimp from the People’s Repub-
lic of China, 70 Fed. Reg. 5149 (Dep’t of Commerce Feb. 1,
2005) (notice of amended final determination of sales at
less than fair value and antidumping duty order).
Hilltop, an exporter of subject merchandise from China,
was a mandatory respondent in both the Fourth and Fifth
Reviews. 2 Appellee, the Ad Hoc Shrimp Trade Action
Committee (the “Shrimp Trade Committee”), was a peti-
tioner in the underlying antidumping duty investigation
leading to the issuance of the antidumping duty order.
A. Fourth Administrative Review
On March 26, 2009, Commerce initiated the Fourth
Administrative Review covering entries of subject mer-
chandise made between February 1, 2008 and January
31, 2009. Certain Frozen Warmwater Shrimp from the
Socialist Republic of Vietnam and the People’s Republic of
China, 74 Fed. Reg. 13,178 (Dep’t of Commerce Mar. 26,
2009) (initiation of administrative review). Hilltop was
selected as one of two mandatory respondents in the
review. At the beginning of the review, Hilltop filed a
separate rate certification, representing that neither the
company nor its affiliates were controlled by the Chinese
government, and requested separate rate status, which
Supp. 2d 1315, and sustained the calculation of the coun-
try-wide rate in the Fourth Review in Ad Hoc Shrimp II,
992 F. Supp. 2d 1285. Because Commerce’s determina-
tions in both reviews are substantially the same, and
because the parties raise identical arguments, this court
addresses both appeals in this opinion.
2 The Fourth and Fifth Reviews involved nearly
identical facts except that in the Fourth Review, Com-
merce determined Hilltop had made sales of subject
merchandise allegedly sourced from Cambodia.
AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES 5
means it would receive a company-specific antidumping
duty rate instead of the country-wide rate calculated for
the China-wide entity.
As part of the review, Hilltop responded to a number
of questionnaires 3 from Commerce. In its Section A
response, Hilltop informed Commerce that its sales and
administrative facility is located in Hong Kong and it is
affiliated with several Chinese shrimp producers and
processors, as well as various companies in other third
countries. The company also listed all of the shareholders
and directors for each disclosed third-country affiliate. In
response to Commerce’s request for a list of third parties
in which Hilltop or its owners, either collectively or indi-
vidually, owned five percent or more in stock, Hilltop
stated that “[n]one of the Hilltop Group companies or
their individual owners own 5 percent or more in stock in
any third parties.” J.A.-1647, at 98f. 4 In a supplemental
questionnaire response, Hilltop also stated “[n]one of the
princip[als] of the Chinese companies, Hilltop (HK) or the
Taiwanese companies held any other business licenses
3 During its administrative reviews, Commerce is-
sues detailed nonmarket economy questionnaires to
foreign respondents in the proceedings to gather infor-
mation from which to calculate dumping margins. See 19
C.F.R. §§ 351.221, 351.301(c)(1) (2009). These question-
naires are divided into sections: Section A covers general
corporate information, including corporate and business
structure, affiliations with other companies, and owner-
ship details; Section C covers U.S. sales data; and Section
D covers production data. Commerce may issue supple-
mental questionnaires if additional information is re-
quired.
4 The suffix -1514 denotes the record materials in
Appeal No. 2014-1514, while the suffix -1647 denotes
those in Appeal No. 2014-1647.
6 AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES
during the [period of review] other than the ones provided
in [Hilltop’s Section A questionnaire response].” J.A.-
1647, at 151i. The separate rate certification and ques-
tionnaire responses were certified by Hilltop’s general
manager and part-owner To Kam Keung (“Mr. To”). J.A.-
1647, at 80, 86–87.
On March 12, 2010, Commerce published the Prelimi-
nary Results for the Fourth Administrative Review.
Certain Frozen Warmwater Shrimp from the People’s
Republic of China, 75 Fed. Reg. 11,855 (Dep’t of Com-
merce Mar. 12, 2010) (preliminary results, preliminary
partial rescission of antidumping duty administrative
review, and intent not to revoke, in part). In the Prelimi-
nary Results, Commerce found Hilltop was eligible for
separate rate status. Id. at 11,859. In addition, Com-
merce calculated a de minimis dumping margin based on
Hilltop’s reported sales and production data. Id. at
11,861. These determinations were left unchanged in
Commerce’s Final Results for the Fourth Review, pub-
lished on August 13, 2010. Certain Frozen Warmwater
Shrimp from the People’s Republic of China, 75 Fed. Reg.
49,460, 49,463 (Dep’t of Commerce Aug. 13, 2010) (final
results and partial rescission of antidumping duty admin-
istrative review).
On September 10, 2010, the Shrimp Trade Committee
appealed these Final Results to the CIT, challenging
Commerce’s selection of mandatory respondents and
certain valuations. After a remand regarding the selec-
tion of mandatory respondents, the CIT affirmed Com-
merce’s determinations. Ad Hoc Shrimp Trade Action
Comm. v. United States, 828 F. Supp. 2d 1345 (Ct. Int’l
Trade 2012), appeal docketed, No. 2012-1416 (Fed. Cir.
May 24, 2012). The CIT’s decision was appealed to this
court. While the appeal was pending before this court,
however, the Government moved for a voluntary remand
to reconsider the Final Results in light of certain infor-
mation that surfaced in the recently-concluded Sixth
AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES 7
Administrative Review. This information indicated
Hilltop might have provided false or incomplete infor-
mation regarding its affiliates in the Fourth Review. On
May 24, 2013, this court granted the Government’s mo-
tion for voluntary remand and issued its mandate. On
July 19, 2013, the CIT issued an order remanding the
Fourth Review proceedings to Commerce pursuant to this
court’s mandate.
B. Fifth Administrative Review
On April 9, 2010, Commerce initiated the Fifth Ad-
ministrative Review, covering entries of subject merchan-
dise made between February 1, 2009 and January 31,
2010. Certain Frozen Warmwater Shrimp from the So-
cialist Republic of Vietnam and the People’s Republic of
China, 75 Fed. Reg. 18,154 (Dep’t of Commerce Apr. 9,
2010) (initiation of administrative review). Hilltop was
selected as the sole mandatory respondent. The company
requested and was granted permission to file information
regarding its eligibility for separate rate status as part of
its Section A questionnaire response, instead of through a
separate rate certification. Thereafter, the company
submitted its Section A response containing the same
information as was reported in the Fourth Review. Spe-
cifically, Hilltop again reported its sales and administra-
tive facility is located in Hong Kong and it is affiliated
with several Chinese shrimp producers and processors, as
well as various companies in other third countries. It also
listed all of the shareholders and directors for each dis-
closed third-country affiliate. In response to Commerce’s
request for a list of third parties in which Hilltop or its
owners, either collectively or individually, owned five
percent or more in stock, Hilltop again stated that “[n]one
of the [Hilltop] Group companies or their individual
owners own 5 percent or more in stock in any third par-
ties.” J.A.-1514, at 94. These responses were certified by
Mr. To.
8 AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES
On February 14, 2011, Commerce published the Pre-
liminary Results for the Fifth Administrative Review.
Certain Frozen Warmwater Shrimp from the People’s
Republic of China, 76 Fed. Reg. 8338 (Dep’t of Commerce
Feb. 14, 2011) (preliminary results and preliminary
partial rescission of fifth antidumping duty administra-
tive review). In the Preliminary Results, Commerce again
found Hilltop eligible for a separate rate and calculated a
de minimis dumping margin based on Hilltop’s reported
sales and production data. Id. at 8340–41, 8343. These
determinations were left unchanged in Commerce’s Final
Results for the Fifth Review, published on August 19,
2011. Certain Frozen Warmwater Shrimp from the Peo-
ple’s Republic of China, 76 Fed. Reg. 51,940 (Dep’t of
Commerce Aug. 19, 2011) (final results and partial rescis-
sion of antidumping duty administrative review).
On September 1, 2011, the Shrimp Trade Committee
appealed the Final Results for the Fifth Review to the
CIT, challenging Commerce’s selection of mandatory
respondents and certain valuations and calculations. The
CIT remanded certain aspects of the Final Results to
Commerce for further consideration. While remand was
pending, Commerce moved for permission to reopen the
administrative record to consider new evidence from the
Sixth Review that suggested Hilltop had filed false or
incomplete information. “Because Commerce’s request to
expand the scope of remand was based on a substantial
and legitimate concern, the motion was granted.” Ad Hoc
Shrimp I, 925 F. Supp. 2d at 1317.
C. Sixth Administrative Review
Hilltop was again selected as a mandatory respondent
in the Sixth Review. In the Preliminary Results of that
review, issued on March 2, 2012, Hilltop received separate
rate status and a de minimis duty rate. See Certain
Frozen Warmwater Shrimp from the People’s Republic of
China, 77 Fed. Reg. 12,801 (Dep’t of Commerce Mar. 2,
AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES 9
2012) (preliminary results, partial rescission, extension of
time limits for the final results, and intent to revoke, in
part, of the sixth antidumping duty administrative re-
view).
On March 12, 2012, however, the Shrimp Trade
Committee placed on the record public information it
obtained following the convictions of several individuals
associated with Hilltop and its United States affiliate,
Ocean Duke Corp. (“Ocean Duke”). These materials
indicate that in March 2011, Mr. Duke Chau-Shing Lin
(“Mr. Lin”), the president of Ocean Duke, and the Gov-
ernment entered into a written plea agreement wherein
Mr. Lin pled guilty to two misdemeanor counts with
respect to the misbranding of certain fish imports. The
information includes the sentencing report prepared by
the Government, which contains information about its
five-year investigation into a scheme to transship shrimp
illegally into the United States through Cambodia begin-
ning shortly after the publication of the original anti-
dumping duty order. The information also references
Hilltop’s Cambodian affiliate, Ocean King (Cambodia)
(“Ocean King”), and includes emails from 2004 between
Mr. Lin and Mr. To discussing the establishment of a
Cambodian shrimp processing factory and the shipment
of shrimp from Vietnam to Cambodia for repackaging and
relabeling.
The documents also include import data from U.S.
Customs and Border Protection demonstrating that,
between May 2004 and July 2005, Ocean Duke (Hilltop’s
U.S. affiliate) imported over fifteen million pounds of
shrimp declared as product of Cambodia, followed by an
additional 143 entries attributable to Ocean King in the
second half of 2005. Official production data from the
Cambodian government, by contrast, indicates Cambodia
produced less than 400,000 pounds of shrimp during all of
2004 and 2005.
10 AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES
In response to this information, Hilltop again insisted
it was “not affiliated with any company producing shrimp
in Cambodia. In other words, Hilltop is not affiliated with
Ocean King. . . . Hilltop confirms that neither the com-
pany, nor its owners or officers, invested any funds in
Ocean King.” J.A.-1647, at 3424; J.A.-1514, at 3343. Mr.
To again certified these statements as “accurate and
complete.” J.A.-1647, at 3426; J.A.-1514, at 3345. Com-
merce then issued another supplemental questionnaire to
Hilltop asking, among other things, whether the company
had a Cambodian affiliate called Ocean King. The ques-
tionnaire specifically warned Hilltop that non-cooperation
could result in a rate calculated using “adverse facts
available” (“AFA”). See 19 U.S.C. § 1677e(a)(2)(A)–(D)
(2006). In its questionnaire response, Hilltop stated there
was no valid basis for making inquiries regarding prior
administrative reviews in the context of the present
(sixth) review. Relying on that argument, it only provided
information from the Fourth, Fifth, and Sixth Reviews, 5
but declined to answer questions from earlier reviews,
stating it would not be relevant to the Sixth Review. The
company also responded it was improper to investigate
transshipment allegations in an antidumping administra-
tive review proceeding. Hilltop also restated it “had no
Cambodian affiliate or Cambodian affiliates,” and “had no
affiliation or business dealings with Ocean King (Cambo-
dia).” J.A.-1647, at 3621, 3623; J.A.-1514, at 3809.
5 Because in the Sixth Review Hilltop sought a
“three-zero revocation” from the Order, which allows the
revocation of an antidumping order if, among other
things, all covered exporters and producers “have sold the
subject merchandise at not less than normal value for a
period of at least three consecutive years,” 19 C.F.R.
§ 351.222(b)(1)(i)(A) (2009), Hilltop acknowledged the
information from the Fourth and Fifth Reviews was
relevant to the Sixth Review.
AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES 11
Commerce then placed Ocean King’s Cambodian pub-
lic registration documents on the record. These docu-
ments show Ocean King was established in 2005 by Mr.
To, Hilltop’s general manager and part-owner, and two
Cambodian individuals, and that Mr. To served as one of
Ocean King’s board members and was a 35% shareholder.
Commerce then issued Hilltop another supplemental
questionnaire asking the company to reconcile its prior
responses that it had no affiliation with any Cambodian
companies with these registration documents, and again
warned that non-cooperation could result in application of
AFA.
In its response, Hilltop admitted it was affiliated with
Ocean King until September 28, 2010 (about halfway
through the Sixth Review) and that it had made “sales of
Cambodian origin shrimp” during the Fourth Review.
J.A.-1647, at 3703; J.A.-1514, at 3622. The company,
however, continued to refuse to comment on the alleged
transshipment activities. In a subsequent filing, Hilltop
explained Mr. To’s “prior statements on affiliation may
have been in error (e.g., due to his lack of operational
involvement with Ocean King or for whatever reason).”
J.A.-1647, at 2181; J.A.-1514, at 2112.
On September 4, 2012, Commerce published its Final
Results for the Sixth Review. Certain Frozen Warmwater
Shrimp from the People’s Republic of China, 77 Fed. Reg.
53,856 (Dep’t of Commerce Sept. 4, 2012) (final results of
administrative review). Commerce determined Hilltop
impeded the Sixth Review by repeatedly failing to disclose
its five-year affiliation with Ocean King and by denying
the affiliation until Commerce placed irrefutable evidence
on the record. Id. at 53,859. Further, Commerce found
Hilltop’s misrepresentations rendered the entirety of its
submissions unusable and therefore the company failed to
rebut the presumption that it was part of the China-wide
entity, as required for separate rate status. Accordingly,
12 AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES
instead of a separate rate, Hilltop was assigned the
China-wide rate of 112.81%, which was based on AFA.
D. Further Proceedings in the Fourth and Fifth Adminis-
trative Reviews
On August 5, 2013, Commerce added the information
from the Sixth Review to the Fourth Review’s record. On
the basis of this information, Commerce determined in its
Remand Results that Hilltop “provided false and incom-
plete information regarding its affiliates in the fourth
administrative review” due to its omission of Ocean King
from its list of third-country affiliates. Final Results of
Redetermination Pursuant to Court Remand (Fourth
Review), at 2 (Dep’t of Commerce Nov. 4, 2013) (J.A.-1647,
at 4034) (“AR4 Remand Results”). Commerce also deter-
mined the omission of Ocean King from Hilltop’s list of
affiliates rendered all other information submitted by
Hilltop unreliable, and consequently Hilltop had not
rebutted the presumption that it was part of the China-
wide entity. Id. Hilltop was therefore assigned the
China-wide rate of 112.81%. Id.
Similarly, on February 14, 2013, 6 Commerce placed
the information from the Sixth Review on the record for
the Fifth Review. On the basis of this information, Com-
merce concluded, as it did in the Fourth Review, that
Hilltop “provided false and incomplete information re-
6 As is evident, the Fifth Review preceded the
Fourth Review by several months and arrived at the CIT
first. The remand on corroboration issues in the Fifth
Review and the voluntary remand in the Fourth Review
then proceeded roughly simultaneously, and the corrobo-
ration analyses in the Fourth Review Remand Results
and Fifth Review Second Remand Results are identical.
For this reason, they were jointly addressed in the CIT’s
opinion in Ad Hoc Shrimp II.
AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES 13
garding its affiliates” due to its omission of Ocean King
from its list of third-country affiliates. Final Results of
Redetermination Pursuant to Court Remand (Fifth Re-
view) (First Remand), at 2 (Dep’t of Commerce Apr. 1,
2013) (J.A.-1514, at 3803) (“AR5 1st Remand Results”).
Therefore, as in the Fourth Review, Commerce deter-
mined the omission of Ocean King from Hilltop’s list of
affiliates rendered all other information submitted by
Hilltop unreliable, and the company failed to rebut the
presumption that it was part of the China-wide entity.
Id. Accordingly, Hilltop was assigned the China-wide
rate of 112.81%. Id.
In Ad Hoc Shrimp I, Hilltop challenged Commerce’s
First Remand Results for the Fifth Review as not support-
ed by substantial evidence. Ad Hoc Shrimp I, 925 F.
Supp. 2d at 1317. On July 23, 2013, the CIT sustained
Commerce’s determination to deny Hilltop separate rate
status, but remanded for review of Commerce’s selection
of the antidumping duty rate for the China-wide entity
(including Hilltop) because it found Commerce had failed
to corroborate the rate as required by statute. Id. at 1327
(“On remand, Commerce must either adequately corrobo-
rate the 112.81 percent [China]-wide rate and explain
how its corroboration satisfies the requirements of [the
statute], or calculate or choose a different countrywide
rate that better reflects commercial reality, as supported
by substantial evidence.”).
On a second remand, Commerce placed on the record
information from the underlying antidumping duty inves-
tigation and a Section 129 Proceeding 7 that followed
7 “Section 129” refers to proceedings undertaken in
response to a decision by the World Trade Organization’s
(“WTO”) Dispute Settlement Body that a United States
trade agency’s determination is inconsistent with the
United States’s obligations as a member of the WTO’s
14 AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES
China’s appeal of the original antidumping investigation
to the WTO’s Dispute Settlement Body. 8 The information
included CONNUM9-specific margin data for a mandatory
respondent in the original investigation, Shantou Red
Garden Foodstuff Co., Ltd. (“Red Garden”), as recalculat-
ed after the Section 129 Proceeding. Hilltop submitted
comments on this new data and requested additional
Antidumping and/or Subsidies and Countervailing
Measures Agreements. See 19 U.S.C. § 3538(b). The
Section 129 determination at issue here is Certain Frozen
Warmwater Shrimp from the People’s Republic of China
and Diamond Sawblades and Parts Thereof from the
People’s Republic of China, 78 Fed. Reg. 18,958 (Dep’t of
Commerce Mar. 28, 2013) (notice of implementation of
determinations under Section 129 of the Uruguay Round
Agreements Act and partial revocation of the antidump-
ing duty orders) (“Section 129 Determination”).
8 As discussed below, this information was also
used to corroborate the selection of the 112.81% rate in
the Fourth Review.
9 As described in Ad Hoc Shrimp II, 992 F. Supp. 2d
at 1296, in its antidumping proceedings, Commerce uses
different control numbers (“CONNUMs”) “to identify the
individual models of products for matching purposes.”
See, e.g., Final Results of Redetermination Pursuant to
Court Remand (Fifth Review) (Second Remand), at 5 n.18
(Dep’t of Commerce Nov. 7, 2013) (J.A.-1514, at 4262–86)
(“AR5 2nd Remand Results”). “Identical products are
assigned the same CONNUM in both the comparison
market sales database (or in a nonmarket economy con-
text, the factors of production database) and U.S. sales
database.” Id. (citing Antidumping Manual, ch. 4, at 10
(Oct. 13, 2009)). “CONNUM-specific margins result in
calculated margins that represent the pricing behavior
related to groups of sales,” grouped by model type. Id. at
13.
AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES 15
information be placed on the record. In response, Com-
merce placed on the record additional information for Red
Garden from the Section 129 Proceeding. On November
4, 2013, Commerce issued its Second Remand Results,
continuing to use the 112.81% rate as the China-wide rate
as corroborated by the additional record evidence. See
generally AR5 2nd Remand Results.
In Ad Hoc Shrimp II, the CIT addressed Commerce’s
separate rate determination for the Fourth Review as well
as its corroboration of the China-wide rate of 112.81% in
both the Fourth and Fifth Reviews. The CIT affirmed
(1) Commerce’s separate rate status determination in the
Fourth Review for the reasons stated in affirming the
Fifth Review’s First Remand Results in Ad Hoc Shrimp I,
and (2) the selection of the China-wide rate based on AFA
assigned to Hilltop for both the Fourth and Fifth Reviews.
Hilltop appeals the CIT’s affirmance of Commerce’s
denial of separate rate status in the Fourth and Fifth
Reviews as well as the CIT’s holding with respect to
corroboration of the China-wide rate Hilltop received.
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). “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
16 AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES
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)
(“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, 217 (1938).
This court’s review is limited to the record before Com-
merce in the particular 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 incon-
sistent conclusions can be drawn from the evidence.
Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966).
II. Section 502 of the Trade Preferences Extension Act of
2015 Does Not Apply to the Instant Appeals
After the court heard oral argument, President
Obama signed the Trade Preferences Extension Act of
2015 (“the Act”) on June 29, 2015. Pub. L. No. 114-27,
129 Stat. 362 (2015). Section 502 of the Act amends 19
U.S.C. § 1677e, the statute at the center of these appeals.
Id. § 502, 129 Stat. at 383–84. In plain terms, it alters
some of the standards that Commerce applies in selecting
and corroborating AFA rates for uncooperative respond-
ents. Id.
On July 10, 2015, counsel for the Shrimp Trade
Committee filed a notice of supplemental authority,
advising the court that section 502 of the Act “relates to
the statutory corroboration requirements” associated with
the appeals. Appellee’s Notice of Suppl. Authority at 2
AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES 17
(citation omitted). On August 10, 2015, Hilltop filed its
own notice of supplemental authority, informing the court
that Commerce recently issued an interpretive rule that
“clearly demonstrates that [section 502 of] the Act does
not apply to” the instant appeals. Appellants’ Notice of
Suppl. Authority at 1 (citing Dates of Application of
Amendments to the Antidumping and Countervailing
Duty Laws Made by the Trade Preferences Extension Act
of 2015, 80 Fed. Reg. 46,793 (Dep’t of Commerce Aug. 6,
2015) (“Commerce Notice”)).
Because section 502 of the Act does not address ex-
plicitly its temporal reach, the court subsequently sought
supplemental briefing from the parties. The court ob-
served that, “applying normal rules of statutory construc-
tion, it appears that Congress intended amended 19
U.S.C. § 1677e to have prospective effect.” Order Re-
questing Suppl. Briefing at 3 (Fed. Cir. Aug. 11, 2015). As
a result, the court asked the parties to focus on two ques-
tions: “(1) Whether the normal rules of statutory con-
struction warrant finding that amended 19 U.S.C. § 1677e
has prospective effect?” and “(2) If the normal rules of
statutory construction do not necessitate a particular
result, whether Commerce’s recent interpretive rule
deserves deference and, if so, what degree of deference
should be afforded?” Id. at 5.
The Shrimp Trade Committee, Hilltop, and the Gov-
ernment each filed a response on August 27, 2015. See
generally Appellee’s Suppl. Br.; Appellants’ Suppl. Br.;
Government’s Suppl. Br. Hilltop and the Government
generally contend that normal rules of statutory construc-
tion support finding that section 502 of the Act has only
prospective effect, such that it does not apply to the
instant appeals. See Appellants’ Suppl. Br. 2–6; 10 Gov-
10 The analysis in Hilltop’s supplemental brief mir-
rors the analysis that the court provided in its order
18 AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES
ernment’s Suppl. Br. 1–8. 11 The Shrimp Trade Commit-
tee takes a different view, arguing that application of
section 502 of the Act “to Hilltop’s appeals is prospective
in nature with no impermissible retroactive effect” be-
cause section 502 of the Act is “ambiguous” with respect
to its temporal reach and liquidation, the relevant trigger-
ing event, has not yet occurred. Appellee’s Suppl. Br. 3,
10. For the reasons provided, the court finds that section
502 of the Act does not apply to the Commerce determina-
tions under review.
“‘[A] statute shall not be given retroactive effect un-
less such construction is required by explicit language or
by necessary implication.’” Fernandez–Vargas v. Gonza-
les, 548 U.S. 30, 37 (2006) (quoting United States v. St.
Louis, S.F. & Tex. Ry. Co., 270 U.S. 1, 3 (1926)). The
court must first assess “‘whether Congress has expressly
prescribed the statute’s proper reach,’ . . . and in the
absence of language as helpful as that we try to draw a
comparably firm conclusion about the temporal reach
specifically intended by applying ‘our normal rules of
construction.’” Id. (first quoting Landgraf v. USI Film
Prods., 511 U.S. 244, 280 (1994); then quoting Lindh v.
Murphy, 521 U.S. 320, 326 (1997)). “If that effort fails, we
ask whether applying the statute . . . would have a retro-
active consequence in the disfavored sense of ‘affecting
requesting supplemental briefing and, thus, does not
warrant further discussion. Compare Appellants’ Suppl.
Br., with Order Requesting Suppl. Briefing. The court
addresses the Government’s arguments below.
11 Amicus Curiae Nucor Corporation also submitted
a brief on the matter, but the court does not address its
contents separately because they substantially overlap
with the points raised by the Government and the Shrimp
Trade Committee. Compare Nucor’s Suppl. Br., with
Government’s Suppl. Br. and Appellee’s Suppl. Br.
AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES 19
substantive rights, liabilities, or duties on the basis of
conduct arising before its enactment.’” Id. (brackets
omitted) (quoting Landgraf, 511 U.S. at 278). “If the
statute would operate retroactively, our traditional pre-
sumption teaches that it does not govern absent clear
congressional intent favoring such a result.” Landgraf,
511 U.S. at 280.
As previously noted, section 502 of the Act does not
state explicitly that it is retroactive or that it applies to
final administrative determinations that remain subject
to judicial review. The legislative history surrounding
section 502 of the Act similarly fails to answer the precise
question. See S. Rep. No. 114-45, at 37 (2015) (discussing
section 501, ultimately enacted as section 502). However,
applying normal rules of statutory construction, it is
evident that Congress intended section 502 of the Act to
apply only to Commerce determinations made on or after
the date of enactment. Unlike with section 502 of the Act,
Congress explicitly stated that other provisions in the Act
have retroactive effect. See, e.g., Pub. L. No. 114-27,
§ 201(b)(2), 129 Stat. at 371 (providing for retroactive
application of the generalized system of preferences to
certain entries entered prior to the date of enactment); id.
§§ 405, 407(g), 129 Stat. at 377–79, 383 (stating that the
reauthorized trade adjustment assistance laws apply to
certification petitions filed prior to the date of enactment).
Congress also explicitly provided for the delayed imple-
mentation of other provisions in the Act. See, e.g., id.
§ 601(c), 129 Stat. at 412–13 (explaining that certain
amendments to Chapter 62 of the Harmonized Tariff
Schedule of the United States “take effect on the 180th
day after the date of enactment of this Act”); id. § 602(d),
129 Stat. at 414 (explaining that certain amendments to
Chapter 64 of the Harmonized Tariff Schedule of the
United States “take effect on the 15th day after the date
of enactment of this Act”).
20 AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES
The juxtaposition of section 502 of the Act with the
legislation’s other provisions implies that, had Congress
wanted section 502 of the Act to have retroactive effect or
to apply to pending appeals, it would have said so. See,
e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 578 (2006) (“A
familiar principle of statutory construction . . . is that a
negative inference may be drawn from the exclusion of
language from one statutory provision that is included in
other provisions of the same statute.”), superseded by
statute on other grounds, Military Commissions Act of
2006, Pub. L. No. 109-366, § 7(b), 120 Stat. 2600, 2636
(2006); Lindh, 521 U.S. at 327–30 (holding that, if legisla-
tion includes a provision that expressly applies to cases
pending on the date of enactment and another provision
that does not, the construction “indicat[es] implicitly” that
the latter applies only to cases filed after the date of
enactment); Gozlon–Peretz v. United States, 498 U.S. 395,
404 (1991) (“Congress’ silence [as to the effective date for
the Anti-Drug Abuse Act (‘ADAA’) as a whole] contrasts
with the express effective date provisions for other dis-
crete sections of the ADAA.”); Russello v. United States,
464 U.S. 16, 23 (1983) (“‘[W]here Congress includes par-
ticular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed
that Congress acts intentionally and purposely in the
disparate inclusion or exclusion.’” (quoting United States
v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972)); cf.
Application of Countervailing Duty Provisions to Non-
market Economy Countries, Pub. L. No. 112-99, §§ 1(b),
2(b), 126 Stat. 265, 265–67 (2012) (explicitly providing
retroactive and prospective effective dates for various
provisions within same enactment). This inference finds
further support in Congress’s simultaneous enactment of
the provisions with different effective dates. See, e.g.,
Field v. Mans, 516 U.S. 59, 75 (1995) (“The more appar-
ently deliberate the contrast, the stronger the inference,
as applied, for example, to contrasting statutory sections
originally enacted simultaneously in relevant respects.”).
AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES 21
The legislative history also supports the inference,
given that six weeks before the Act’s passage Congress
was cognizant that it would have to decide when trade
remedy amendments under consideration would take
effect. See, e.g., S. Rep. No. 114-45, at 45 (explaining that
a particular trade remedy amendment, which Congress
ultimately did not enact, would apply to countervailing
duty investigations and reviews initiated “(1) before the
date of the enactment of this bill, if the investigation or
review is pending a final determination as of such date of
enactment; and (2) on or after such date of enactment”).
By omitting an effective date for section 502 of the Act,
while explicitly providing for different effective dates for
other provisions, Congress unambiguously intended
section 502 of the Act to apply prospectively only—i.e., to
apply only to Commerce determinations made on or after
the date of enactment. Thus, it does not govern the
Commerce determinations under review. 12
The parties’ contrary arguments are unpersuasive.
The Shrimp Trade Committee contends that the court
must find that the Act does not unambiguously identify
the effective date of section 502 of the Act because the
other provisions with retroactive effect “address circum-
stances where the relevant law had expired at the time
the conduct occurred.” Appellee’s Suppl. Br. 2. The
12 Because the court finds that section 502 of the Act
applies only to Commerce determinations made after the
date of enactment, and Commerce undoubtedly made the
determinations under review before that date, left for
another day is the question of whether Commerce’s appli-
cation of section 502 of the Act after the effective date
nevertheless has an impermissible retroactive effect
based upon events occurring prior to the effective date.
Commerce has found that it would not. See Commerce
Notice, 80 Fed. Reg. at 46,794.
22 AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES
Government similarly “hesitate[s] to place too much
emphasis on this juxtaposition because the other provi-
sions are not part of the . . . trade remedies title to which
section 502 belongs and substantively concern the exten-
sion of lapsed programs, which naturally requires Con-
gress to deal with the status of an interim period.”
Government’s Suppl. Br. 5 (citation omitted). These
arguments support, rather than undermine, the court’s
conclusion. That Congress knew it would have to address
gaps in time as a result of its reauthorization of certain
laws means that it was sensitive to the date that the Act’s
provisions would take effect, including section 502 of the
Act. Congress’s decision to delay implementation of other
aspects of the Act confirms as much, see, e.g., Pub. L. No.
114-27, § 601(c), 129 Stat. at 413; id. § 602(d), 129 Stat. at
412–13, as does the legislative history, see S. Rep. No.
114-45, at 45.
The Government contends that the subject of section
502 of the Act—“the decision-making standards Com-
merce applies in selecting and corroborating [AFA]
rates”—necessarily identifies the effective date because
“by its nature it applies only to open Commerce proceed-
ings.” Government’s Suppl. Br. 1. This tautology simply
confirms the provision’s subject matter and fails to ad-
dress the question regarding the temporal reach of section
502 of the Act. It is undisputed that section 502 of the Act
discusses “the decision-making standards Commerce
applies” in its determination. 13 As Commerce correctly
13 The Government explains that the dates of Com-
merce’s determinations, not the dates of entry, are the
relevant triggering events for purposes of a retroactive
analysis. Government’s Suppl. Br. 1–2, 4. The Shrimp
Trade Committee makes similar arguments. Appellee’s
Suppl. Br. 7–9. A particular passage from the court’s
order appears to have inspired the parties’ arguments.
AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES 23
recognized, “[t]he Act does not contain dates of application
for any of these amendments,” Commerce Notice, 80 Fed.
Reg. at 46,793, so the relevant question left to answer is
the temporal reach of section 502 of the Act.
The Government’s view that a provision’s subject mat-
ter “by its nature” dictates its effective date does not
appreciate how Congress legislates. In recently-enacted
legislation, Congress ably distinguished “decision-making
standards” from the date that those standards would take
effect. See Pub. L. No. 112-99, §§ 1(a) (discussing deci-
sion-making standards), 1(b) (discussing effective date,
including its application to pending appeals), 2(a) (dis-
cussing decision-making standards), 2(b) (discussing
effective date), 126 Stat. at 265–67. Indeed, Supreme
Court precedent teaches that, while it may be appropriate
to discern whether a statute has an impermissible retro-
active impact vis-à-vis the conduct that it regulates (i.e.,
Commerce’s decision-making standards), such an analysis
comes only after a court determines that neither a stat-
ute’s express terms nor the normal rules of statutory
construction address the question of its temporal reach.
See Fernandez–Vargas, 548 U.S. at 37. But see Govern-
ment’s Suppl. Br. 3 (citing Republic of Austria v. Altmann,
541 U.S. 677, 698 n.17 (2004)). Taken to its logical con-
clusion, the Government’s view would be that, absent an
See Order Requesting Suppl. Briefing at 3 (stating that
the court “must decide whether the amended statute
applies to the past conduct (and, thus, past entries) at
issue in this appeal”). By using the term “entries,” the
court did not intend to suggest that entry dates, rather
than the dates of Commerce’s determinations, served as
the relevant points of inquiry. Instead, we meant only to
convey the notion that Commerce’s determinations do not
exist in a vacuum and necessarily affect entries that enter
in a given period of time.
24 AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES
express retroactivity provision, any change to decision-
making standards necessarily means that legislation has
prospective effect only. Supreme Court precedent and an
examination of Congress’s past acts prevent us from
adopting that view. See, e.g., Fernandez–Vargas, 548 U.S.
at 40; Pub. L. No. 112-99, §§ 1(a)–(b), 126 Stat. at 265–67.
Finally, because the court determines that section 502
of the Act unambiguously applies only to Commerce
determinations made after the date of enactment, it need
not address the second question that it posed to the
parties. See Order Requesting Suppl. Briefing at 5 (ask-
ing “If the normal rules of statutory construction do not
necessitate a particular result, whether Commerce’s
recent interpretive rule deserves deference and, if so,
what degree of deference should be afforded?”). The court
now turns to the remaining issues on appeal.
III. Legal Framework
A. Separate Rate Status
The antidumping statute authorizes Commerce to im-
pose duties on imported goods that are sold in the United
States at less-than-fair value and that injure a domestic
industry. See 19 U.S.C. § 1673. Once an antidumping
duty order covering certain goods is in place, “Commerce
periodically reviews and reassesses antidumping duties”
during administrative reviews. Gallant Ocean (Thai.) Co.
v. United States, 602 F.3d 1319, 1321 (Fed. Cir. 2010)
(citing 19 U.S.C. § 1675(a)).
In calculating antidumping margins, Commerce gen-
erally determines individual dumping margins for each
known exporter or producer. 19 U.S.C. § 1677f-1(c)(1). If
it is not practicable to calculate individual dumping
margins for every exporter or producer, Commerce may
examine a reasonable number of respondents (mandatory
respondents), such as Hilltop. See id. § 1677f-1(c)(2). In
antidumping duty proceedings involving merchandise
AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES 25
from a nonmarket economy country, 14 however, Com-
merce presumes 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 pre-
sumption 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, 294
F.3d 1371, 1373 (Fed. Cir. 2002) (“Under the [nonmarket
economy] presumption, a company that fails to demon-
strate independence from the [nonmarket economy] entity
is subject to the countrywide rate, while a company that
demonstrates its independence is entitled to an individual
rate as in a market economy.”).
B. Adverse Facts Available
During its periodic administrative reviews, Commerce
requests information from respondents and if a respond-
ent “withholds information that has been requested by
[Commerce],” “fails to provide such information by the
14 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.” Dongtai Peak Honey Indus. Co. v. United
States, 777 F.3d 1343, 1350 n.1 (Fed. Cir. 2015) (internal
quotation marks and citation omitted).
26 AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES
deadlines . . . or in the form and manner requested,”
“significantly impedes a proceeding,” or “provides such
information but the information cannot be verified,”
Commerce is permitted to use “facts otherwise available”
in making its determinations. 19 U.S.C. § 1677e(a)(2)(A)–
(D). If Commerce further finds a respondent has “failed to
cooperate by not acting to the best of its ability to comply
with 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).
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 1323–25.
AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES 27
IV. Commerce’s Decision to Deny Appellant Separate
Rate Status Was Supported by Substantial Evidence and
Was in Accordance with Law
A. Commerce’s AFA Determination
Hilltop argues Commerce’s determination that Hilltop
was ineligible for a separate rate is unsupported by
substantial evidence and contrary to law. It notes the
decision “to reject all of Hilltop’s reported data and to
treat Hilltop as part of the [China]-wide entity as total
[AFA] . . . [was] predicated upon a single finding”: that
Hilltop failed to report its affiliation with Ocean King on
its questionnaire responses. Appellants’ Br.-1647, at 18;
Appellants’ Br.-1514, at 20. According to Hilltop, because
“the information regarding the Ocean King affiliation was
not pertinent to Commerce’s margin calculation in [the
Fourth and Fifth Reviews], there was no legitimate basis
to apply facts available or an adverse inference for its
omission.” Appellants’ Br.-1647, at 19; Appellants’ Br.-
1514, at 21 (capitalization omitted). In support, Hilltop
contends “the application of facts otherwise available and
an adverse inference requires that there be a ‘gap’ of
necessary information missing from the record,” and “[i]f
the unreported information is not necessary, then there is
no valid basis for application of any adverse inference.”
Appellants’ Br.-1647, at 24; Appellants’ Br.-1514, at 26.
That is, Hilltop contends because information regarding
third-country affiliates is “not pertinent to the calculation
of Hilltop’s margin,” Commerce has failed to show there is
a gap in the record. Appellants’ Br.-1647, at 23; Appel-
lants’ Br.-1514, at 25.
Hilltop says that its omission is not relevant because
“information regarding a third country affiliate that is not
involved in the production, sale or distribution of subject
merchandise is of no consequence in the calculation of a
dumping margin.” Appellants’ Br.-1647, at 27; Appel-
lants’ Br.-1514, at 29 (emphasis added). In support,
28 AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES
Hilltop cites a prior administrative review and asserts,
“Commerce has previously determined that the failure to
disclose an affiliate does not require an adverse inference
unless the affiliate was involved in the production or sale
of the subject merchandise during the period under re-
view.” Appellants’ Br.-1647, at 24; Appellants’ Br.-1514,
at 26 (citing Certain Stainless Steel Butt-Weld Pipe Fit-
tings from Taiwan, 70 Fed. Reg. 1870 (Dep’t of Commerce
Jan. 11, 2005) (final results of administrative review)).
Hilltop also cites the CIT’s decision in Ta Chen Stainless
Steel Pipe Co. v. United States, 31 Ct. Int’l Trade 794,
821–22 (2007) (unpublished), where it stated “[i]f, as the
plaintiff and the defendant assert, the entities allegedly
affiliated with Ta Chen within the meaning of 19 U.S.C.
§ 1677(33)(A)–(E) were in fact uninvolved with the subject
merchandise, a finding on remand of affiliation would not
have any impact thereon.”
Here, Hilltop argues, had the company disclosed its
affiliation with Ocean King, this information would have
“no impact on Commerce’s margin calculation.” Appel-
lants’ Br.-1647, at 29; Appellants’ Br.-1514, at 30. This is
because, Hilltop contends, “there were no shipments at all
of shrimp from Cambodia during the [Fourth and Fifth
Reviews]”; “Hilltop (through its US affiliate, Ocean Duke)
made only a de minimis quantity of sales of shrimp origi-
nating from Cambodia in [the Fourth Review]”; and “had
no sales of Cambodian shrimp in [the Fifth Review].”
Appellants’ Br.-1647, at 27; Appellants’ Br.-1514, at 30.
Hilltop also argues “[e]ven if the record herein did
contain substantial evidence to support allegations of
transshipment or circumvention, it would be improper to
address such allegations in the context of the [Fourth and
Fifth Review] proceeding[s].” Appellants’ Br.-1647, at 42;
Appellants’ Br.-1514, at 43. This is because, according to
Hilltop, investigations into the circumvention of anti-
dumping duty orders are “entirely separate proceeding[s]”
with “separate procedures” than administrative reviews.
AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES 29
Appellants’ Br.-1647, at 42; Appellants’ Br.-1514, at 43–
44.
Finally, Hilltop argues there is no support for Com-
merce’s use of total, as opposed to partial, AFA. Hilltop
claims Commerce “cannot support its use of total AFA
against Hilltop by claiming that the omission of Ocean
King from the list of third country affiliates justifies the
rejection of all of Hilltop’s reported data.” Appellants’ Br.-
1647, at 33; Appellants’ Br.-1514, at 35. Hilltop says this
court and the CIT “have repeatedly stated that a resort to
total AFA is only permissible if the missing or unusable
information is ‘core’ rather than ‘tangential’ to Com-
merce’s dumping determination or where the deficiencies
are so pervasive that they permeate all aspects of the
reported data.” Appellants’ Br.-1647, at 33; Appellants’
Br.-1514, at 35. In support, Hilltop cites, inter alia,
Jiangsu Changbao Steel Tube Co. v. United States, 884 F.
Supp. 2d 1295, 1305–06 (Ct. Int’l Trade 2012), where the
CIT sustained the application of total AFA because the
discovery of false statements and altered production and
accounting records impeached the reliability of all report-
ed data.
Substantial evidence supports Commerce’s determi-
nation that Hilltop’s withholding of information and its
repeated misrepresentations rendered the company’s
submissions unreliable, and therefore the company was
unable to rebut the presumption that it is part of the
China-wide entity. Under 19 U.S.C. § 1677e(a)(2), if a
respondent “withholds information that has been request-
ed by [Commerce]” or “significantly impedes a proceed-
ing,” Commerce is permitted to use “facts otherwise
available” in making its determinations. Here, Hilltop
repeatedly withheld and misrepresented information
regarding its affiliation with Ocean King. Indeed, while
the public registration documents for Ocean King identi-
fied Mr. To as “a board member and 35 percent share-
holder beginning in July 2005 and ending in September
30 AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES
2010,” AR4 Remand Results at 8; AR5 1st Remand Re-
sults at 8, Hilltop misrepresented to Commerce that
“[n]one of the [Hilltop] Group companies or their individ-
ual owners own 5 percent or more in stock in any third
parties,” AR4 Remand Results at 11; AR5 1st Remand
Results at 12, and none of Hilltop’s managers “held posi-
tions with any other firm, government entity, or industry
organization during the [period of review],” AR4 Remand
Results at 12 n.63; AR5 1st Remand Results at 13 n.65. In
addition, the record shows Hilltop subsequently denied
and concealed its affiliation with Ocean King until con-
fronted with the public registration documents unequivo-
cally revealing the affiliation. As the CIT found,
Hilltop provided no explanation of its failure to
disclose and subsequent repeated denial of its af-
filiation with Ocean King beyond a vague state-
ment that the error may have been due to Mr. To’s
lack of personal involvement with Ocean King
(despite unequivocal record evidence of his per-
sonal involvement and substantial investment
during Ocean King’s incorporation), “or for what-
ever reason.”
Ad Hoc Shrimp II, 992 F. Supp. 2d at 1291 (emphasis
added) (footnote omitted). Substantial evidence supports
Commerce’s conclusion that “Hilltop’s failure to disclose
its relationship with Ocean King . . . surely demonstrates
that it impeded the proceeding by not disclosing the
affiliation.” AR4 Remand Results at 19; AR5 1st Remand
Results at 19.
In addition to “significantly imped[ing] a proceeding,”
19 U.S.C. § 1677e(a)(2), if Commerce further finds a
respondent has “failed to cooperate by not acting to the
best of its ability to comply with a request for infor-
mation,” then it may apply AFA. Id. § 1677e(b). Here,
Commerce properly applied an adverse inference because,
through material misrepresentations and refusal to
AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES 31
respond to its inquiries, Hilltop “failed to cooperate by not
acting to the best of its ability.” See Nippon Steel, 337
F.3d at 1383 (“[I]ntentional conduct, such as deliberate
concealment . . . , surely evinces a failure to cooperate.”).
Hilltop erroneously argues there was no gap in the in-
formation necessary to calculate its dumping margin.
Commerce concluded that because Hilltop “provided false
and incomplete information regarding its affiliates,” it
could not “determine whether any other misrepresenta-
tions exist on the record with regard to Hilltop’s full
universe of affiliates, corporate structure and sales pro-
cess, or whether other information may be missing from
the record,” and therefore it was “unable to rely upon any
of Hilltop’s submissions in this segment.” AR4 Remand
Results at 2; AR5 1st Remand Results at 2. As is evident,
the necessary information missing from the record was
information supporting Hilltop’s claim that it was eligible
for a separate rate, including an accurate representation
of Hilltop’s corporate structure and indications of gov-
ernment control exercised through the company’s Chinese
affiliates. See Ad Hoc Shrimp II, 992 F. Supp. 2d at 1293.
Equally unavailing is Hilltop’s argument that its affil-
iation with Ocean King was immaterial because Ocean
King was not involved in the production of subject mer-
chandise, so disclosure would have had no effect on the
calculation of its duty rate. First, the CIT’s decision in Ta
Chen does not stand for the proposition, as Hilltop sug-
gests, that third-country affiliate information “is of no
consequence” if the affiliate is not involved in the produc-
tion, sale, or distribution of subject merchandise. Indeed,
while the CIT recognized such information might not have
an effect, it also stated “[Commerce] has discretion on
remand to request and evaluate new data. And it is not
absolutely certain that affirmative affiliation determina-
tions on remand would have no effect upon the plaintiff’s
antidumping-duty rate.” Ta Chen, 31 Ct. Int’l Trade at
822 (emphasis added) (citations omitted). Second, at
32 AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES
issue here is whether the nondisclosure affected Hilltop’s
request for separate rate status, which it surely did.
Indeed, Commerce’s decision to reject Hilltop’s submis-
sions was based on its nondisclosure of its affiliate which
called into question Hilltop’s credibility. When offered the
opportunity to explain itself, moreover, Hilltop continued
to deny its affiliation until faced with irrefutable evi-
dence. That Ocean King may not have been involved in
the production of subject merchandise is irrelevant.
Hilltop’s arguments regarding the transshipment evi-
dence are also irrelevant. As the CIT noted, “Commerce’s
decision to invalidate Hilltop’s separate rate representa-
tions as unreliable was not based on a definitive finding of
transshipment, but rather on the impeachment of
Hilltop’s credibility as a consequence of evidence reasona-
bly indicating that Hilltop deliberately withheld and
misrepresented information,” and these misrepresenta-
tions “may reasonably be inferred to pervade the data in
the record beyond that which Commerce has positively
confirmed as misrepresented.” Ad Hoc Shrimp II, 992 F.
Supp. 2d at 1293 (footnote omitted). Indeed, Commerce
properly determined both that Hilltop’s misrepresenta-
tions rendered the entirety of its submissions unreliable
and that Hilltop’s failure to respond to the transshipment
evidence prevented Commerce from evaluating the impact
of Hilltop’s misrepresentations.
Commerce also properly applied total AFA, as op-
posed to partial AFA, because Hilltop’s failure to disclose
its affiliates and its misrepresentations undermined all of
Hilltop’s submissions regarding its ownership and corpo-
rate structure, as well as Commerce’s ability to rely on
Mr. To’s certifications of those submissions. See Mukand,
Ltd. v. United States, 767 F.3d 1300, 1308 (Fed. Cir. 2014)
(“In general, use of partial facts available is not appropri-
ate when the missing information is core to the antidump-
ing analysis and leaves little room for the substitution of
partial facts without undue difficulty.”). As the CIT
AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES 33
explained, information about Hilltop’s corporate structure
“is core, not tangential, to Commerce’s analysis because it
goes to the heart of Hilltop’s corporate ownership and
control.” Ad Hoc Shrimp I, 925 F. Supp. 2d at 1324
(footnote omitted); see also Ad Hoc Shrimp II, 992 F.
Supp. 2d at 1294–95. Here, “none of [Hilltop’s] reported
data is reliable or usable” because the “submitted data
exhibited pervasive and persistent deficiencies that cut
across all aspects of the data.” See Zhejiang DunAn
Hetian Metal Co. v. United States, 652 F.3d 1333, 1348
(Fed. Cir. 2011).
B. Hilltop’s Claimed Exemption from the Separate Rate
Analysis
Next, Hilltop argues it was “improper to consider
Hilltop part of the [China]-wide entity because Commerce
has repeatedly confirmed that exporters located in Hong
Kong and other market economy locations are exempt
from the separate rate test and are automatically granted
separate rate status.” Appellants’ Br.-1647, at 46–47;
Appellants’ Br.-1514, at 48 (emphasis added). The com-
pany says “Commerce’s established policy is that export-
ers who are 100% foreign-owned and/or exporters who are
located in a market economy country are not subject to
the separate rate analysis and receive separate rate
status automatically.” Appellants’ Br.-1647, at 48; Appel-
lants’ Br.-1514, at 49–50 (emphasis added).
Hilltop’s claim that its Hong Kong location automati-
cally entitles the company to a separate rate is flawed
because it ignores the potential for government control
through Hilltop’s affiliates. Thus, the company’s registra-
tion is not dispositive. While Hilltop points to examples
where Commerce has accepted certifications that compa-
nies are free from government control without a full
separate rate analysis, this does not mean Commerce
must automatically grant separate rate status when a
company’s false representations regarding its corporate
34 AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES
structure call its certification into question, particularly
when the company has affiliates located in nonmarket
economy countries. Accordingly, Commerce properly
concluded “[a]lthough Hilltop claims that it is a Hong
Kong-based exporter and therefore placement in the
[China]-wide Entity is inappropriate, the undisclosed
affiliation and unreliability of information on the record
prevent us from determining with certainty the ownership
and/or control of Hilltop.” AR4 Remand Results at 58;
AR5 1st Remand Results at 36.
V. Commerce’s Selection of the Country-Wide Antidump-
ing Duty Rate Was Supported by Substantial Evidence
Hilltop also challenges Commerce’s corroboration of
the AFA rate applied to Hilltop as part of the China-wide
entity as unsupported by substantial evidence and contra-
ry to law. Commerce selected the 112.81% rate as the
China-wide rate in both the Fourth and Fifth Reviews,
noting it was the lowest rate listed in the original anti-
dumping petition, and was subsequently assigned as the
China-wide rate in the investigation and each successive
administrative review of the order.
As previously explained, Commerce sought to more
fully explain its corroboration analysis on remand in both
the Fourth and Fifth Reviews. Commerce began by
reexamining its use of the petition rate as the China-wide
rate in the underlying antidumping investigation. In the
investigation, Commerce corroborated the petition rate by
comparing it to the dumping margins calculated for a
respondent called Allied Pacific Group (“Allied”), which
Commerce found to be a significant producer of subject
merchandise. In this analysis, Commerce found that “a
significant percentage of Allied’s [CONNUMs] [had]
positive margins and that a significant volume of those
CONNUMs had margins which exceeded the lowest
Petition margin of 112.81 percent.” AR4 Remand Results
at 32; AR5 2nd Remand Results at 5. Accordingly, Com-
AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES 35
merce found the petition rate of 112.81% was relevant to
the investigation and had probative value.
For purposes of the Fourth and Fifth Reviews, Com-
merce acknowledged the margins of the mandatory re-
spondents in the investigation had changed following
litigation, so it “revisited the record of the [investigation]
to determine whether margins calculated in the Petition,
and vetted and revised by [Commerce] at that time,
remain relevant to the investigation and have probative
value.” AR4 Remand Results at 32; AR5 2nd Remand
Results at 5. To this end, Commerce “examined the record
evidence with respect to the revised margin calculations
and . . . confirmed that although the final weighted-
average margins may have been downwardly revised,
significant percentages of positive, CONNUM-specific
margins remain” and “significant volumes of CONNUM-
specific margins continue to be higher than the lowest
Petition margin of 112.81 percent for one respondent.”
AR4 Remand Results at 32–33; AR5 2nd Remand Results
at 5.
Specifically, Commerce placed additional information
on the record concerning margins calculated for Red
Garden, a mandatory respondent in the investigation,
which was also the largest single exporter of subject
merchandise with the highest volume of sales during the
period of investigation. The information consisted of a file
(the “Red Garden Margin File”) created using Red Gar-
den’s data from the original investigation as recalculated
to reflect the changes resulting from both domestic litiga-
tion and the Section 129 Proceeding completed in March
2013. AR4 Remand Results at 35; AR5 2nd Remand
Results at 7–8; see also J.A.-1647, at 3938–40; J.A.-1514,
at 4168–70. The Red Garden Margin File listed every
CONNUM-specific margin calculated for Red Garden.
Commerce also supplemented the Red Garden Margin
File with an analysis memo (“Red Garden 129 Analysis
Memo”) that accompanied Commerce’s recalculation of
36 AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES
Red Garden’s investigation margin for the Section 129
Proceeding. The memo included the complete output of
the statistical analysis software used in recalculating Red
Garden’s margins. AR4 Remand Results at 35; AR5 2nd
Remand Results at 8; see J.A.-1647, at 3963–4015; J.A.-
1514, at 4193–245. Based on this information, Commerce
determined the updated Red Garden dumping margins
were relevant for purposes of corroboration of the 112.81%
petition rate.
Commerce then analyzed Red Garden’s sales data,
factors of production data, and margin calculations,
taking into account the revisions resulting from judicial
review. This analysis revealed more than half of the
CONNUMs in Red Garden’s margin calculation had
positive margins. “Of those CONNUMs with positive
margins,” Commerce found, “the percentage with dump-
ing margins exceeding 112.81 percent is sufficient to
demonstrate the probative value of the lowest Petition
margin of 112.81 percent.” AR4 Remand Results at 34;
AR5 2nd Remand Results at 7. In addition, Commerce
found that, by quantity, the “CONNUMs accounting for a
significant volume of merchandise under consideration
were sold at prices that resulted in margins which exceed
112.81 percent.” AR4 Remand Results at 34; AR5 2nd
Remand Results at 7. Therefore, Commerce concluded
“the Petition rate [of 112.81%] continues to be relevant to
this investigation, even after taking into account subse-
quent changes to the original calculations pursuant to
remand redetermination, and the rate to be corroborated
for purposes of [these remands].” AR4 Remand Results at
34; AR5 2nd Remand Results at 7.
Hilltop argues “neither the AFA rate from the petition
nor the information Commerce used for its corroboration
were probative of the commercial reality” during the
Fourth and Fifth Reviews, and “Commerce disregarded
record evidence demonstrating the unreliability of the
small group of sales data from the original investigation
AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES 37
used for its corroboration.” Appellants’ Br.-1647, at 58;
Appellants’ Br.-1514, at 60–61. The company contends
Commerce continues to use the outdated margin from the
2003 petition and corroborates that rate with equally
outdated sales data from the original investigation.
Furthermore, Hilltop contends there was “a wealth of
information from more recent reviews (as well as recalcu-
lated margin results from the original investigation),”
which demonstrate the 112.81% rate is not commercially
reasonable. Appellants’ Br.-1647, at 60; Appellants’ Br.-
1514, at 63. Therefore, Hilltop argues, it was unreasona-
ble for Commerce to rely on the outdated information
from the investigation to corroborate the petition rate.
Hilltop further argues “the unbroken history of calcu-
lated margins that are, at best, a mere fraction of the
112.81% petition rate” further undermines Commerce’s
corroboration of the AFA rate. Appellants’ Br.-1647, at
61; Appellants’ Br.-1514, at 63. Hilltop points to coopera-
tive respondents in the investigation who received zero or
de minimis margins after recalculation pursuant to the
Section 129 Proceeding, as well as cooperative respond-
ents in the First through Fourth Administrative Reviews,
who with one exception received zero or de minimis
margins. The company also points out that Red Garden’s
overall margin from the Section 129 Proceeding was zero.
Therefore, to Hilltop, “[g]iven this history of extremely
low margin results extending over multiple years, it is
plainly evident that the 112.81% rate from the petition
does not reflect commercial reality and is punitively
high.” Appellants’ Br.-1647, at 61; Appellants’ Br.-1514,
at 64; see also Appellants’ Br.-1647, at 62–63; Appellants’
Br.-1514, at 65 (“Commerce is applying an AFA rate
based on outdated and cherry-picked data that is over
twelve times higher than the highest rate ever calculated
for a cooperative respondent.”).
Commerce properly corroborated its selection of the
petition rate as the China-wide rate based on AFA. As to
38 AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES
Hilltop’s claim that the relevancy of the information is
undermined by its age, the age of information alone does
not render the information unreliable, particularly when
Commerce revisits that information with more recent
data. Indeed, as the CIT noted, “Hilltop ignores judicial
precedent holding that the continued reliability and
relevance of data from prior segments of an antidumping
proceeding is presumed absent rebutting evidence.” Ad
Hoc Shrimp II, 992 F. Supp. 2d at 1301 (citing KYD, 607
F.3d at 764–68). Here, Commerce corroborated the peti-
tion rate using information from the more recent Section
129 Proceeding and incorporated post-investigation
changes due to domestic and international litigation.
Thus, that the AFA rate was selected from the 2003
petition does not undermine its relevance in light of
Commerce’s detailed explanation of why the rate contin-
ues to be relevant based on updated record evidence. This
is not to say that outdated data would continue to be
reliable if there was available more recent data on the
record for non-cooperating respondents, but here the data
Hilltop points to is that of cooperative respondents. And
the most recent China-wide rate was 112.81%, as it was
used in the antidumping investigation and each succes-
sive administrative review of the antidumping duty order.
As to Hilltop’s argument regarding the availability of
lower margins calculated for cooperating respondents, the
company’s reliance on separate rates calculated for coop-
erative companies is unavailing. As the Government
points out, “the fact that lower dumping margins have
been calculated for respondents that have demonstrated
their eligibility for a separate rate in certain segments of
this proceeding has little bearing on the rate applied to
the China-wide entity.” Government’s Br.-1647, at 67;
Government’s Br.-1514, at 69. Indeed, as the CIT found,
“[i]n the [nonmarket economy] context, . . . the inference
that the countrywide entity as a whole may be dumping
at margins significantly above the cooperating separate
AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES 39
rate market participants is not unreasonable.” Ad Hoc
Shrimp II, 992 F. Supp. 2d at 1300. Furthermore, this
court has clarified that AFA rates can be significantly
higher than rates calculated for cooperating respondents,
see, e.g., KYD, 607 F.3d at 765–66 (affirming application
of petition rate many times higher than those of cooperat-
ing respondents), particularly since such rates should
reflect an “inference that is adverse to the interests of
that party,” 19 U.S.C. § 1677e(b). Indeed, “Commerce
need not select, as the AFA rate, a rate that represents
the typical dumping margin for the industry in question.”
KYD, 607 F.3d at 765–66.
In addition, Hilltop’s argument that Commerce should
rely on the rates assigned to mandatory respondents in
the prior reviews ignores that these rates include those
calculated for Hilltop itself during the time it concealed
Ocean King, thus calling into question their reliability.
Furthermore, Hilltop’s claim that Commerce should have
considered Red Garden’s overall margin of zero would
conflict with the stated purpose of AFA, which ensures an
uncooperative “party does not obtain a more favorable
result by failing to cooperate than if it had cooperated
fully.” Statement of Administrative Action accompanying
the Uruguay Round Agreements Act, H.R. Rep. No. 103-
316, vol. 1, at 870 (1994), reprinted in 1994 U.S.C.C.A.N.
4040, 4199. Indeed, as the Government states, “[t]he
point of corroboration is to ensure that an adverse rate is
relevant and probative, not to assign a rate to an uncoop-
erative respondent as if it had cooperated.” Government’s
Br.-1647, at 71; Government’s Br.-1514, at 72; see De
Cecco, 216 F.3d at 1032 (explaining that an AFA rate
should be “a reasonably accurate estimate of the respond-
ent’s actual rate, [here, the China-wide entity,] albeit with
some built-in increase intended as a deterrent to non-
compliance” (emphasis added)).
Accordingly, Commerce reasonably relied on the sig-
nificant volume of sales by the largest cooperating export-
40 AD HOC SHRIMP TRADE ACTION COMM. v. UNITED STATES
er, Red Garden, to conclude a non-cooperative respondent
could have made sales at the same rate. For this reason,
substantial evidence supports Commerce’s determination
that the Red Garden sales data establish “the commercial
reality that a significant quantity and value of CON-
NUMs were sold at prices that resulted in [antidumping]
margins exceeding 112.81 percent,” which “confirms the
continued reliability of the 112.81 percent rate and rele-
vance to the [China]-wide entity as a whole.” AR4 Re-
mand Results at 41; AR5 2nd Remand Results at 14.
CONCLUSION
Accordingly, the decisions of the United States Court
of International Trade are
AFFIRMED